| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA385/2014 [2014] NZCA 493 |
| BETWEEN | JAMES WINSTON WATCHORN |
| AND | THE QUEEN |
| Hearing: | 21 August 2014 |
Court: | O’Regan P, Simon France and Mallon JJ |
Counsel: | S W Hughes QC for Appellant |
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
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…
Continue reading Watchorn v R
Sign in free to access the full text
- AGLC
- Watchorn v R [2014] NZCA 493
- Case
- [2014] NZCA 493
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.