Helsby-Knight v R - [2015] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

CA261/2015
[2015] NZCA 315

BETWEEN	MICHAEL HELSBY-KNIGHT Appellant
AND	THE QUEEN Respondent

Hearing:	1 and 3 July 2015
Court:	Winkelmann, Lang and Wylie JJ
Counsel:	P J Kaye for Appellant M D Downs for Respondent
Judgment:	21 July 2015 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BMr Helsby-Knight’s sentence of three years and four months’ imprisonment is quashed. A sentence of three years and one months’ imprisonment is substituted.
CMr Helsby-Knight is to surrender his bail to the Registrar of the District Court at Manukau by presenting himself to the Customer Service Centre, 30 Manukau Station Road, between 1.00 pm and 3.00 pm on Thursday, 23 July 2015.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

Initially this matter came before the Court, at short notice, as an application to vary conditions attached to a grant of bail ordered by Venning J in the High Court on 8 May 2015.[1] Mr Helsby-Knight had been in custody because, on 1 May 2015, he was sentenced by Judge Andrée Wiltens in the Manukau District Court to a term of imprisonment of three years and four months in relation to various fraud-related charges laid pursuant to the Crimes Act 1961.[2] Mr Helsby-Knight appealed this sentence. The appeal was due to be heard in this Court on 22 July 2015. There were a number of potential difficulties with the application to vary bail, and, at counsels’ request and after a two day adjournment to enable counsel to prepare, we heard the substantive appeal against sentence instead.

Background

[1]Helsby-Knight v Chief Executive of the Department of Corrections [2015] NZHC 977.

[2]R v Helsby-Knight [2015] NZDC 7568.

Mr Helsby-Knight was facing 117 charges, all laid indictably under the Crimes Act, in 2012. There were 48 charges of dishonestly, and without claim of right, using a document with intent to obtain pecuniary advantage contrary to s 228(b) of the Crimes Act. There were 69 charges of causing loss to other persons by deception and without claim of right, contrary to s 240(1)(d) of the Crimes Act. All of the offending occurred between July 2011 and mid-2012.
Mr Helsby-Knight initially entered pleas of not guilty. He had a record of fraud-related offending and he was remanded in custody. There was a considerable delay in bringing the charges to trial and Mr Helsby-Knight applied for bail. This initial application was declined by Judge Field in November 2014.[3] Mr Helsby‑Knight appealed that decision. The appeal was allowed and he was granted Electronic Monitoring (EM) bail on a 24-hour curfew and on various other restrictive conditions by Gilbert J on 5 February 2015.[4]
[3]R v Helsby-Knight DC Auckland CRI-2012-004-13672, 7 November 2014.
[4]Helsby-Knight v R [2015] NZHC 85.
On 19 March 2015 Mr Helsby-Knight came before the District Court again. He sought to be released from the condition requiring that his bail be electronically monitored. The police in…

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.

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Details

Case: [2015] NZCA 315
Decision Date: 21 July 2015 at 3.30 pm

CaseChat Overview and Summary

The appellant, Michael Helsby-Knight, appealed against his sentence of three years and four months’ imprisonment, imposed by Judge Andrée Wiltens in the Manukau District Court. The appeal was heard in the Court of Appeal of New Zealand. The central issue was whether the District Court Judge had erred in imposing a sentence that exceeded the appropriate range, and whether the sentence could be reduced to reflect the time Mr Helsby-Knight had already spent in custody and on electronic monitoring bail.

The Court of Appeal first assessed the starting point for the sentence, which required consideration of the nature, sophistication, and duration of the offending, as well as the number of victims. Mr Helsby-Knight's offending involved three distinct fraudulent schemes, which were executed with considerable industry and premeditation. The Court found that the starting point of three years and six months was within range, although arguably on the lower end. Given the complexity and scale of the offending, the Court decided not to increase the starting point.

Next, the Court considered whether the starting point should be uplifted or reduced to account for Mr Helsby-Knight's personal circumstances. The appellant had a history of fraud-related convictions, which justified an uplift of four months. The Court also recognised that Mr Helsby-Knight had spent five months on electronic monitoring bail, and granted a three-month discount for this period. Additionally, the Court allowed a 15 per cent discount for the appellant's guilty pleas, which saved the Crown from having to conduct a lengthy trial.

Taking all these factors into account, the Court of Appeal allowed the appeal and substituted a sentence of three years and one month's imprisonment for each of the three charges, to be served concurrently. The Court also ordered Mr Helsby-Knight to surrender his bail to the Registrar of the District Court at Manukau by presenting himself at the Customer Service Centre on 23 July 2015.

Orders