Thompson v Police - [2023] NZHC 3229

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-123 CRI-2023-409-124 CRI-2023-409-125 CRI-2023-409-127

[2023] NZHC 3229

BETWEEN NIGEL TERRENCE WILLIAM THOMPSON
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 September 2023

Appearances:

T D A Harré for Appellant

G E Alloway for Respondent

Judgment:

15 November 2023

Reissued:

17 November 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 15 November 2023 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:
Crown Solicitor’s Office, Christchurch

THOMPSON v POLICE [2023] NZHC 3229 [15 November 2023]

Introduction

[1] On 6 July 2023 Mr Nigel Thompson was sentenced to three years seven months’ imprisonment by Judge M Callaghan in the District Court at Christchurch for 18 charges of dishonesty related offending:1

(a)theft by person in a special relationship (x 7);2

(b)obtaining by deception (representative);3

(c)obtaining a document;4

(d)using a document for pecuniary advantage (x 4);5

(e)aiding and abetting another person to knowingly apply for a deduction of tax for a purpose other than payment to the Commissioner of Inland Revenue (x 2, representative);6

(f)knowingly provide a false income tax return to obtain a tax refund;7 and

(g)making a false or misleading statement (x 2).8

[2] Mr Thompson appeals his sentence on the basis that it is manifestly excessive. He says that the Judge should not have imposed cumulative sentences or alternatively that there was an insufficient adjustment for totality resulting in too high a starting point. The starting point should have been four years. Mr Thompson also originally contended that the discount for reparation was unduly restrictive given that of the

1      R v Thompson [2023] NZDC 14091.
2      Crimes Act 1961, ss 220(1)(b) and 223(a); maximum penalty seven years’ imprisonment.
3      Sections 240(1)(a) and 241(a); maximum penalty seven years’ imprisonment.
4      Section 228(1)(a); maximum penalty seven years’ imprisonment.
5      Section 228(1)(b); maximum penalty seven years’ imprisonment. Three of these convictions are representative.
6      Tax Administration Act 1994, ss 143A(1)(d) and 148(1); maximum penalty five years’ imprisonment or a fine not exceeding $50,000 or both.
7      Sections 143B(1)(c) and (g); maximum penalty five years’ imprisonment or a fine not exceeding
$50,000 or both.
8      Companies Act 1993, ss 377(1)(a) and 373(4)(c); maximum penalty five years’ imprisonment or a fine not exceeding $200,000.

$427,000 total sum involved in the offending approximately $260,000 had been repaid. At the hearing however, counsel for Mr Thompson, Mr Harré, conceded that the discount afforded for reparation was within range. Such a concession was reasonable. I do not address this point further.

[3] The police oppose the appeal on the grounds that cumulative sentences were appropriate and in any event the starting point was not manifestly excessive.

Facts

[4] The offending relevant to this appeal is categorised by the sentencing Judge as Crown offending, Inland Revenue Department (IRD) offending and Ministry of Business, Innovation and Employment (MBIE) offending. For simplicity, I adopt the same categorisation.

Crown offending

Nigel Thompson Motor…

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 Thompson v Police

Details

AGLC: Thompson v Police [2023] NZHC 3229
Case: [2023] NZHC 3229
Decision Date: 15 November 2023

CaseChat Overview and Summary

Nigel Thompson appeals against his sentence of three years and seven months' imprisonment for various charges of dishonesty-related offending, arguing that it is manifestly excessive. The appeal was heard in the Christchurch Registry of the High Court of New Zealand, where the central issue was whether the sentence imposed by the District Court was appropriate given the nature and extent of Thompson's offending. The police opposed the appeal, maintaining that the sentence was justified and that cumulative sentencing was appropriate.

In his judgment, Hinton J noted that Thompson's offending spanned multiple categories, including Crown, Inland Revenue Department (IRD), and Ministry of Business, Innovation and Employment (MBIE) offences. These offences involved significant breaches of trust and amounted to a total benefit to Thompson of approximately $427,500. The sentencing judge had set a starting point of six years' imprisonment but reduced it to three years and seven months after applying discounts for various mitigating factors. Thompson argued that the starting point should have been four years, not six, and that the discount for reparation was unduly restrictive.

Hinton J found that cumulative sentencing was not appropriate as the offending, though prosecuted by different agencies, was similar in nature and part of a connected series. The court concluded that a global starting point of five years' imprisonment was justified, considering factors such as the duration and sophistication of the offending, the number of victims, and the breach of trust. The court compared Thompson's case with other cases involving similar levels of culpability and found that the District Court's starting point was too high. Consequently, the sentence of three years and seven months was deemed manifestly excessive, and the appeal was allowed. The sentence was reduced to three years' imprisonment.

Orders