Whale v The Queen - [2013] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA313/2012
[2013] NZCA 67

BETWEEN RICHARD HENRY WHALE
Appellant

AND THE QUEEN
Respondent

Hearing: 19 February 2013

Court: Arnold, Simon France and Dobson JJ

Counsel: C J Tennet for Appellant
P K Feltham for Respondent

Judgment: 18 March 2013 at 12 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against conviction and sentence is dismissed.
CTo the extent that it is uncompleted, the appellant is to resume his sentence 14 days after the date on which this judgment is delivered.

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REASONS OF THE COURT

(Given by Arnold J)

Introduction

Following a jury trial before Judge Burnett, the appellant, Mr Whale, was convicted on ten counts of accessing a computer system for a dishonest purpose contrary to s 249(1) of the Crimes Act 1961. He was sentenced to 12 months’ home detention and 380 hours of community work and was ordered to pay reparation of $141,000. The reparation order was subject to a condition that he be re-assessed every three months as to the repayment rate.[1]
[1] R v Whale DC Hamilton CRI-2009-075-0730, 3 June 2011.
Mr Whale now seeks an extension of time to appeal against his conviction and sentence. So far as his sentence is concerned, we understand that Mr Whale has largely completed his community work and period of home detention, so that effectively the sentence appeal relates only to the reparation order.
As Ellen France J directed in a minute dated 24 October 2012, we address the extension of time and the appeal together. Although the appeal was filed almost 12 months after the appellant was sentenced, the Crown is not prejudiced by the granting of an extension, so we extend time and focus on the merits of the appeal.

Background

In November 2007, a long-standing friend (the complainant) moved in with Mr Whale at his invitation. The complainant had been a farmer for many years and had recently separated from his wife. As a consequence, he had been having personal difficulties, particularly concerning the settlement of relationship property issues.
Early in 2007, the complainant had sold most of his livestock. The proceeds of the sale had been placed in an Elders Livestock Trust Account. The complainant’s wife managed to stop the release of the funds to the complainant. Mr Whale helped the complainant to obtain legal advice to enable the release of the funds and then suggested that the complainant deposit the funds in a dormant bank account which he (Mr Whale) had, so as to avoid any further problems of access to them. The complainant accepted this offer and arranged for $190,000 to be deposited in Mr Whale’s dormant account. The complainant intended to use the funds to meet tax obligations and to pay professional fees incurred in winding up his farming business and dealing with the relationship property dispute.
Mr Whale provided the complainant with an EFTPOS card and a Mastercard to enable him to…

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 Whale v The Queen

Details

AGLC: Whale v The Queen [2013] NZCA 67
Case: [2013] NZCA 67
Decision Date: 18 March 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Richard Henry Whale against his conviction and sentence. Whale was convicted on ten counts of accessing a computer system for a dishonest purpose and was sentenced to 12 months of home detention, 380 hours of community work, and ordered to pay $141,000 in reparation. The appeal related to the reparation order, which Whale sought to overturn. The Court of Appeal granted an extension of time for the appeal and dismissed the appeal against both conviction and sentence.

The court found that Judge Burnett's instructions to the jury on the claim of right and inferences were adequate and that the jury's decision to convict was supported by the evidence. The court also found that the reparation order was appropriate, given the appellant's offer to pay the full amount and his involvement in a new business enterprise. The Court of Appeal rejected the argument that the reparation order should not have been made in full, and found no basis for granting the sentence appeal.

The Court of Appeal granted the application for an extension of time to appeal and dismissed the appeal against conviction and sentence. The appellant was to resume his sentence 14 days after the date on which this judgment was delivered.

Orders