Tonks v Police - [2017] NZHC 880

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-2

CRI-2017-425-3 [2017] NZHC 880

BETWEEN
ANDREW CHARLTON TONKS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 27 March 2017

Counsel:

L C Denton for Appellant
M A Mika for Respondent

Judgment:

4 May 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] On 19 December 2016, the appellant Mr Tonks was sentenced to 22 months and two weeks imprisonment, with a reparation order of $18,800, following convictions on three counts of theft by a person in a special relationship pursuant to ss 220(1) and 223(a) of the Crimes Act 1961, and one count of using a forged document to obtain a pecuniary advantage, pursuant to s 257(1)(a) of the Crimes Act.

[2] On appeal, the end sentence is submitted to be manifestly excessive. The starting point for the forgery is submitted too high, so that the overall starting point of two and a half years is too high. It is also submitted that there should have been an adjustment in considering the sentence in its totality, and that the Judge placed undue weight on offending while on bail and the motivation behind that offending when declining home detention. Home detention is submitted the least restrictive,
and available outcome.

TONKS v NEW ZEALAND POLICE [2017] NZHC 880 [4 May 2017]

Background

[3] The three counts of theft by a person in a special relationship stem from the appellant’s employment by Apex Rentals. He stole $12,000 from his employer simply by failing to deposit cash into its bank account. He also sold two of Apex Rental’s discontinued vehicles for $7,500 and kept the money. The reparation sought is $18,500.

[4] While on bail on the three charges of theft, he attempted to defraud Turners Finance to access funds to meet his reparation order. He falsified a private sale agreement, payslip and bank statement, and managed to have Turners Finance lend him $23,850. Turners Finance found out and was able to recover that money.

District Court

[5] For theft by a person in a special relationship, the Judge adopted a starting point of 14 months imprisonment. He identified aggravating features in the significant breach of trust, premeditation, and manipulation of the employer ’s system. For the forgery, he adopted a sentence of 16 months imprisonment cumulative with the theft charges. A particular aggravating factor was offending while on bail, and the attempt to dishonestly fund the Court ordered reparation. Altogether, the Judge adopted a starting point of 30 months imprisonment.

[6] The Judge then applied a 25 per cent discount for the guilty pleas. This resulted in a sentence of 22 months and two weeks imprisonment. Home detention was not ordered given the aggravated nature of the offending, and particularly the forgery committed while on bail.

Jurisdiction on appeal

[7] Mr Tonks appeals as of right.1 Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence and a

1…

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.

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Details

Case: [2017] NZHC 880
Decision Date: 4 May 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Andrew Charlton Tonks appeals against his conviction and sentence. The appellant was sentenced to 22 months and two weeks imprisonment, with a reparation order of $18,800, following convictions on three counts of theft by a person in a special relationship and one count of using a forged document to obtain a pecuniary advantage. The appeal concerns the sentence imposed by the District Court.

The appellant submits that the starting point for the forgery was too high, resulting in an overall starting point of 30 months imprisonment being too high. The appellant also submits that there should have been an adjustment in considering the sentence in its totality and that the Judge placed undue weight on the offending while on bail and the motivation behind that offending when declining home detention. Home detention is submitted as the least restrictive and available outcome.

The Court found that the starting point for forgery was not too high. The appellant’s offending was much more serious than in the authorities referred to, as it was committed while on bail for other fraudulent offending. The attempt to defraud Turners Finance was highly aggravating, as significant loss could have been caused to Turners Finance, which was not the case in the authorities referred to. The Court also found that the Judge was not in error in refusing to order home detention given the need for denunciation and deterrence of the offending. The Judge was rightly troubled that the forgery occurred while on bail and through the use of computers when the appellant was at home.

The appeal is dismissed.

Orders