Jardine v R - [2016] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND

CA739/2015
[2016] NZCA 371

BETWEEN	GAVIN GRAHAM JARDINE Appellant
AND	THE QUEEN Respondent

Hearing:	1 June 2016
Court:	Ellen France P, Clifford and Katz JJ
Counsel:	Appellant in Person J E L Carruthers for Respondent
Judgment:	4 August 2016 at 3 pm

JUDGMENT OF THE COURT

AAn extension of time to file the notice of appeal is granted.
BThe appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, Gavin Graham Jardine, was found guilty after a trial before Judge Blackie in the Auckland District Court on four charges of accessing, directly or indirectly, a computer system and thereby dishonestly and without claim of right obtaining a pecuniary advantage.[1] The total sum Mr Jardine dishonestly obtained was, the Judge found, $383,385.02. The Judge subsequently sentenced Mr Jardine to three years and eight months’ imprisonment.[2]
[1]R v Jardine DC Auckland CRI-2012-004-4089, 7 March 2014.
[2]R v Jardine DC Auckland CRI-2012-004-17992, 16 April 2014.
Mr Jardine has served his sentence. At the end of that sentence he was deported from New Zealand to England where he now lives.
Mr Jardine appeals his conviction and sentence. Mr Jardine says that the way the police prosecuted the charges breached a range of his common law and human rights. His trial was, therefore, unfair. His trial counsel, Mr Bioletti, failed to properly represent him. As a result the defence to the charges, a claim of right, was wrongly rejected by the Judge. He says his sentence was manifestly excessive and also breached his human rights.
Mr Jardine requires an extension of time because his appeal was not filed until December 2015, after he had been released from prison. In the circumstances, the Crown did not, however, oppose an extension and we grant an extension of time to file the notice of appeal accordingly.

Facts

Mr Jardine came from South Africa to New Zealand in May 2008 on a visitor’s visa. His intention was to investigate work opportunities, and the possibility of migration to this country. He had a return ticket for 3 June 2008. Things moved faster than anticipated. By 20 May 2008 Mr Jardine had received an offer of employment at Maclean Computing Limited as an accountant. That offer was contingent on Mr Jardine commencing work immediately, and not returning to South Africa. Mr Jardine accepted that offer. By 5 June 2008 Mr Jardine had obtained a work permit and his employment agreement with Maclean Computing came into force.
Before leaving South Africa, Mr Jardine had contracted to sell his and his wife’s family home. That deal got into difficulties. Mr Jardine decided to return to South Africa in September 2008 to try to sort the matter out. Mr Jardine says that, on the evening prior to his departure, the managing director of Maclean Computing (Mr Allan Maclean) approached him, told him he was very satisfied with his level of work and offered him the…

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 Jardine v R

Details

AGLC: Jardine v R [2016] NZCA 371
Case: [2016] NZCA 371
Decision Date: 4 August 2016 at 3 pm

CaseChat Overview and Summary

Gavin Graham Jardine appeals against his conviction and sentence for accessing, directly or indirectly, a computer system and thereby dishonestly and without claim of right obtaining a pecuniary advantage. The Court of Appeal of New Zealand dismissed the appeal against conviction and sentence. The legal issues the Court was required to decide were whether the prosecution of the charges breached a range of Jardine's common law and human rights, whether his trial counsel failed to properly represent him, and whether his sentence was manifestly excessive and also breached his human rights. The Court found that the prosecution of the charges did not breach any of Jardine's rights, and that his trial counsel did not fail to properly represent him. The Court also found that the sentence was not manifestly excessive or in breach of Jardine's human rights. The Court granted an extension of time for Jardine to file his notice of appeal and dismissed the appeal against conviction and sentence.

Orders