L v Police HC Rotorua CRI-2010-463-46

[2010] NZHC 2229

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-46

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2010

Appearances: Appellant in person

Mr L Maynard for Respondent

Judgment:      13 December 2010 at 2.30 pm

JUDGMENT OF LANG J

[on appeals against conviction and sentence]

This judgment was delivered by me on 13 December 2010 at 2.30 pm, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Rotorua
Copy to:

Mr S T L  , c/- Betterment Holdings, P O Box 507, Rotorua 3040

L V NEW ZEALAND POLICE HC ROT CRI-2010-463-46 13 December 2010

[1]      Following  a  defended  hearing  in  the  District  Court,  His  Honour  Judge McGuire convicted Mr L   on a charge brought under s 15 of the Summary Offences Act 1981.  The charge read as follows:

That on the 13th day of September 2009 at Rotorua, [Mr L  ] collected by means  of  a  false  pretence,  namely portraying himself as  a collector  for Victim Relief,… the sum of $18.95, …

[2]      Judge McGuire sentenced Mr L   to 40 hours community work.  He now appeals to this Court against both conviction and sentence.

The evidence

[3]      The only evidence for the prosecution was that given by Constable Hawera. He said that he observed Mr L   being invited into a residential address at 33

Wylie Street, Rotorua on 13 September 2009.   When Mr L   came out of the address, the constable approached him and asked him what he was doing. Mr L   told the constable that he had been collecting donations, although he added that the owners of the address that he had just visited had declined to give him one.

[4]      Mr L   gave the constable a letter that explained what he was doing.  The letter was in the following terms:

The Sonny L   Charitable Foundation:  EST AUG 2003

2nd  Edition       Ph (07)

Sonny Crusmon L 

c/- Betterment Holdings

P O Box 507, Rotorua 3040 d/=07 July 2010

Ref: Help Support Victim Relief Against Unreasonable Poverty

With Just Cause & Firm Principal Benefactors Conserve Integrity: Help support victim relief against unreasonable poverty also: Its the fundamental balance between blessing or mistake.

Charitable Foundation Statement

The-Sonny L   Charitable Foundation – for victim relief from the suffering of  poverty,  include  the  nonprofit  organization  statement  ‘support  victim relief & make donation of charity’ due to Govt oversight of the relevant statute which stop entitlements to benefit.

Relevant Law

Legislative application enactment at 16:50 hours on 13 June 2008 approximately, otherwise being the execution of irrelevant legislation (oversight of relevant statute & New Zealand Bill of Rights Act) by the Ministry of Social Development Branch of – Dept of Work & Income – in which principle within Govt reiterate – legislative application enactment – by Accident Rehabilitation & Compensation Insurance Corporation of New Zealand (ACC) which establish oversight of statutory Declaration of Client when entitlement to earnings related compensation stopped late August 2003 (earnings related compensation began 06 June 88) of which state of affairs negative or perjure ex Client wellbeing.

Savings (Statutory, Diplomatic)

Donations of money or items (Food, Clothing, Shelter, stationary) shall be deemed unconditional gift accepted by Charitable Foundation Trustee Director & volunteers (if any) in attendance.

This nonprofit organization shall remain unregistered due to ongoing emergency condition of poverty.

[5]      Mr L   also gave the constable a card that he apparently used as an aide memoire if anybody should ask him to go into further detail about what he was collecting donations for.  The card contained the following statement:

“Introduction support Victim Relief and make a donation of charity.   The provision of your gift of money is for Victim Relief due to charity which in New Zealand relate not to agricultural hardship, but relate to Government overlooking of relevant statute which stop entitlements to benefit.  Care to donate, your charity is appreciated.”

The Judge’s decision

[6]      The Judge noted that this was not the first occasion on which Mr L   had been before the Court for this type of offending.  He had engaged in similar conduct in 2009, and had been found guilty in respect of it.  An appeal to this Court against that conviction was ultimately unsuccessful.

[7]      Judge McGuire noted that the prosecution was required to prove that Mr L   had the requisite intent in order to establish the charge.  It had to show that he knew that what he was telling persons from whom he was soliciting donations was false and dishonest.  Keane J had confirmed that requirement when he dismissed Mr

L  ’s appeal against his conviction in 2009:  L   v Police HC Rotorua CRI 2009-

463-26, 28 May 2009 at [24].

[8]      The  Judge  was  satisfied  beyond  reasonable  doubt  that  Mr  L   had  the requisite intent to be guilty of a charge under s 15.  He expressed his conclusion on this point as follows:

7.Now Mr L   plainly has given some thought to his presentation and he doubtless believes that he has not fallen foul of the provisions of s 15  of  the  Summary  Offences  Act.    However,  the  approach  to householders commences with something like “support victim relief with a donation of charity”.   As I have already mentioned, this is backed up by a card on which that is written, together with other things I have mentioned and there is the letter that was given to the police.  Neither of these documents make it clear that Mr L   is the recipient.  Indeed, both documents are in the third person and the clear and necessary inference to be taken is that Victim Relief relates to some third party, not the person asking for the money.

8.In none of the writings does Mr L   use the first person “I”.   The closest he comes to stating the true positions is that in one of his documents, he describes himself as “authorised donee”.  In my view, that  does  not  cut it.   The  clear and necessary implication for  his approaches is that he is collecting money not for himself, but for a third party and I find that that is the clear message that he wishes to convey to the house owner and it is only then if the house owner drills further down that he may in due course come to realise that Mr L   is collecting for himself.   He is not assisted in that regard, the householder, by Mr L  ’s presentation.

9.I conclude that in spite of cosmetic amendments to what he was doing last year, he still falls foul of s 15 because what he is doing is in fact a dishonest pretence that he is collecting for a third party, when he is not and, accordingly, I find the charge proved.

Decision

[9]      There was no dispute that Mr L   had obtained the sum of money referred to in the charge through soliciting donations from members of the public.  There was no dispute, either, that he had obtained that sum by representing that the donations were being collected on behalf of a charitable organisation.  The letter and the card both suggested that that charitable organisation existed to alleviate “victim relief from the suffering of poverty”.  They also gave the impression that the victims in question were persons other than Mr L  .

[10]     That was not the true state of affairs, because Mr L   candidly accepts that he was collecting the donations to meet his own living costs. The letter and the card contained no hint, however, that Mr L   would retain the donations for his own use and benefit. In effect, Mr L   was operating as a beggar without disclosing that fact to those whom he approached

[11]     This leads me to agree with the Judge’s conclusion.  I agree that it may not be against the law for a person to collect donations for himself or herself.   It was essential, however, for Mr L   to make that fact known to those with whom he dealt.   Those persons were entitled to know the basis on which he was seeking donations.  Like the Judge, I conclude that he deliberately pretended to be collecting donations for parties other than himself.   That pretence was demonstrably false, because Mr L   was collecting the money to meet his own living costs.  In making the representation Mr L   must have known that he was misleading the persons with whom he was dealing.  He therefore acted dishonestly in obtaining donations from them.

[12]     It follows that the prosecution established the essential ingredients to prove the charge.  The appeal against conviction is accordingly dismissed.

[13]     Given the fact that this is Mr L  ’s second conviction for similar offending, a sentence of 40 hours community work cannot be said to be manifestly excessive. Indeed, Mr L   did not attempt to persuade me that that was the case.

[14]     The appeal against sentence is accordingly dismissed as well.

L   J