Terrell v Police - [2013] NZHC 734

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-24 [2013] NZHC 734

BETWEEN CHRISTOPHER JOHN TERRELL
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 10 April 2013

Counsel: JHM Eaton for Appellant
N M Robson for Respondent

Judgment: 12 April 2013

JUDGMENT OF MILLER J

[1] Mr Terrell was sentenced to six months community detention and 200 hours

community work on three charges, one of obtaining by deception1 and two of theft

by a person in a special relationship.2

He appeals the sentence of community

detention, saying that he should have got more community work, perhaps the maximum sentence of 400 hours.

[2] The offences happened at a time when Mr Terrell’s longstanding car dealing business was in its death throes. He agreed to sell a Porsche on the basis that its owner, the first victim, would receive $62,500. Instead he traded it, receiving
$47,000 and another car, a Passat. He paid the first victim $45,000, promising the rest when the Passat was sold. But when he sold the Passat he put the proceeds,
$19,000, into his own bank account. He lied to the first victim about selling the

Passat, and shortly afterward his business went into liquidation, owing creditors

$1.6m. The victim lost $17,500.

1 Crimes Act 1961, s 240(1)(c) and s 241(a).
2 Crimes Act 1961, s 220(1)(b) and s 223(a).

TERRELL v NZ POLICE HC CHCH CRI-2013-409-24 [12 April 2013]

[3] The second victim purchased a vehicle from Mr Terrell, trading in a Dodge. The victim paid him $51,800 to cover finance owed to UDC on the Dodge. He sold the Dodge for $45,000, without disclosing UDC’s security interest. Several months later, shortly before liquidation, Mr Terrell paid UDC $24,000. UDC later took action against the second victim. The loss in that case was $22,800.

[4] These incidents led to the charges of theft. Mr Terrell made full reparation to both victims by the time of sentencing.

[5] The remaining charge arose from Mr Terrell’s relationship with a third victim, a close friend with whom he owned a company, GTI Investments Ltd. The company was under pressure from its financier. So the third victim arranged a loan from Southern Finance Ltd, a company which he also owned. Mr Terrell gave security over stock in his car yard. The list of vehicles he tendered included one that was encumbered, two that had been sold, and one that he was selling on behalf. The deficiency was identified when Southern Finance checked the schedule. Mr Terrell was required to provide additional security over his home, which was later sold to pay Southern Finance. So there was no loss on that occasion.

[6] Mr Terrell is aged 44, with only one previous conviction, for driving with excess alcohol. He is married with two children. He lost his business and home, and he has been bankrupted. However, he is in employment, and his employer is willing to support him. His reoffending risk is low.

[7] Having regard to reparation paid, the probation…

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 Terrell v Police

Details

AGLC: Terrell v Police [2013] NZHC 734
Case: [2013] NZHC 734
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the case of Terrell v Police, the appellant, Mr. Christopher John Terrell, appealed against his sentence of six months community detention and 200 hours of community work, imposed on three charges: obtaining by deception and two instances of theft by a person in a special relationship. Mr. Terrell argued that he should have received more community work, perhaps the maximum sentence of 400 hours. The High Court of New Zealand, Christchurch Registry, presided over by Miller J, heard the appeal on 10 April 2013 and delivered the judgment on 12 April 2013.

The legal issues the court was required to decide were whether the Judge failed to take into account Mr. Terrell’s relationship with the third victim and the third victim’s status as both borrower and lender, and if the Judge overstated the culpability of the third offence. Additionally, the court had to determine whether the maximum community detention sentence with a seven-day curfew was preferable to a longer term of community work, and how community detention would further the objects of sentencing.

The court's reasoning and outcome were as follows: Firstly, the court accepted that the Judge did not refer to the relationship with the third victim, but it was determined that this point related only to the last and least serious charge. Furthermore, the business relationship between the two men changed when Southern Finance became the financier to the business, with the third victim primarily becoming a lender. The court found no material error of fact in the Judge's decision.

The court noted that the sentence of community detention was intended to provide a higher level of restriction and supervision of offenders than the then existing community sentences. The court found that the sentence was available as an alternative to imprisonment, which is how the Judge used it. The court concluded that the sentence was too harsh, sufficiently so to qualify as manifestly excessive, and thus allowed the appeal. The term of community detention was reduced to three months, while the curfew and other aspects of the sentence remained unchanged.

In summary, the court allowed the appeal and reduced the term of community detention to three months, while maintaining the curfew and other aspects of the sentence. The court determined that the original sentence was too harsh and manifestly excessive, considering the factors such as reparation, financial stress, and the likelihood of reoffending.

Orders