Thomson v Police - [2014] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000024 [2014] NZHC 2332

BETWEEN
GARETH THOMSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 September 2014

Appearances:

S A Saunderson-Warner for Appellant
CER Power for Respondent

Judgment:

24 September 2014

ORAL JUDGMENT OF GENDALL J

Introduction

[1] Mr Thomson appeals against a sentence of two years’ imprisonment imposed

by Judge Coyle in the Dunedin District Court on 17 July 2014 for charges of: (a) obtaining by deception;1
(b) driving with excess breath alcohol;2 and

(c) driving while forbidden.3

[2] Mr Thomson appeals on grounds that the sentence Judge Coyle imposed was manifestly excessive for the following reasons:

(a) the starting point for the obtaining by deception offence was too high;

1      Crimes Act 1961, s 240(1)(b). Maximum penalty of seven years’ imprisonment.
2      Land Transport Act 1998, s 56(4). Maximum penalty of two years’ imprisonment or fine $6000.
3      Section 52(1)(c). Maximum penalty of fine of $10,000.

THOMSON v NEW ZEALAND POLICE [2014] NZHC 2332 [24 September 2014]

(b) credit should have been given to the appellant for his attendance at a

Restorative Justice Conference with his mother; and

(c) the uplift of six months for previous convictions was too high.

Background

Obtaining by deception

[3] On about 14 June 2013, using the New Zealand Transport Agency website, Mr Thomson transferred the ownership of his mother’s 2011 vehicle, without her knowledge or permission, into his own name.

[4] Two weeks later around 1 July 2013, Mr Thomson applied for an online loan from Avanti Finance. Mr Thomson stated to Avanti Finance that he owned the vehicle and used it as security.

[5] On 3 July 2013, Avanti Finance sent loan documents to the appellant

Mr Thomson in Balclutha and he signed and faxed them back to Avanti Finance.

[6] As part of requirements Avanti Finance requested a letter from Mr Thomson’s mother confirming the transfer of ownership. On 4 July 2013 Mr Thomson faxed a forged letter he wrote purporting to be his mother to Avanti Finance confirming the ownership change.

[7] Avanti Finance then requested a copy of his mother’s driver’s licence to be faxed to them. On 5 July 2014 Mr Thomson faxed a copy of his mother’s driver’s licence to Avanti Finance with a contact phone number. Also on 5 July 2014 Avanti telephoned that number and spoke to Mr Thomson the appellant who pretended to be his mother. Avanti then approved a $16,000 loan and paid it into the appellant’s bank account.

[8] Mr Thomson acknowledged that he had attempted this idea with about 10 other finance companies he searched for on the internet. The other finance companies did not approve a loan because of Mr Thomson’s poor credit rating and

the fact that Mr Thomson had been given an expensive vehicle and that he was applying for a loan a very short space of time later.

Driving offences

[9] Turning now to the driving offences. On both 30 July 2008 and 7 February

2011, Mr…

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 Thomson v Police

Details

AGLC: Thomson v Police [2014] NZHC 2332
Case: [2014] NZHC 2332
Decision Date: 24 September 2014

CaseChat Overview and Summary

Gareth Thomson appealed against his two-year imprisonment sentence for obtaining by deception, driving with excess breath alcohol, and driving while forbidden. The appellant argued that the sentence was manifestly excessive due to the starting point being too high, the absence of credit for his attendance at a Restorative Justice Conference, and the six-month uplift for previous convictions being too high. The court examined the legal principles governing sentence appeals, emphasizing that not every error in sentencing would result in a successful appeal. The court found that the starting point of 18 months' imprisonment for the obtaining by deception offence was appropriate, considering the aggravating factors such as premeditation, the vulnerability of the victim, and the breach of trust. The court also upheld the six-month uplift for previous dishonesty offending, as it bore a reasonable relationship to the starting point. Regarding the mitigating factor of the Restorative Justice Conference, the court acknowledged the appellant's participation but noted that the victim had not accepted it as expiating or mitigating the wrong. Consequently, the court found that Judge Coyle's decision was justified and dismissed the appeal.

Final orders: The appeal is dismissed.

Orders