R v Simpson - [2008] NZCA 467

IN THE COURT OF APPEAL OF NEW ZEALAND
CA299/2008
[2008] NZCA 467
THE QUEEN
v
DARRYL ROSS SIMPSON
Hearing:24 September 2008

Court:Glazebrook, Rodney Hansen and Ronald Young JJ
Counsel:P T Heaslip for Appellant

A Markham for Crown

Judgment:4 November 2008 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Rodney Hansen J)
[1]       Mr Simpson pleaded guilty in the Auckland District Court to four charges of obtaining a pecuniary advantage by deception. He was sentenced by Judge Thorburn to four years imprisonment. He appeals against his sentence.
Background
[2]       The offending took place between 16 October 2006 and 17 May 2007 while Mr Simpson was on parole following release from a sentence of three years imprisonment imposed in 2004 for similar offending. Three of the four offences were committed while he was on bail following his arrest for the first offence in time.
[3]       Mr Simpson’s modus operandi in each case was the same. He made “cold calls” at the homes of the victims, all of whom were elderly men and women. He introduced himself as a roofer and offering to carry out repair work on the victim’s roof. He persuaded them to pay him “deposits” for the work. In some cases he returned and obtained further payments on account. An engaging manner enabled Mr Simpson to win the confidence of the victims. They invited him into their homes and, on some occasions, allowed him to accompany them to the bank to withdraw the money.
[4]       Apart from minor works in two cases, the agreed repair work was not undertaken. By this means Mr Simpson fraudulently obtained a total of $19,200. After complaints to the police and publicity on the Fair Go programme, a total of $6,200 was refunded.
[5]       The victims were aged between 70 and 88 years. Three lived alone. The wife of the fourth victim was undergoing treatment for cancer at the time. All were on fixed incomes and could ill afford to lose the money. All have been embarrassed by the offending and have lost confidence and trust in others as a result.
[6]       Mr Simpson was rightly described by Ms Markham as an inveterate fraudster. At the age of 38 he has 106 convictions, of which 78 since 1994 are for fraud offences. A further 22 convictions are for theft and other offences of dishonesty. According to a psychological report, prepared for the purpose of his sentencing, many of his victims have been elderly but among them are work managers and family members, including his father.
[7]       Mr Simpson has been diagnosed as depressive and suffers from a gambling addiction. He told the psychologist that he has now reached “rock bottom” and understands the need to obtain help for his problem gambling. However, the psychologist notes that he has made similar claims in the past and has previously undergone counselling for problem gambling. The psychologist sees Mr Simpson’s anti-social attitudes and beliefs and entitlement beliefs as…

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 R v Simpson

Details

AGLC: R v Simpson [2008] NZCA 467
Case: [2008] NZCA 467
Decision Date: 4 November 2008

CaseChat Overview and Summary

The appellant, Darryl Ross Simpson, appealed against his sentence of four years imprisonment for four counts of obtaining a pecuniary advantage by deception. The sentence was imposed by the Auckland District Court after Simpson pleaded guilty to the charges. Simpson's offending involved targeting elderly victims, posing as a roofer, and obtaining payments for work that was either never done or only partially completed. The total amount defrauded was $19,200, with some of the money later refunded. The court identified the vulnerability of the victims and the high level of premeditation as significant aggravating factors. Simpson, who has a long history of fraud and theft convictions, was deemed a high risk for reoffending.

The legal issues before the Court of Appeal were whether the sentence was manifestly excessive and whether sufficient credit had been given for mitigating factors. Simpson's counsel argued that the starting point for the sentence was too high and that insufficient credit was given for mitigating factors, such as Simpson's guilty pleas and expressions of remorse. The Crown maintained that the sentence was appropriate given Simpson's history of similar offending and the need to protect the community.

The Court of Appeal found that a starting point of five to five and a half years imprisonment was not excessive, considering Simpson's criminal history and the need to protect vulnerable members of the community. The court also determined that the sentencing judge had appropriately discounted the sentence for mitigating factors, including the assistance Simpson had provided to the police. Although Simpson had provided further information to the police post-sentence, the court concluded that this did not warrant a reduction in his sentence. The appeal was dismissed, and the original sentence of four years imprisonment was upheld.

Orders