Lester v R
[2012] NZCA 47
•29 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA629/2011 [2012] NZCA 47 |
| BETWEEN JAMES OWEN LESTER |
| AND THE QUEEN |
| Hearing: 14 February 2012 |
| Court: Arnold, Potter and Simon France JJ |
| Counsel: J H Wiles for Appellant |
| Judgment: 29 February 2012 at 12 noon |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Arnold J)
Introduction
The appellant, Mr Lester, entered pleas of guilty on the morning of trial to two counts of obtaining by deception involving, in total, $170,000. Judge Wiltens sentenced him to a term of imprisonment of two years six months.[1] Mr Lester now appeals against that sentence.
Factual background
[1] R v Lester DC Manukau CRI 2010-057-272, 7 September 2011.
The appellant developed a scheme for the use of geothermal energy to generate power on Great Barrier Island. He sought funds for his scheme from the (then) 78 year old victim, Mr Brien, a farmer. Mr Brien advanced two sums to the appellant:
(a) $120,000 in January 2009. The appellant said that this was needed to pay the deposit on a block of land which he intended to purchase for the project. The appellant said that the land would be quickly on-sold to the Department of Conservation. When this occurred, Mr Brien would be repaid. Apparently the appellant said that he would purchase 135 hectares of land for $7 million and on-sell much of it to the Department of Conservation for $12 million. The Department, he said, would wish to buy the excess land because there were kauri trees growing on it. The profit on the sale would fund the development.
(b) $50,000 in March 2009. The appellant said he needed this because other parties were showing interest in developing their own geothermal power generation scheme and he needed the funds to ensure that he got in first.
In fact, the owners of the block of land had not agreed to sell it, nor had the Department of Conservation agreed to buy it. The money provided by Mr Brien went to meet the appellant’s personal obligations and outgoings. Mr Brien issued civil proceedings against the appellant in an effort to obtain the return of his money. Although he was successful in having judgment entered against the appellant, nothing has been recovered. Properties in which the appellant has interests are held in trusts and are, in any event, heavily mortgaged. Mr Brien has little prospect of recovering any of his money.
Sentencing
The Crown suggested a starting point between two years six months and three years imprisonment. The Judge adopted a starting point of three years given the age of the victim, the very limited prospect of repayment, and the extent of the premeditation and planning involved in the offending.
From that starting point, Judge Wiltens gave a discount of six months to reflect the appellant’s lack of prior convictions and late guilty plea, which produced an end sentence of two years six months imprisonment. The Judge noted that the appellant had substantial debts and was unlikely to be in a position to pay reparation.
Basis of appeal
For the appellant, Mr Wiles submitted that the starting point adopted by the Judge was too high and that home detention was a viable option for this type of offending. He relied in particular on Ransom v R.[2] In that case, Ms Ransom entered guilty pleas to 11 charges of benefit fraud extending over a period of almost ten years and involving a total of $127,000. The District Court Judge adopted a starting point of two years six months imprisonment and reduced that by twelve months to reflect Ms Ransom’s guilty plea, her psychological difficulties, the need for her to care for her six year old child and the unlikelihood that she would reoffend. The Judge refused to impose home detention, essentially because he considered that the offending was too serious. On appeal this Court considered that home detention was the appropriate sentence in view of Ms Ransom’s personal circumstances, in particular her husband’s ability to resume employment once Ms Ransom was able to resume responsibility for the care of her daughter, who had considerable behavioural difficulties.
[2] Ransom v R [2010] NZCA 390.
Mr Wiles placed particular emphasis on the appellant’s personal circumstances. He noted that the appellant and his wife have four children, two of whom still live at home. The youngest, a 13 year old, suffers from an auto-immune disease and requires a weekly chemotherapy injection. At times he is too ill to attend school. Consequently, the appellant’s wife, who is a consultant nurse at Middlemore Hospital, must take time off work to look after him. This impacts on her income and has left her struggling to pay two mortgages. Mr Wiles says that the appellant’s wife would be greatly assisted if the appellant were to be granted home detention as he could then look after their son.
For the Crown, Ms Fenton submitted, with particular reference to various authorities,[3] that the sentence was within the range available to the Judge albeit towards the upper end of it. She emphasised the need to meet the purposes of denunciation and deterrence and noted the appellant’s lack of acceptance of responsibility despite his guilty plea.
Our evaluation
[3] R v Varjan CA97/03, 26 June 2003; R v Davis [2009] NZCA 26; Nisbet v R [2011] NZCA 285.
Although the appellant entered a plea of guilty on the morning of trial, it is clear from the pre-sentence report and from Mr Wiles’ submissions that the appellant does not accept full responsibility for his actions. According to the pre-sentence report, he continues to assert that the project was viable and to blame others for its failure. He described himself as “over enthusiastic” about the proposal and said he did not fully appreciate what the Department of Conservation would require.
We do not consider that the appellant is in the same position as the offender in Ransom. Here the appellant took advantage of a relationship which he developed with a man who was in his late 70s and contemplating retirement. He took a substantial sum of money from him, ostensibly for a project which the sentencing Judge described as “a flight of fantasy”[4] but in fact applied it to his own use. Although the appellant says he will repay it, that also seems something of a fantasy. The victim, Mr Brien, says that he will have to postpone his retirement in order to recoup the funds which the appellant has taken.
[4] At [13].
We accept that the appellant’s incarceration has placed heavy pressures on his wife and family. That is regrettable but it is a common consequence of criminal offending and results from the appellant’s deliberate actions.
Having considered the authorities relied on by the Crown, we accept that the starting point of three years was available to the Judge, although it was at the top end of the range. The six months deduction for good character and the late guilty plea amounts to a deduction of around 17 per cent. While this deduction is a modest one, and another judge may have allowed a little more, we consider it was within the range available to the Judge, given the appellant’s lack of genuine remorse.
Accordingly, we consider that the end sentence imposed was within the available range. In those circumstances, the appeal must be dismissed. As a consequence, the question of home detention does not arise.
Decision
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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