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Watchorn v R

Watchorn v R

Case [2014] NZCA 493 7 October 2014

Criminal Liability

Unauthorised Access to Computer Systems

Limitation Periods

Mens Rea & Intention

Evidence Law

Admissibility of Evidence

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA385/2014
[2014] NZCA 493

BETWEEN	JAMES WINSTON WATCHORN Appellant
AND	THE QUEEN Respondent

Hearing:	21 August 2014
Court:	O’Regan P, Simon France and Mallon JJ
Counsel:	S W Hughes QC for Appellant M D Downs for Respondent
Judgment:	7 October 2014 at 3.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe three convictions entered in the District Court are quashed.
CWe decline to exercise the power under s 386(2) of the Crimes Act 1961 to substitute verdicts of guilty for accessing a computer system and thereby dishonestly and without claim of right obtaining a benefit for the verdicts found by the Judge.
DWe do not order a retrial.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No

Introduction [1]

Section 249 [3]

Issues

Conviction appeal [4]
Sentence appeal [10]

Factual background [12]

Definition of “property” [22]

“Dishonestly” accessing a computer system [24]

Claim of right [34]

Propensity evidence [39]

Unreasonable verdict [48]

Drag and drop  [51]
T drive  [54]
USB stick   [55]
Lie  [56]
“I got what I wanted”  [58]
Home computer   [59]
Response to solicitors’ letter   [60]
Canada  [62]
Conclusion   [63]

Outcome: conviction appeal [64]

Should we replace the convictions? [65]

The parties’ submissions  [67]
Police v Le Roy  [69]
Legislative history  [75]
Statutory context  [77]
The “benefit” obtained by Mr Watchorn  [82]

Sentence [87]

Should we order a new trial? [100]

Result [101]

Postscript [102]

Introduction

The appellant, James Watchorn, was convicted after a Judge alone trial before Judge Roberts in the New Plymouth District Court, of three charges of accessing a computer system and thereby dishonestly and without claim of right obtaining property.[1] Judge Roberts sentenced the appellant to a term of imprisonment of two and a half years.[2] The appellant appeals against both conviction and sentence.
[1]R v Watchorn DC New Plymouth CRI-2012-043-3092, 29 April 2014.
[2]R v Watchorn DC New Plymouth CRI-2012-043-3092, 14 July 2014 [Sentencing Notes].
We heard the appeal on 21 August 2014. At the conclusion of the hearing we reserved our decision. However, we indicated that we had reached a clear view that even if the conviction were to stand, the sentence of imprisonment was not appropriate. Having reached that view, we indicated to counsel that we were prepared to grant bail to the appellant pending the delivery of this decision. We granted bail the following day.[3]

Section 249

[3]Watchorn v R [2014] NZCA 416.

The charges faced by the appellant were brought under s 249(1) of the Crimes Act 1961. Section 249 provides:
249 Accessing computer system for dishonest purpose
(1)Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—
(a)obtains any property, privilege, service, pecuniary advantage, benefit or valuable consideration; or
(b) causes loss to any other person.
(2)Every one is liable to imprisonment for a term not…

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 Watchorn v R

Details

AGLC: Watchorn v R [2014] NZCA 493
Case: [2014] NZCA 493
Decision Date: 7 October 2014 at 3.30 pm

CaseChat Overview and Summary

James Watchorn appeals against his convictions and sentence for accessing a computer system and thereby dishonestly obtaining a benefit. The appeal concerns the interpretation of s 249 of the Crimes Act 1961, which prohibits accessing a computer system and thereby dishonestly and without claim of right obtaining a benefit. The convictions related to the downloading of data from the computer system of Watchorn’s former employer, TAG Oil (NZ) Ltd (TAG), and its subsequent possession and use. The appeal was heard on 21 August 2014 and the Court reserved its decision. However, the Court indicated that it had reached a view that the sentence of imprisonment was not appropriate and indicated to counsel that it was prepared to grant bail to the appellant pending the delivery of this decision. The Court granted bail the following day.

The Court concluded that the convictions should be quashed, but only on the ground conceded by the Crown, namely that computer data is not “property” as defined. Having rejected all other grounds of appeal, it was necessary to address the Crown’s submission that the Court should substitute convictions based on obtaining a “benefit”. The Court concluded that the grounds for substituting new verdicts were not met in the present case. The Court concluded that it would not be fair to the appellant to order a retrial if the sentence he had already served equated with or exceeded the maximum sentence he would face if convicted at a retrial. The Court did not order a retrial.

In the Court’s view, the sentence imposed by the Judge exaggerated the seriousness of the offending. The Court considered that a sentence of community detention combined with community work, as was imposed in Dixon, was the appropriate sentence. Having regard to the fact that the appellant had now served a prison term of five weeks, the Court would, if it had had to decide the sentence appeal, have reduced the sentence imposed in the District Court to a term of imprisonment of 10 weeks, that is, the equivalent of the term that had now been served by the appellant.

Orders