Police v Neutze - [2018] NZHC 1510

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-093

[2018] NZHC 1510

BETWEEN
NEW ZEALAND POLICE

Applicant

AND

NICHOLAS JAMES CLAPSHAW NEUTZE

Respondent

Hearing: 18 June 2018

Counsel:

N J Small for Applicant

P F Wicks QC and C E Joy for Respondent

Judgment:

22 June 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 June 2018 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Applicant Brookfields (Auckland) for Respondent

POLICE v NEUTZE [2018] NZHC 1510 [22 June 2018]

Introduction

[1] Mr Neutze pleaded guilty to one charge of accessing a computer system for a dishonest purpose.1 Judge N Mathers discharged him without conviction.2 The Police wish to appeal that outcome.

Procedure

[2] The ability of a prosecutor to appeal a discharge without conviction is governed by s 296 of the Criminal Procedure Act 2011.3 The appeal is limited to a question of law and the leave of the Court is required. Leave will generally be granted if, on the face of it, there is an arguable question of law identified.

[3] Mr Wicks QC, for Mr Neutze, submits the Court should not grant leave to appeal. He submits there is no arguable question of law identified and, even if there is, a discharge without conviction was an outcome available to Judge Mathers in all the circumstances.

Background

[4] Mr Neutze is 27 years old. He has a law degree and has completed the professional prerequisites for applying for admittance to the bar as a barrister and solicitor. That is not, however, his present intention.

[5] From 9 June 2014 to 27 February 2017, Mr Neutze was employed at ANZ Bank as a Relationship Services Manager. As such, he had authority to access and operate various banking systems. He was prohibited from doing so in relation to his own account. However, from 9 December 2016 to 17 February 2017, he dishonestly used his authority to access his personal account to increase his overdraft limit. He did this on 10 separate occasions, incrementally increasing his overdraft limit from
$2,000 to $100,000. He drew money on the overdraft, and as at 10 March 2017 owed
$89,190.75.

1      Crimes Act 1961, s 249. The maximum penalty is seven years’ imprisonment.
2      Police v Neutze [2018] NZDC 3951.
3      R v Smyth [2017] NZCA 530 at [7].

Question of law

[6] Ms Small for the Police misapprehended the statutory basis for bringing the appeal. Ms Small thought leave was needed but, if granted, the appeal would proceed as a general appeal under s 246 of the Criminal Procedure Act 2011.

[7] Having been informed by Mr Wicks of the actual position, Ms Small told me at the hearing that the question of law for which leave to appeal is sought is: did the Judge err in her assessment of the gravity of the offending?

[8] Ms Small submits the Judge overlooked…

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 Police v Neutze

Details

AGLC: Police v Neutze [2018] NZHC 1510
Case: [2018] NZHC 1510
Decision Date: 22 June 2018

CaseChat Overview and Summary

The case of Police v Neutze before the High Court of New Zealand involves the New Zealand Police appealing against the discharge without conviction of Nicholas James Clapshaw Neutze. Neutze had pleaded guilty to accessing a computer system for a dishonest purpose. The primary legal issue the court had to decide was whether the lower court erred in its assessment of the gravity of Neutze's offending. The court needed to determine if the Judge overlooked any relevant matters that should have been accounted for in assessing the gravity of the offending.

In the reasoning of the case, the court examined whether the Judge erred by failing to assess the impact of the offending on ANZ Bank beyond the financial aspect. The court found that the Judge had not overlooked any relevant matters in this regard. Further, the court considered whether the Judge erred by not giving sufficient weight to the details of a charge of driving with excess breath alcohol. The court concluded that the Judge did not err in this respect either as the drink driving charges were not relevant to the gravity of the offending against ANZ Bank.

Ultimately, the court found no error of law by the Judge on the ground of appeal identified by the appellant. Therefore, the appeal was dismissed.

Orders