Drever v Police - [2022] NZHC 3179

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-318

[2022] NZHC 3179

BETWEEN
AARON CARL DREVER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2022

Appearances:

J Olsen for Appellant

W N Fotherby and J L Gibson for Respondent

Judgment:

30 November 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 30 November 2022 at 3pm

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

DREVER v POLICE [2022] NZHC 3179 [30 November 2022]

Introduction

[1] Aaron Drever (the appellant) appeals against the decision of Judge EM Thomas delivered on 12 August 2022 sentencing him to two years and two months’ imprisonment and ordering him to pay reparation of $75,000 on charges of fraud related offending. The grounds of appeal allege that the sentence imposed is manifestly excessive. The appellant says that while the Judge allowed him appropriate discounts for remorse and personal circumstances, he failed to allow a discount for his previous good character and prospects of rehabilitation. The appellant says that had such a discount been allowed, the purposes of sentencing could have been adequately met by a sentence of home detention, and he seeks an order setting the sentence aside and for a sentence of home detention to be substituted in its place.

Background

The charges

[2]The appellant pleaded guilty to the following charges:

(a)making a false document (x 2);1

(b)dishonestly using a document (x 2); 2 and

(c)obtaining by deception.3

The offending

[3]Judge Thomas conveniently summarised the offending as follows:4

[11] On 16 December 2016 you were a suspended real estate agent. You arranged to sell a portion of land then belonging to the Avondale Bowling Club. Unbeknown to the club, you set up a company with which you were associated to buy the land. You also set up an immediate on-sale of that property.

1      Crimes Act 1961, s 256(1): carrying a maximum penalty of 10 years’ imprisonment.
2      Section 259(1)(a): carrying a maximum penalty of 10 years’ imprisonment.
3      Sections 240(1)(a) and 241(a): carrying a maximum penalty of seven years’ imprisonment.
4      New Zealand Police v Drever [2022] NZDC 15363.

[12] You convinced the Bowling Club to sell the land for $330,000. Your company bought it for that price. You immediately on-sold it as you had agreed with the purchaser for $825,000. You did not disclose your association with any of the parties to any of the others. That way, you illegally obtained
$466,000, give or take.

[13] In September 2019, you approached those involved with putting on speedway events at Western Springs. You asked to assist. You convinced them that you should. They agreed. Between October and December 2019 you submitted 10 invoices to them under the name Billboard Solutions. Those invoices were false. All you had manufactured, all were paid, and that way you illegally obtained $86,000. You also did the same in respect of two invoices under the name Toy and Model Collectors Market Limited. That is a fictitious…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Drever v Police

Details

AGLC: Drever v Police [2022] NZHC 3179
Case: [2022] NZHC 3179
Decision Date: 30 November 2022

CaseChat Overview and Summary

Aaron Drever appeals against his sentencing by Judge Thomas, arguing that the sentence imposed is manifestly excessive. Drever contends that the sentence does not account for his previous good character and prospects of rehabilitation, which would have warranted a discount to the sentence. He argues that a sentence of home detention would have been adequate. The court must determine whether the sentence imposed by the District Court is within the appropriate range, considering the seriousness of the offending and the factors the District Court did and did not take into account when determining the sentence.

The court examined the nature and seriousness of the offending, the extent of the harm caused to the victims, and the factors the District Court considered when determining the sentence. The court noted that the offending involved a significant breach of trust and was premeditated and calculated, resulting in a substantial financial loss to the victims. The court further considered the appellant's history of professional misconduct as a real estate agent, which demonstrated that the appellant could not be regarded as a person of good character. The court concluded that the District Court Judge did not err in imposing a sentence of two years and two months' imprisonment, as it was within the appropriate range for the offending. The court further found that the Judge did not err by failing to allow a discount for the appellant's previous good character, as the appellant did not qualify for such a discount.

The appeal is dismissed. The sentence imposed by the District Court is affirmed.

Orders