R v van Wakeren - [2008] NZCA 492

IN THE COURT OF APPEAL OF NEW ZEALAND
CA58/2008
[2008] NZCA 492
THE QUEEN
v
RONALD VAN WAKEREN
Hearing:14 October 2008

Court:Arnold, Hugh Williams and Wild JJ
Counsel:C P Comeskey and J Soodram for Appellant

M T Davies for Crown

Judgment:24 November 2008 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Van Wakeren appeals against a sentence of two years and three months’ imprisonment imposed on him in the District Court at Auckland by Judge Gittos, after he pleaded guilty to one count of forgery: DC AK CRI-2004-004-021409 1 February 2008.
[2] The Judge’s sentencing starting point of two years imprisonment is accepted. The appellant challenges:
(a)As excessive, the Judge’s uplift of one year to reflect aggravating factors, in particular Mr Van Wakeren’s previous offending; and
(b)As inadequate, the discount of nine months for the guilty plea and assistance provided by Mr Van Wakeren to the Police.

[3]       Overall, the resulting sentence of two years three months imprisonment is challenged as manifestly excessive.
Background
[4]       The charge resulted from Mr Van Wakeren’s involvement in a scheme to defraud the HSBC Bank of $180,000. On 15 October 2003 Mr Van Wakeren applied in the name of one of the complainants to rent a private post box at Ponsonby for 12 months. He gave full particulars of that complainant’s name and address and forged his signature. He was allocated a post box in that complainant’s name. That forged application was the basis for the charge.
[5]       One of the other fraudsters then applied, also in the same complainant’s name, to redirect the two complainants’ mail from their Auckland home to the post box Mr Van Wakeren had rented. As authority for the mail re-direction application, this other person used a stolen New Zealand passport which had been altered to give that complainant’s particulars.
[6]       On 23 October 2003 one of the fraudsters contacted the HSBC Bank, claiming to be one of the complainants, and arranged to meet a mobile mortgage manager at a coffee shop in downtown Auckland. This fraudster completed an application in that complainant’s name to borrow $180,000 on the security of the complainants’ Auckland residential property.
[7]       This fraud was discovered when the complainants inquired of the Post Office about non-receipt of their mail. The discovery was just in time: the Bank’s approval of the loan application was literally ‘in the mail’, addressed to the private post box at Ponsonby.
The sentencing starting point
[8]       Although he contended that it was the maximum available, Mr Comeskey did not challenge the Judge’s sentencing starting point of two years imprisonment. The Judge noted that the Crown had contended for “three-three and a half years, (Mr Van Wakeren’s) counsel for something very substantially less than that”. He categorised his two year starting point as one “really quite … generous” to Mr Van Wakeren. We agree with that.
The 50 per cent uplift
[9]       Mr Comeskey accepted that an…

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 van Wakeren

Details

AGLC: R v van Wakeren [2008] NZCA 492
Case: [2008] NZCA 492
Decision Date: 24 November 2008

CaseChat Overview and Summary

Ronald van Wakeren appeals against his two-year and three-month imprisonment sentence, imposed by the District Court at Auckland, following his guilty plea to one count of forgery. The appellant argues that the sentencing uplift of one year, reflecting his previous offending, and the discount of nine months for his guilty plea and assistance to the police, were both inappropriate. The appellant further contends that the overall sentence was manifestly excessive.

The Court of Appeal considered the rationale for increasing sentences to reflect the prisoner’s previous offending, as discussed in previous cases. It found that the appellant, with about 160 convictions for dishonesty, including 84 for fraud, was a recidivist offender. The court agreed that the sentence reflected the appellant’s persistent offending and was necessary to protect the public from his depredations. The court also found that the judge's discount for the appellant's guilty plea and assistance was appropriate, considering the unusual circumstances of the case, including the unrelated nature of the assistance to the offence for which he was being sentenced.

The appeal was dismissed, and the sentence upheld.

Orders