Lester v R - [2012] NZCA 47

IN THE COURT OF APPEAL OF NEW ZEALAND

CA629/2011
[2012] NZCA 47

BETWEEN JAMES OWEN LESTER
Appellant

AND THE QUEEN
Respondent

Hearing: 14 February 2012

Court: Arnold, Potter and Simon France JJ

Counsel: J H Wiles for Appellant
B Fenton for Respondent

Judgment: 29 February 2012 at 12 noon

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

_______________________________________________________________

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…

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 Lester v R

Details

AGLC: Lester v R [2012] NZCA 47
Case: [2012] NZCA 47
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant James Owen Lester appealed against his sentence imposed by Judge Wiltens, who had sentenced him to two years and six months of imprisonment for two counts of obtaining by deception. The total amount of money involved in the deception was $170,000. The appeal was heard by Arnold, Potter, and Simon France JJ on 14 February 2012, and the judgment was delivered on 29 February 2012. The appellant was represented by J H Wiles, while B Fenton represented the respondent, The Queen.

The primary legal issue before the court was whether the starting point of three years adopted by Judge Wiltens was too high and whether home detention was a viable sentencing option for this type of offending. The appellant argued that the starting point was too high and that home detention was a more appropriate sentence considering his personal circumstances. The Crown argued that the sentence was within the range available to the Judge, and the purposes of denunciation and deterrence should be taken into account.

The court found that the appellant's lack of genuine remorse and his continued assertion that the project was viable, despite the sentencing Judge describing it as "a flight of fantasy," meant that the appellant was not in the same position as the offender in the Ransom case, which the appellant's counsel relied on. The court accepted 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 amounted to a deduction of around 17 per cent, which was within the range available to the Judge, given the appellant's lack of genuine remorse. Therefore, the court concluded that the end sentence imposed was within the available range, and the appeal was dismissed. As a consequence, the question of home detention did not arise.

Orders