Hunter v The Queen - [2021] NZCA 455

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA709/2020
[2021] NZCA 455

BETWEEN	BRIAN DAMIAN HUNTER Applicant
AND	THE QUEEN Respondent

Court:	French, Mander and Palmer JJ
Counsel:	C J Tennet for Applicant B F Fenton for Respondent
Judgment: (On the papers)	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…

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 The Queen

Details

AGLC: Hunter v The Queen [2021] NZCA 455
Case: [2021] NZCA 455
Decision Date: 9 September 2021 at 10 am

CaseChat Overview and Summary

The case of Hunter v The Queen involves the applicant, Brian Damian Hunter, who seeks leave to appeal to the Court of Appeal of New Zealand against the sentence imposed on him by the District Court at Wellington. Hunter pleaded guilty to charges of causing loss by deception and theft, and was sentenced to six months’ community detention, 100 hours of community work, and reparation in the amount of $3,000. Hunter's appeals against both conviction and sentence were dismissed by Clark J in the High Court. Hunter now seeks leave to appeal to the Court of Appeal on the basis that the sentence was manifestly excessive and inappropriate, and that he should have been discharged without conviction.

The legal issues before the Court of Appeal are whether Hunter's application for leave to bring a second appeal satisfies the high threshold for leave, and whether a miscarriage of justice has arisen or may arise from the District Court's refusal to discharge Hunter without conviction. The Court of Appeal found that Hunter's application for leave did not satisfy the high threshold for leave, and that there was no basis upon which to suggest that Judge Hastings took any irrelevant matters into account in dismissing Hunter's application for discharge. The Court of Appeal also found that 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, and that there was no discernible basis upon which it can be realistically argued that Hunter has suffered a miscarriage of justice as a result of the sentence imposed.

The Court of Appeal declined Hunter's application for leave to appeal against his sentence. Hunter's sentence of community detention and community work is currently suspended, and will resume from the date of the Court of Appeal's judgment. 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. However, Hunter is presently trespassed from Community Corrections sites, and alternative directions are required for him to commence his sentence.

Orders