Hunter v Police - [2012] NZHC 3249

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-000013 [2012] NZHC 3249

BETWEEN BRIAN DAMIEN HUNTER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 December 2012 (at Wellington) Counsel: N J Sainsbury for Appellant
I R Murray for Respondent

Judgment: 4 December 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.30am on the 4th day of December 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1] On 5 June 2012 Mr Hunter was sentenced in the Palmerston North District

Court to:

(1) 12 months’ home detention; and

(2) 100 hours’ community work.

These sentences were imposed after Mr Hunter had previously pleaded guilty to six charges of forgery. Mr Hunter appeals the sentence that was imposed.

HUNTER V NEW ZEALAND POLICE HC PMN CRI-2012-454-000013 [4 December 2012]

[2] Mr Hunter’s appeal was initially prosecuted on the grounds that the sentence imposed by the District Court was “clearly excessive ... or inappropriate”.[1]
However, today, Mr Sainsbury, counsel for Mr Hunter focused on the proposition that the appeals should be allowed because “substantial facts relating to ... the offender’s character or personal history were not before the Court imposing sentence”.[2]

[1] Summary Proceedings Act 1957, s 121(3)(b).

[2] Section 121(3)(b).

[3] I have resolved to allow the appeal on this second ground of appeal but state from the outset that my conclusion is a finely balanced decision and is based solely on the fact that I have had the benefit of important information that was not available to the sentencing Judge.

The offending

[4] Mr Hunter’s offending was helpfully summarised by the District Court Judge in the following way:[3]
[3] Police v Hunter DC Palmerston North CRI-2011-054-000834, 5 June 2012 at [2]-[8].

In March 2009 Mr Hunter disclosed to the woman he was in a relationship with that he was having financial problems and because of that was unable to purchase a property. The first forgery was when Mr Hunter forwarded to her an email purportedly from Mr Pratley [a lawyer] which indicated that Mr Pratley had advised Mr Hunter that he could get someone else to purchase a property in their own right, then enter into a private contract with him where Mr Hunter would live in the property and make mortgage payments.

The second fraud was the same day, 10 December 2009, where Mr Hunter sent another email again containing the header and footer from Mr Pratley, purporting to indicate that Mr Pratley had consulted associates and confirmed that his previous advice was sound and the best course of action.

The third fraud was 16 December 2009 where Mr Hunter sent another email, again containing the header and footer from Mr Pratley purporting to indicate that Mr Pratley had also made the offer of being guarantor for Mr Hunter, but he was unable to do so for legal reasons. The email outlined Mr Pratley looking at a property for Mr Hunter and advising that one residence in particular would…

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 Hunter v Police

Details

AGLC: Hunter v Police [2012] NZHC 3249
Case: [2012] NZHC 3249
Decision Date: 4 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the appeal of Brian Damien Hunter against his sentence imposed by the Palmerston North District Court was heard. Mr. Hunter had pleaded guilty to six charges of forgery and was sentenced to 12 months of home detention and 100 hours of community work. The primary issue before the court was whether the sentence imposed was appropriate, considering the substantial facts relating to Mr. Hunter's character and personal history that were not before the District Court at the time of sentencing.

The court found that the original sentence was excessive and inappropriate, particularly because it failed to consider the significant impact of Mr. Hunter's mental health issues on his risk of reoffending. The court relied on a more recent pre-sentence report and expert psychiatric evidence, which indicated that Mr. Hunter's employment prospects were crucial for his mental well-being and reducing the likelihood of reoffending. The court concluded that a less restrictive sentence, such as community detention, would better serve the purposes of accountability, deterrence, and the imposition of the least restrictive sentence appropriate in the circumstances. Consequently, the appeal was allowed, and the sentences of home detention and community work were quashed, replaced by a sentence of six months of community detention with specific conditions.

The final orders of the court included substituting the original sentences with six months of community detention, with Mr. Hunter being curfewed to his address in Hastings, subject to electronic monitoring, and required to report to the community probation service. The court also recognized the potential need for Mr. Hunter to transfer to an address in Blenheim to continue his work, subject to approval by the Department of Corrections.

Orders