Thomson v The Queen - [2020] NZHC 901

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-5

[2020] NZHC 901

BETWEEN
ANDREW W C TONKS THOMSON

Appellant

AND

THE QUEEN

Respondent

Hearing:
4 May 2020

(by way of Virtual Meeting Room)

Appearances:

K McHugh for Appellant

R Donnelly for Respondent

Judgment:

5 May 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 5 May 2020 at 4 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: .

THOMSON v R [2020] NZHC 901 [5 May 2020]

[1] Andrew Thomson was sentenced on various charges of fraudulent conduct to 28 months’ imprisonment and ordered to pay reparation in the amount of $71,800.1 Mr Thomson appeals the amount of the reparation order.

Background

[2] As a result of a personal relationship that Mr Thomson developed with his victim, he obtained $300,000 from her to invest in a bogus property development. He forged documents and made false representations to obtain the funds. Other frauds were committed on other businesspeople at around the same time, but they were fortunately able to cancel agreements and avoid loss upon discovering Mr Thomson’s true identity and his past fraudulent offending.

[3] Mr Thomson has some seven previous convictions for stealing in Australia. When he came to New Zealand he stole from his employer and deceived a finance company into lending him money by creating fictitious and altered documents. As a result of those frauds he was disqualified from holding office as a company director and imprisoned. A little after a year from being released from prison he changed his name and began his relationship with his present victim. The loss to her from Mr Thomson’s fraudulent offending has been calculated by police to amount to
$88,000.

District Court sentencing

[4] Judge Brandts-Giesen, in arriving at an effective sentence of 28 months’ imprisonment, dismissed Mr Thomson’s claims of remorse. The Judge noted his convictions for similar offending in Australia and his fraudulent conduct that commenced shortly after he arrived in New Zealand. As the Judge put it, Mr Thomson’s latest offending “was more of the same but on a greater scale”.

1 Theft by a person in a special relationship (s 220(1)(b) of the Crimes Act 1961, maximum penalty of seven years’ imprisonment); two charges of using a forged document to obtain a benefit (s 257(1)(a) of the Crimes Act 1961, maximum penalty of 10 years’ imprisonment); using a document to claim property (s 228(1)(b) of the Crimes Act 1961, maximum penalty of seven years’ imprisonment); two charges of managing a company whilst prohibited (s 382(1) of Companies Act 1993, maximum penalty of five years’ imprisonment/$200,000 fine); making a false statement (s 377(1) of the Companies Act 1993, maximum penalty of five years’ imprisonment/$200,000 fine).

[5] Previous reparation for the earlier offending in the sum of some $18,000 remains unpaid. Judge Brandts-Giesen shared the view of the pre-sentence report writer that Mr Thomson’s risk of reoffending is very high.

[6]…

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 The Queen

Details

AGLC: Thomson v The Queen [2020] NZHC 901
Case: [2020] NZHC 901
Decision Date: 5 May 2020

CaseChat Overview and Summary

In this case, the appellant, Andrew Thomson, appealed against the reparation order made by Judge Brandts-Giesen in the District Court. Mr Thomson was sentenced to 28 months’ imprisonment for multiple charges of fraudulent conduct, including theft by a person in a special relationship, using forged documents, and managing a company while prohibited. The District Court ordered Mr Thomson to pay reparation in the amount of $71,800, comprising $8,000 for emotional harm and $63,800 for the victim’s monetary loss. Mr Thomson appealed the amount of the reparation order, arguing that it was excessive and would result in undue hardship.

The legal issue before the court was whether the reparation order imposed by the sentencing judge was excessive and resulted in undue hardship to Mr Thomson. The court had to consider the relevant statutory provisions and guiding case law to determine if the reparation order was appropriate in light of Mr Thomson’s financial circumstances and capacity to pay. The court needed to ensure that the order was not manifestly excessive, bearing in mind the hardship suffered by the victim.

The court found that the sentencing judge had not considered Mr Thomson’s financial capacity to pay the reparation order, nor had the judge determined if the order would result in undue hardship. The court observed that Mr Thomson had no means to pay the reparation order, was unemployed, and had no family in New Zealand. The court considered the pre-sentence report, which suggested that the reparation order would not receive Mr Thomson’s attention as a priority despite his intentions. The court concluded that the sentencing judge could not have had a realistic measure of confidence that the reparation payments could be made, and the order was manifestly excessive.

The court accepted the Crown’s submission that an appropriate reparation sum would be $13,000, comprising $8,000 for emotional harm and $5,000 for the victim’s monetary loss. The court considered that this reduced sum would not result in undue hardship for Mr Thomson. The court allowed the appeal, quashed the reparation order in the sum of $71,800, and substituted a new order for reparation in the sum of $13,000 to be paid at $50 per week from 12 January 2022.

The final orders of the court were to allow the appeal, quash the reparation order in the sum of $71,800, and substitute a new order for reparation in the sum of $13,000 to be paid at $50 per week from 12 January 2022. The court’s decision was based on the need to balance the financial capacity of the offender and the hardship suffered by the victim.

Orders