R v Simon CA230/04 - [2004] NZCA 345

IN THE COURT OF APPEAL OF NEW ZEALAND

CA230/04

THE QUEEN

v

HAYDEN PHILLIP SIMON

Hearing: 25 August 2004 Coram: Anderson P
Hammond J William Young J

Appearances: J C Gwilliam and I R Hard for Appellant B M Stanaway for Crown

Judgment: 14 October 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Table of Contents

Paragraph Number

Introduction  [1]
The facts  [5]
The conviction appeal
The grounds advanced  [11]

Were the bank lodgement forms and internet banking forms valuable securities for the purposes of s 246 of the Crimes Act?

[13]

Was the conviction on count 7 unreasonable? [23]
Was the conviction on count 14 unreasonable? [28]

Were the convictions on counts 15-24 Unreasonable due to lack of proof of identity? Were the convictions on counts 20-24 Unreasonable due to lack of proof of alteration of Documents?

[33]

[35]

Was similar fact evidence wrongly admitted? [39]

Did the Judge adequately direct the jury as to the defences advanced other than absence of fraud?

[42]

R V HAYDEN SIMON CA CA230/04 [14 October 2004]

Appeal against sentence [54]

Result [62]

Introduction

[1] On 2 March this year, the appellant was convicted on 23 fraud charges by a jury in the District Court at Palmerston North. He was subsequently sentenced on 21 May to a total of 15 months imprisonment. As well, he was sentenced to a further one month imprisonment, on a cumulative basis, upon the remission of fines. The total term of imprisonment imposed was 16 months imprisonment. An interim order for reparation in the sum of $6,000 was also made.

[2] The Judge granted the appellant leave to apply for home detention and deferred the commencement date of the prison sentence to enable that application to be made and considered before the appellant was required to start serving his sentence. That deferral period, however, expired on 21 July without his application for home detention having been determined and, as a result, the appellant was taken into custody.

[3] We do not know the outcome of that application for home detention which, in any event, is irrelevant to our function.

[4] The appellant has now appealed to this Court against conviction and sentence.

The facts

[5] The charges against the appellant related to him buying and selling computer parts on the internet. On the Crown case the appellant defrauded both his suppliers and his customers. The offending began in April 2001 and ended in May 2002 when the police seized his computer.

[6] The frauds in relation to customers were said to involve false representations as to his intention to supply goods. In respect of these allegations the Crown laid

13 counts (counts 1-13) under s 246(1) of the Crimes Act 1961 alleging that the appellant had, by false pretences, induced the customers to execute valuable securities. The valuable securities in question were the documents by which the victim ensured that the accounts nominated by the appellant were credited with the funds required by the appellant. In…

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.

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Details

Case: [2004] NZCA 345
Decision Date: 14 October 2004

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against conviction and sentence by Hayden Phillip Simon. The appellant was convicted on 23 fraud charges by a jury in the District Court at Palmerston North and was sentenced to a total of 16 months imprisonment. The appellant argued that certain counts were unreasonable, that there was insufficient evidence to prove identity and alteration of documents, and that the trial judge did not adequately direct the jury regarding certain defences. The Court dismissed the appeal against conviction, finding that the evidence was sufficient to support the convictions and that the trial judge's summing up was adequate. The Court allowed the appeal against sentence, directing that all sentences imposed on the fraud counts be served concurrently, resulting in a total sentence of 10 months imprisonment.

The appellant, Hayden Phillip Simon, was found guilty of 23 fraud charges related to his online business of buying and selling computer parts. The appellant defrauded both his suppliers and customers through false representations and dishonest assertions. Simon appealed against his conviction and sentence, arguing that certain counts were unreasonable, there was insufficient evidence to prove identity and alteration of documents, and the trial judge did not adequately direct the jury regarding certain defences.

The Court of Appeal dismissed the appeal against conviction, finding that the evidence was sufficient to support the convictions. The Court held that bank lodgement forms and internet banking forms were valuable securities for the purposes of s 246 of the Crimes Act. The Court also found that the trial judge's summing up was adequate in addressing the issue of identity and that the failure to specifically address the issue of document alteration did not result in a miscarriage of justice.

The Court allowed the appeal against sentence, directing that all sentences imposed on the fraud counts be served concurrently. The practical effect of this is that the appellant will be required to serve nine months imprisonment in relation to the fraud counts together with another month in relation to the fines, making a total sentence of 10 months imprisonment. The Court considered the appellant's youth, potential to lead a successful and worthwhile life, and limited effect of his offending in reaching its decision.

Orders