Rogers v R - [2010] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND
CA670/2009
[2010] NZCA 48
BETWEENDAVID JOHN ROGERS

Appellant

ANDTHE QUEEN

Respondent

Hearing:15 February 2010

Court:William Young P, Wild and Heath JJ
Counsel:J E Boyack for Appellant

M D Downs for Respondent

Judgment:3 March 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
An appeal against sentence
[1]        In June and October 2009, the appellant pleaded guilty to fraud and passport offending committed between 1989 and 1993. The reason for the delay between the offending and the pleas of guilty was that after his arrest on the fraud charges in 1993, he had absconded while on bail (and in the course of doing so, obtained and used a false passport). He eventually returned to New Zealand voluntarily in March 2009 and surrendered to the authorities.
[2]        Judge Bouchier sentenced him to three years imprisonment.[1] She also recorded at the end of her sentencing remarks that she had taken into account $10,000 reparation which we understand that the appellant had paid (or offered to pay) from funds which he had raised from friends.[2] It is not entirely clear from her remarks whether she intended to order reparation in that amount or was merely recording that this sum had been paid. For present purposes this is of no moment as it was not suggested by the Crown that the $10,000 had not been paid.
[1]R v Rogers (AKA) Hill DC Auckland CRI-2009-004-14474, 2 October 2009.
[2]At [37].
[3]        The appellant now appeals against sentence and this is primarily on the basis that the Judge’s starting point for the offending (four years) was too high and her discount (of 25 per cent) for the reparation, voluntary return, surrender and eventual pleas of guilty was too low.
The background
[4]        Between 31 March 1989 and 3 September 1992 the appellant defrauded the Department of Social Welfare by claiming welfare payments to which he was not entitled. Most of this offending consisted of him obtaining unemployment benefits by impersonation. To facilitate this impersonation, he had obtained the birth certificates of three children who had died in early infancy. He then assumed their identities. As well, he obtained benefits ostensibly payable to another person at a time when, to the appellant’s knowledge, that person was not entitled to receive payment (as he was living overseas).
[5]        The police became alerted to this offending as a result of entirely different offending by the appellant involving him using automatic teller machines (ATMs) to withdraw money from the bank accounts of two other deceased individuals. When the police investigated the appellant in relation to the ATM offending, they found documents which alerted them to his employment benefit frauds.
[6]        All of this offending gave rise to 51 charges of using a document to obtain a pecuniary advantage, three charges of obtaining a document to obtain a pecuniary advantage and one charge of obtaining by false pretences.
[7]        The…

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 Rogers v R

Details

AGLC: Rogers v R [2010] NZCA 48
Case: [2010] NZCA 48
Decision Date: 3 March 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, David John Rogers, the appellant, appealed against his sentence for fraud and passport offending. Rogers had pleaded guilty to committing these offences between 1989 and 1993, after absconding on bail for the fraud charges in 1993. Rogers voluntarily returned to New Zealand in March 2009 and surrendered to the authorities. The High Court Judge Bouchier sentenced Rogers to three years imprisonment and also noted a $10,000 reparation which Rogers had paid or offered to pay. Rogers argued that the Judge's starting point for the offending (four years) was too high and her discount (of 25 per cent) for the reparation, voluntary return, surrender and eventual pleas of guilty was too low.

The Court of Appeal found that the starting point sentence was at the top end of the available range. They also found that the Judge's 25 per cent reduction for mitigating factors included allowance for the reparation of $10,000. The Court of Appeal held that the round figures primarily used by the Judge (four years and 25 per cent) and the amount of the reparation compared to the total losses, did not persuade them that a different sentence should have been passed. Accordingly, the appeal was dismissed.

The final orders of the Court of Appeal were that the appeal against sentence was dismissed. The three-year imprisonment sentence and the $10,000 reparation ordered by the High Court would stand.

Orders