Hunter v The Queen
[2021] NZCA 455
•9 September 2021 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA709/2020 [2021] NZCA 455 |
| BETWEEN | BRIAN DAMIAN HUNTER |
| AND | THE QUEEN |
| Court: | French, Mander and Palmer JJ |
Counsel: | C J Tennet for Applicant |
Judgment: | 9 September 2021 at 10 am |
JUDGMENT OF THE COURT
Application for leave to appeal declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
Brian Hunter pleaded guilty to one charge of causing loss by deception and one charge of theft following an indicated sentence of seven months’ home detention provided by Judge Hastings in the District Court at Wellington.[1] He was sentenced to six months’ community detention, 100 hours’ community work, and reparation in the amount of $3,000.[2] His appeals to the High Court against both conviction and sentence were dismissed by Clark J.[3]
[1]Crimes Act 1961, ss 240(1)(d) and s 241(a) ― maximum penalty of seven years’ imprisonment; and sections 219 and 223(b) ― maximum penalty of seven years’ imprisonment. An adjustment to the sentence, however, was necessary because Mr Hunter’s sentence of community detention had not been suspended when he filed his appeal to the High Court. Clark J ordered the period between the appeal being filed and when the Department of Corrections realised its mistake (21 August to 29 September 2020) be deducted from the sentence of community detention.
[2]R v Hunter [2020] NZDC 16103 [Sentencing notes] at [25].
[3]Hunter v R [2020] NZHC 3209 [High Court judgment].
Mr Hunter now seeks leave to appeal to this Court on the basis the sentence was manifestly excessive and inappropriate, and that he should have been discharged without conviction.
Background
The charges arose from Mr Hunter’s contact with a British-based firm that specialised in managing network services. In March 2007, Mr Hunter falsely portrayed himself as a consultant working with the Ministry of Education who had responsibility for improving network connections within New Zealand schools. He offered to act as the British firm’s New Zealand agent.
Believing that Mr Hunter was a genuine distributor and installer of IT equipment and networks to the New Zealand education system, the firm supplied Mr Hunter with electronics equipment on the understanding it would be used for a trial in schools and lead to a nationwide roll-out contract. These devices were worth some $30,000. Mr Hunter also advised the British firm that he was expecting to obtain a multi‑million-dollar contract to install IT equipment in schools. This led the company to increase its support and to dedicate a team to assist with his requests.
This pretence appears to have continued for a number of years. In January 2011, the British firm advised Mr Hunter that it was to meet a Ministry of Education representative at an exhibition in the United Kingdom. However, Mr Hunter told the firm this person could not be trusted. As a result, it declined to meet with the representative. In September 2012, the firm received an anonymous email advising that Mr Hunter was “a convicted fraudster”. When it sought an explanation from Mr Hunter regarding this allegation, he did not respond or communicate further with the firm.
None of the equipment was returned and, in November 2012, Mr Hunter sold an item supplied by the British firm (a cache box) for $3,000. In July 2015, police executed a search warrant at Mr Hunter’s residence where a number of devices belonging to the British firm (five cache boxes) were located. Other items of the supplied equipment (two cache boxes and two servers) were not recovered.
Grounds of the proposed second appeal
Mr Hunter seeks to advance several grounds on his proposed appeal:
(a)The District Court Judge, in declining to discharge him without conviction, erred in his assessment of the consequences of conviction and “the question of proportionality”.
(b)Alternatively, the sentence of community detention was inappropriate and manifestly excessive. A number of arguments are advanced regarding the sentence, including that the starting point adopted by the Judge was too high and that an uplift for previous offending should not have been made because of a “break” in Mr Hunter’s offending history.
Analysis of the proposed appeal
In order to be granted leave to bring a second appeal, Mr Hunter must satisfy us that his appeal involves a matter of general or public importance,[4] or that a miscarriage of justice may have occurred, or may occur, unless his appeal is heard.[5] The threshold for leave is high.[6] We do not consider the matters raised by Mr Hunter in support of a second appeal, either individually or collectively, satisfy the high test for leave.
The application for discharge
[4]Criminal Procedure Act 2011, ss 237(2)(a) and 253(3)(a).
[5]Sections 237(2)(b) and 253(3)(b).
[6]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Mr Tennet, on behalf of Mr Hunter, complains that illegitimate information had been raised in front of the District Court at prior hearings before Mr Hunter’s sentencing,[7] that the Crown prosecutor had a conflict of interest, and that Mr Hunter suffered adverse media publicity regarding his past convictions for fraud after his sentencing.
[7]These matters include that Department of Corrections staff were “not being safe” with Mr Hunter and that there was an extant minor charge that was later withdrawn.
The relevance of these complaints to Judge Hastings’ assessment of the merits of discharging Mr Hunter without conviction is not entirely clear. They are insufficient to support his contention the Judge erred in his assessment of the consequences of convicting Mr Hunter, or his conclusion that such consequences would not be out of all proportion to the gravity of the offending.[8] There is no basis upon which to suggest Judge Hastings took any irrelevant matters into account in dismissing Mr Hunter’s application for discharge. Nor is there any nexus between the complaint relating to the Crown being allegedly conflicted and the Judge’s approach to the sentencing exercise. To the extent there was negative media coverage of Mr Hunter’s fraudulent conduct, it was the expected product of his offending and past record.
[8]Sentencing notes, above n 2, at [12]–[13]; and Sentencing Act 2002, ss 106–107.
We accept the Crown’s submission there was never any realistic prospect of Mr Hunter being discharged without conviction. When regard is had to his history of dishonesty, and the nature and seriousness of the fraudulent offending that continued over some five years and involved a loss of $37,000, the outcome of his application to be discharged was entirely predictable. Insofar as Mr Hunter complains of delays in the processing of his case, that feature could not to any material degree bear on the question of discharge given the circumstances of his offending, and was properly taken into account by Judge Hastings when setting the sentence imposed.[9]
[9]At [21(c)].
It follows from these findings that Mr Hunter has failed to identify either a matter of general or public importance that would justify a second appeal, or that any miscarriage of justice has arisen or may arise from the District Court’s refusal to discharge him without conviction.
The sentence
We now turn to the actual sentence imposed. Mr Tennet accepts that the grounds he sought to raise were the same as those put before the High Court. While Mr Tennet seeks to argue that the sentencing decisions relied upon by Judge Hastings were distinguishable, it is not apparent they involved other than broadly comparable offending,[10] nor that Clark J’s conclusion that the starting point was “clearly appropriate” was in error.[11] We consider the six-month uplift for Mr Hunter’s criminal history was properly available and note that Judge Hastings in setting that uplift expressly recognised that Mr Hunter had been free of convictions for some eight years.[12]
[10]Haereroa v Police [2019] NZHC 318; Anderton v Police [2018] NZHC 437; and Gobey v Police [2018] NZHC 1555.
[11]High Court judgment, above n 3, at [28].
[12]Sentencing notes, above n 2, at [21(a)].
An appeal court’s focus must be on the final sentence imposed.[13] We agree with Clark J’s observations that the discounts afforded to Mr Hunter, which approach 50 per cent, after entering pleas on the first day of his trial were generous.[14] The sentence finally imposed was more favourable than that initially indicated by the District Court and reflected that which had been advocated by Mr Hunter’s counsel on his behalf.
[13]See Vaipo v R [2009] NZCA 206 at [17].
[14]High Court judgment, above n 3, at [28].
There is nothing on the face of Judge Hastings’ sentencing remarks to indicate he failed to adequately take into account a psychiatric report filed in support of Mr Hunter, as submitted by Mr Tennet. To the contrary, the contents of that report resulted in a six-month discount.[15] Nor is there anything to suggest that it was supplanted by an alcohol and drug report which is not referred to in Judge Hastings’ sentencing notes. Similarly, a submission that the three-month discount in acknowledgement of Mr Hunter engaging in, although not completing, a restorative justice process was inadequate is without merit.
[15]Sentencing notes, above n 2, at [21(b)].
The sentence imposed by Judge Hastings in the District Court and the subsequent judgment of the High Court on appeal involved the application of orthodox sentencing principles. The proposed second appeal does not give rise to any important question of law which would have any wider application beyond the circumstances of this particular case.[16] Nor is there any discernible basis upon which it can be realistically argued that Mr Hunter has suffered a miscarriage of justice as a result of the sentence imposed.
[16]See McAllister v R, above n 6, at [36].
The high threshold for granting leave for a second-tier review of the sentence has not been satisfied. It follows that Mr Hunter’s application for leave to appeal against his sentence must fail.
Result
The application for leave to appeal is declined.
Directions for resumption of suspended sentence
Mr Hunter’s sentence of community detention and community work is currently suspended. It will resume from the date of this judgment, being the date on which the application for leave to appeal is refused.[17] In accordance with s 346(2)(a) of the Criminal Procedure Act, the Registrar is to notify the controlling officer of the probation area in which the sentence is to be served of the date on which the sentence is to resume and, because Mr Hunter was not present in Court at the time his application for leave to bring a second appeal was disposed of, the Registrar must also notify him of that date.[18]
[17]Criminal Procedure Act, s 345(2)(b).
[18]Section 346(2)(b).
Mr Hunter is required to report for his sentence in accordance with the same reporting requirements that previously applied to him after the sentence was originally imposed by the District Court.[19] However, Mr Hunter is presently trespassed from Community Corrections sites and alternative directions are required. Accordingly, he is ordered to make telephone contact with his probation officer not later than 48 hours from the date of this judgment. The Department of Corrections may then liaise with him to attend at his residence for the purpose of recommencing electronic monitoring within a further two working days.
[19]Section 347(2). Those reporting requirements are specified in s 69E(1)(b) of the Sentencing Act.
Solicitors:
Crown Law Office, Wellington for Respondent
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