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…

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 [2020] NZHC 3209
Case: [2020] NZHC 3209
Decision Date: 7 December 2020

CaseChat Overview and Summary

In Hunter v The Queen, the appellant, Mr Brian Damian Hunter, appealed both his conviction and sentence. The conviction stemmed from charges of causing loss by deception and theft, for which Mr Hunter pleaded guilty. The sentence imposed was six months’ community detention, 100 hours of community work, and a reparation order of $3,000. The primary legal issues before the court were whether the District Court erred in not staying the proceedings, in granting the propensity application, and in not granting a discharge without conviction. Additionally, the court considered whether the sentence imposed was manifestly excessive.

The court first addressed the appeal against conviction. It noted that appeals against conviction following a guilty plea are only entertained in exceptional circumstances, a principle derived from the case of R v Le Page. The appellant argued that the District Court erred in not staying the proceedings, in granting the propensity application, and in not granting a discharge without conviction. However, the court found that the appellant had not demonstrated any exceptional circumstances that would warrant allowing the appeal against conviction. Consequently, the appeal against conviction was dismissed.

Turning to the sentence appeal, the court reviewed whether the District Court erred in the sentence imposed. The court found that the starting point and the uplift for Mr Hunter’s criminal history were appropriate. It also noted that the discounts applied, which cumulatively approached 50%, were generous. The court concluded that the sentence was not manifestly excessive and, therefore, dismissed the appeal against the sentence. However, the court did order that the period between 21 August 2020 and 29 September 2020 must be deducted from the sentence of community detention due to an administrative error by the Department of Corrections.

In summary, the appeal against conviction was dismissed, and the sentence appeal was dismissed except for the adjustment to the community detention period.

Orders