Hunter v The Queen

[2020] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-70

[2020] NZHC 3209

BRIAN DAMIAN HUNTER

v

THE QUEEN

Hearing:	1 December 2020
Appearances:	C J Tennet for Appellant G J Burston for Crown
Judgment:	7 December 2020

JUDGMENT OF CLARK J

[1]    Following a sentence indication Mr Hunter pleaded guilty to one charge of causing loss by deception1 and one charge of theft.2

[2]    On 13 August 2020 Judge Hastings sentenced Mr Hunter to six months’ community detention, 100 hours community work and made an order for reparation in the amount of $3,000 in relation to the theft charge.3

[3]Mr Hunter appeals against his conviction and sentence.

1      Crimes Act 1961, s 240(1)(d) and s 241(a); maximum penalty seven years imprisonment.

2      Sections 219 and 223(b); maximum penalty seven years imprisonment.

3      R v Hunter [2020] NZDC 16103 [Sentencing Notes].

HUNTER v R [2020] NZHC 3209 [7 December 2020]

Background to the offending

[4]Judge Hastings summarised the offending in his sentencing notes.4

[5]    On 20 March 2007, Mr Hunter contacted ApplianSys, a British based firm specialising in managing network services. Mr Hunter portrayed himself as a consultant with the Ministry of Education and having responsibility for improving network connections within New Zealand schools. He offered to act as ApplianSys’ New Zealand agent.

[6]    ApplianSys was convinced Mr Hunter was a genuine distributor and installer of IT equipment and networks in New Zealand schools with contacts in the Ministry of Education. As a result, ApplianSys sent Mr Hunter eight cache boxes and two servers to be trialled in schools. The equipment was valued at $30,000. Mr Hunter also advised ApplianSys that he expected to obtain a multi-million dollar contract from the Ministry of Education to install cache boxes in schools. ApplianSys then increased its support to Mr Hunter, dedicating a team to assist with his requests.

[7]    In January 2011, ApplianSys advised Mr Hunter it had scheduled a meeting with a Ministry of Education representative. Mr Hunter said he knew this person and advised ApplianSys not to meet with him.

[8]    In September 2012, ApplianSys received an anonymous email to the effect Mr Hunter was “a convicted fraudster.” When ApplainSys emailed Mr Hunter for an explanation he went quiet.

[9]    In November 2012, Mr Hunter sold one of the cache boxes for $3,000. When a search warrant was executed at Mr Hunter’s residence five cache boxes were located. The remaining cache boxes and the two servers were not recovered.

[10]   On 27 August 2018 Judge Hobbs dealt with an application to admit propensity evidence. Of Mr Hunter’s approximately 167 convictions for dishonesty offences the

4      Sentencing notes, above n 3, at [3]–[4].

Crown sought to admit 142. Judge Hobbs granted the application in relation to seven of the convictions.5

[11]   On 4 September 2019 Judge Tuohy dismissed Mr Hunter’s application for a stay.6

[12]   Mr Hunter sought  a  sentence  indication  which  Judge Hastings  gave  on  24 September 20197 following which Mr Hunter entered guilty pleas.

Conviction appeal

[13]   Mr Hunter’s grounds of appeal are that the respective District Court Judges erred in:

(a)not staying the proceedings;

(b)granting the propensity application; and

(c)not granting a discharge without conviction.

[14]   In written submissions Mr Tennet appropriately referred to R v Le Page as the leading authority on appeals against conviction following a guilty plea.8

[15]   The essential proposition to be drawn from R v Le Page is that only in exceptional circumstances will an appeal against conviction be entertained following entry of a guilty plea.9 Mr Tennet’s written submissions did not address that particular principle. At the beginning of the hearing I therefore engaged Mr Tennet on the point.

[16]   Mr Tennet conceded the appellant’s inability to point to any exceptional circumstance indicating a miscarriage of justice perhaps “snookers” him.

5      R v Hunter [2018] NZDC 23409 at [34].

6      R v Hunter [2019] NZDC 17290.

7      R v Hunter DC Wellington CRI-2018-085-342, 24 September 2019.

8      R v Le Page [2005] 2 NZLR 845 (CA).

9 At [16].

[17]   As the appellant has not shown a miscarriage of justice would result if the convictions were not overturned, the appellant’s appeal against conviction must be dismissed.

Sentence appeal

District Court sentence

[18]   Judge Hastings identified the following features as aggravating Mr Hunter’s offending:

(a)Loss to the value of some $37,000 had been caused to the victim. Mitigating against the loss to some extent was that the victim did not seek reparation and had apparently “chalked this one up to experience”.10

(b)The offending continued over a significant period of time namely, from March 2007 through to November 2012.

(c)The offending involved significant premeditation.

[19]Taking as comparable cases Haereroa v Police,11 Anderton v Police12 and

Gabey v Police13 the Judge fixed a starting point of two years’ imprisonment.

[20]   An uplift of six months reflected Mr Hunter’s history of dishonesty offending but also the fact there had been no convictions since 2012.14 A psychiatric report from Dr Roy spoke of Mr Hunter’s post-traumatic stress disorder, his previous alcohol troubles and recent employment that had been positive for Mr Hunter’s rehabilitation. These features  attracted  a discount of six months, bringing the sentence back to    24 months.15

10     Sentencing Notes, above n 3, at [16].

11     Haereroa v Police [2019] NZHC 318.

12     Anderton v Police [2018] NZHC 437.

13     Gobey v Police [2018] NZHC 1555.

14     At [21](a).

15     At [21](b).

[21]   The Judge gave a further discount of six months for the time Mr Hunter spent on bail and the delays prior to sentencing. A further five-month discount was applied for the appellant’s willingness to engage in the restorative justice process, the reparation made on the theft charge, and Mr Hunter’s voluntary community work (150 hours). Finally, a 10 per cent discount was given for the guilty plea entered on the first day of trial.

[22]   The nominal sentence was 13 months’ imprisonment, which the Judge translated to approximately six months’ home detention or five months’ home detention with some community work. Mr Tennet had submitted at sentencing that a sentence of community detention combined with community work would achieve the purposes of a sentence which his Honour had earlier identified as denunciation, deterrence, accountability for the loss caused and Mr Hunter’s rehabilitation.16

[23]   Taking the foregoing factors into consideration and in light of the sentence indication given in 2019, Judge Hastings sentenced Mr Hunter to six months’ community detention with a daily curfew, 100 hours’ community work and made a reparation order in the sum of $3,000.

Governing principles

[24]   I must allow the appeal if there is an error in the sentence imposed and if I am satisfied a different sentence should be imposed.17 A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion.18 On appeal the focus is on the end sentence and whether it was manifestly excessive, rather than on the route by which the sentence was reached.19

[25]   In other words, was there in the sentence an error having such significance that a different sentence should be imposed?20

16 At [14].

17     Criminal Procedure Act 2011, s 250.

18     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

19     Ripia v R [2011] NZCA 101 at [15].

20     Tutakangahau v R, above n 18, at [32]-[35].

Appellant’s submissions

[26]   The appellant submits the sentence was manifestly excessive; the starting point was too high, and the Judge failed to give further credits to the appellant. Mr Tennet identified issues with the cases regarded by the Judge as comparable. For example, in Haereroa v Police the appellant was involved in a raft of offending that attracted a sentence of four and a half years’ imprisonment.

[27]   Mr Tennet further submitted the six-month uplift was wrong; the discount for restorative justice was inadequate  and the 150  hours of community work which   Mr Hunter had volunteered was given insufficient credit. Mr Tennet submitted the Judge was wrong to rely on an alcohol and drug report by Mary Allan and he did not place enough emphasis on the psychiatric report from Dr Roy. Mr Tennet submitted a sentence of two months’ community detention should have been imposed.

Analysis

[28]   The starting point was clearly appropriate as was the uplift for Mr Hunter’s criminal history. I agree with the respondent’s characterisation of the discounts which approached 50 per cent as being generous for a plea entered on the first day of trial.

[29]   Rather than being inadequate I consider the discount for personal mitigating factors was generous. The rehabilitative steps taken by Mr Hunter were reflected in a six-month discount and his voluntary community work resulted in a further three month discount even in the absence of any independent verification of Mr Hunter’s assertion of his voluntary work.  An aspect of the three-months discount was that   Mr Hunter engaged in (but did not complete) the restorative justice process.

[30]   I put to one side the point raised about the Judge’s  erroneous reliance on    Ms Allan’s report as there is no indication the Judge even considered, much less relied on, this report. There is no mention of it in his Sentencing Notes.

[31]   In short, generous discounts were given to Mr Hunter for matters raised at sentencing and the end sentence was less restrictive than the seven months’ home detention with community work and reparation indicated on 24 September 2019,

following which Mr Hunter pleaded guilty. The appellant has not established his sentence was manifestly excessive.

[32]   There is a final point however. Mr Hunter’s sentence of community detention was not suspended when he filed his appeal. Although the Department of Corrections was notified of the appeal on 21 August 2020 the Department continued to monitor and manage Mr Hunter’s sentence when in fact he should have been disconnected from his monitoring equipment. Consequently, the period between 21 August 2020 and 29 September 2020 must be deducted from the sentence of community detention.

Disposition

[33]The appeal against conviction is dismissed.

[34]   The period between 21 August 2020 and 29 September 2020 must be deducted from the sentence of community detention.

[35]The appeal against sentence is otherwise dismissed.

Karen Clark J

Solicitors:

CJ Tennet, Justice Chambers, Petone for Appellant Crown Solicitor, Wellington