Wynyard v The Queen - [2016] NZCA 135

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/2015
[2016] NZCA 135

BETWEEN	GLENDA MARY WYNYARD Appellant
AND	THE QUEEN Respondent

Hearing:	8 April 2016
Court:	Randerson, Lang and Clifford JJ
Counsel:	M P Reed QC and R S Reed for Appellant D R La Hood for Respondent (by AVL)
Judgment:	8 April 2016 at 10 am
Reasons:	15 April 2016

FINAL JUDGMENT OF THE COURT

AThe appeal against sentence on counts 1, 11, 12 and 13 is allowed.
BThe sentences of home detention imposed in the District Court on those charges are quashed.
C A total fine of $10,000 is imposed on counts 1, 11, 12 and 13.
DThe fine must be paid to the District Court no later than 15 April 2016.
EBail is continued until payment of the fine is made in full on these terms:
(i)The appellant must surrender her passport to the Registrar of this Court by 2pm today [8 April 2016].
(ii)The passport will be returned to the appellant upon the Registrar being satisfied by appropriate documentary evidence that the fine has been paid in full.
(iii)The appellant will then be released from bail and may return to Australia.

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REASONS OF THE COURT

(Given by Lang J)

Ms Wynyard stood trial in the District Court on 13 charges laid under the Crimes Act 1961. She was found guilty on 11 of those charges and sentenced to eight months home detention.[1] In an interim judgment delivered on 17 December 2015, this Court allowed her appeal against conviction on seven charges.[2] The convictions in respect of those charges were set aside and the sentences imposed in respect of them were quashed.
[1]R v Wynyard [2015] NZDC 7240 [sentencing notes].
[2]Wynyard v R [2015] NZCA 610 [interim judgment].
The Court was then required to determine the appeal against sentence in relation to the remaining charges, being counts 1, 11, 12 and 13. Each of those charges alleged that Ms Wynyard dishonestly used documents to obtain a pecuniary advantage. Following a further hearing on 8 April 2016 we quashed the sentences of home detention imposed on those charges and substituted a fine of $10,000.[3] We also imposed bail conditions designed to ensure the fine was paid before Ms Wynyard returned to Australia. The fine has now been paid in full.
[3]Wynyard v R [2016] NZCA 112 [results judgment on sentence appeal].
We indicated on 8 April 2016 that our reasons would follow. These are our reasons.

Factual background

The general background to Ms Wynyard’s offending is to be found in our interim judgment and we do not propose to repeat it.[4] Instead, we propose to briefly outline the factual basis for each of the charges in respect of which we were required to reconsider the issue of sentence. In doing so we largely adopt the narrative provided by Mr La Hood for the Crown. We did not take counsel for Ms Wynyard to dispute the summaries contained in the Crown’s submissions.

Count 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.

Continue reading Wynyard v The Queen

Details

AGLC: Wynyard v The Queen [2016] NZCA 135
Case: [2016] NZCA 135
Decision Date: 8 April 2016 at 10 am

CaseChat Overview and Summary

In the case of Wynyard v The Queen, the Court of Appeal of New Zealand was required to reconsider the sentence imposed on the appellant, Glenda Mary Wynyard, on counts 1, 11, 12, and 13. Wynyard had been found guilty of dishonestly using documents to obtain a pecuniary advantage and was sentenced to eight months of home detention. The Court was required to decide whether the sentence was appropriate and, if not, to impose an alternative penalty.

The court held that the original sentence was unduly lenient and that the appropriate sentence would ordinarily have been one of community work. However, given Wynyard's current circumstances, living in Australia where she has re-established her life and appears to be doing well, the court considered it inappropriate to require her to remain in New Zealand while serving a sentence of community work. Instead, the court considered that a fine of $10,000 was a sufficient penalty having regard to all the circumstances of the case.

The court quashed the sentences of home detention imposed in the District Court on counts 1, 11, 12, and 13, and imposed a total fine of $10,000. The fine must be paid to the District Court no later than 15 April 2016. Bail is continued until payment of the fine is made in full on the following terms: Wynyard must surrender her passport to the Registrar of the Court by 2 pm on 8 April 2016, the passport will be returned upon the Registrar being satisfied by appropriate documentary evidence that the fine has been paid in full, and Wynyard will then be released from bail and may return to Australia.

Orders