Thompson v The Queen - [2016] NZCA 156

IN THE COURT OF APPEAL OF NEW ZEALAND

CA488/2015
[2016] NZCA 156

BETWEEN	SYDNEY PHILLIP THOMPSON Appellant
AND	THE QUEEN Respondent

CA594/2015
BETWEEN	JANLYN MARYANNE DUZEVICH Appellant
AND	THE QUEEN Respondent

Hearing:	10 March 2016
Court:	Winkelmann, Peters and Collins JJ
Counsel:	P K Hamlin and E J Burton for Appellant Thompson J-A Kincade for Appellant Duzevich A J Ewing for Respondent
Judgment:	26 April 2016 at 11 am

JUDGMENT OF THE COURT

AThe applications for extensions of time to appeal are granted.
BThe appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Thompson and Ms Duzevich appeal a sentence of 33 months’ imprisonment imposed on each of them by Judge Andrée Wiltens in the Auckland District Court on 22 July 2015.[1] The sentences were imposed after Mr Thompson and Ms Duzevich each pleaded guilty to two representative charges of jointly obtaining money by deception.[2]

Background

[1]R v Duzevich [2015] NZDC 14033.

[2]Crimes Act 1961, ss 240(1)(a) and 66(2).

The summary of facts to which Mr Thompson and Ms Duzevich pleaded guilty explained that in January 2009 Mr Thompson successfully applied to Work and Income New Zealand (WINZ) for “known-provider” status for his second-hand furniture business called Thompson and Thompson Rentals (Thompson and Thompson). This status meant that beneficiaries could use quotations supplied by Thompson and Thompson for furniture and whiteware when applying for a WINZ allowance/loan to purchase household goods. WINZ paid the funds directly to a bank account in the name of Mr Thompson.
In fact, Thompson and Thompson was defrauding WINZ and splitting the proceeds with loan applicants, who were complicit in the fraud. Usually the goods quoted were never actually supplied by Thompson and Thompson. Between January 2009 and January 2013, Thompson and Thompson provided fraudulent quotes to nine applicants, causing WINZ to pay $5,325 on the basis of the fictitious quotations.
In December 2011, the enterprise was expanded to include a business called Vichson Dentist and Optometrist (Vichson). Vichson applied to WINZ for authorisation to provide dental and optometry services. Complicit beneficiaries would provide WINZ with a quote from Vichson for dental treatment or optometry services. WINZ would then pay a loan/grant directly to a bank account in Mr Thompson’s name. The loan/grant was then split with the beneficiary receiving 75 per cent and Mr Thompson and Ms Duzevich receiving the balance.
By March 2013, Vichson had provided 295 false quotations to 280 individuals. WINZ had paid out $375,315.64 as a consequence.
The agreed summary of facts recorded Mr Thompson and Ms Duzevich received $95,160.16 between them. The summary of facts also recorded how Mr Thompson and Ms Duzevich worked together in Thompson and Thompson and Vichson and that Ms Duzevich also personally submitted a false quotation to WINZ in January 2012.
Mr Thompson and Ms Duzevich were charged on 12 April 2013. In September 2014, Mr Thompson sought a sentence indication. On 19 December 2014, Judge Andrée Wiltens gave Mr Thompson a sentence indication, in 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 Thompson v The Queen

Details

AGLC: Thompson v The Queen [2016] NZCA 156
Case: [2016] NZCA 156
Decision Date: 26 April 2016

CaseChat Overview and Summary

Sydney Phillip Thompson and Janlyn Maryanne Duzevich appealed against their sentences of 33 months' imprisonment each, imposed by Judge Andrée Wiltens in the Auckland District Court on 22 July 2015. The sentences were imposed after the appellants pleaded guilty to two representative charges of jointly obtaining money by deception. The appellants argued that Judge Wiltens had erred in not considering the profit forfeiture order made against Mr Thompson, not giving sufficient credit for their guilty pleas, not crediting Mr Thompson's remorse, and treating Ms Duzevich as equally culpable as Mr Thompson.

The court held that the appellants' arguments were without merit. The court found that the reparation achieved through the profit forfeiture order against Mr Thompson was compelled and therefore not voluntary, and as such, it was not appropriate to deduct the forfeited profits when quantifying the net gain achieved by the appellants or the net loss to WINZ. The court also found that there was no fault in Judge Wiltens not taking into account the ability of WINZ to recover loans from fraudulent beneficiaries. The court further held that the guilty plea discount adopted by Judge Wiltens was justified and that Mr Thompson's remorse was not a significant mitigating factor given the magnitude of the offending and the aggravating features present in the case. Finally, the court found that Ms Duzevich was an equal partner in the offending and bore equal responsibility for it.

The applications for extensions of time to appeal were granted, but the appeals against sentence were dismissed.

Orders