DREVER v POLICE [2022] NZHC 3179

DREVER v POLICE [2022] NZHC 3179 [30 November 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-318[2022] NZHC 3179BETWEEN AARON CARL DREVERAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2022Appearances: J Olsen for AppellantW N Fotherby and J L Gibson for RespondentJudgment: 30 November 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 30 November 2022 at 3pmRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Aaron Drever (the appellant) appeals against the decision of Judge EM Thomasdelivered on 12 August 2022 sentencing him to two years and two months'imprisonment and ordering him to pay reparation of $75,000 on charges of fraudrelated offending. The grounds of appeal allege that the sentence imposed ismanifestly excessive. The appellant says that while the Judge allowed him appropriatediscounts for remorse and personal circumstances, he failed to allow a discount for hisprevious good character and prospects of rehabilitation. The appellant says that hadsuch a discount been allowed, the purposes of sentencing could have been adequatelymet by a sentence of home detention, and he seeks an order setting the sentence asideand for a sentence of home detention to be substituted in its place.BackgroundThe charges[2] The appellant pleaded guilty to the following charges:(a) making a false document (x 2);1(b) dishonestly using a document (x 2); 2 and(c) obtaining by deception.3The offending[3] Judge Thomas conveniently summarised the offending as follows:4[11] On 16 December 2016 you were a suspended real estate agent. Youarranged to sell a portion of land then belonging to the Avondale BowlingClub. Unbeknown to the club, you set up a company with which you wereassociated to buy the land. You also set up an immediate on-sale of thatproperty.1 Crimes Act 1961, s 256(1): carrying a maximum penalty of 10 years' imprisonment.2 Section 259(1)(a): carrying a maximum penalty of 10 years' imprisonment.3 Sections 240(1)(a) and 241(a): carrying a maximum penalty of seven years' imprisonment.4 New Zealand Police v Drever [2022] NZDC 15363.[12] You convinced the Bowling Club to sell the land for $330,000. Yourcompany bought it for that price. You immediately on-sold it as you hadagreed with the purchaser for $825,000. You did not disclose your associationwith any of the parties to any of the others. That way, you illegally obtained$466,000, give or take.[13] In September 2019, you approached those involved with putting onspeedway events at Western Springs. You asked to assist. You convinced themthat you should. They agreed. Between October and December 2019 yousubmitted 10 invoices to them under the name Billboard Solutions. Thoseinvoices were false. All you had manufactured, all were paid, and that wayyou illegally obtained $86,000. You also did the same in respect of twoinvoices under the name Toy and Model Collectors Market Limited. That is afictitious company. You created two fictitious invoices. You submitted them,they were paid. You received, give or take, $15,000 on those invoices.The Judge's decision[4] In his sentencing decision the Judge adopted a starting point of four years'imprisonment. He identified the following aggravating features of the offending:(a) breach of trust;(b) premeditation;(c) planning and preparation;(d) repeated offending; and(e) the extent of the loss and associated harm.[5] The Judge said:[2] I told you that your offending was serious enough to warrant a startingpoint of four years' imprisonment. We looked, closely, at your personalcircumstances, your mental health issues. I incorporated what we knew of thatthen, including your ADHD diagnosis and the effects of that into any reductionI would give you. I included a maximum allowance for a guilty plea becauseat the time, it had come early, despite what has happened since then. I alsoincorporated recognition of your remorse. I told you that that would result inan end sentence of two years and five months' imprisonment.[3] You have sought and obtained adjournments since then to be able toput additional material before me. It also allowed you to go through therestorative justice process. I make some allowance for you having gonethrough that process, but not a significant amount, given:(a) I recognised your remorse in the original sentence indicationand attending restorative justice is really nothing more thanthe minimum demonstration of that remorse, and(b) the undertakings or promises that you gave regardingreparation at those restorative justice conferences you aresimply not in a position, it seems, to ever meet. The lossesare extremely real for those you stole from. The effects ofthose losses are extremely real for those people you stolefrom.[4] I have an additional, full report regarding your mental health. Itconfirms many of the things that we spoke about at your sentence indicationhearing. Because I gave you an allowance for that in advance of receivingthat confirmation, there is no further allowance I can give you today for whatis contained in that report. It confirms that you need rehabilitation. You havebegun it. It is not very far advanced, but there may be all sorts of reasons forthat, including COVID of course, over the last 12 months or so. Yourcontinued rehabilitation is going to have to form part of your priorities uponcompletion of your sentence.[5] The more problematic issue for me today is reparation. I am going tomake a reparation award. You will be limited by your means and if the last 18months is anything to go by, we have no idea whether you are going to be ableto pay or will pay what you say that you will pay. I can make the order, but Ido not have a lot of confidence in it. Because of the sentence I am going toimpose, you will not be a in position to pay $500 a week.[6] You will be starting again when your sentence is done so I haveassessed reparation based on $300 a week for a period of five years. Whatthat means is that I make an order for reparation of $25,000 to AucklandSpeedway, payable at $150 a week. I make another award of reparation of$50,000 to the New Lynn Bowling Club, also payable at $150 a week. Thosepayments will begin a month after the completion of your sentence.[7] From the two years five months that I signalled to you, I can makeallowances for those reparation awards. I can make the minor allowance thatI said I could for your engagement or preparedness to at least go to restorativejustice. None of that gets you to the point where you can avoid prison forwhat you did.SubmissionsThe appellant[6] Mr Olsen for the appellant acknowledges that the starting point of four years'imprisonment adopted by the Judge is in range, and takes no issue with the Judge'sstarting point.[7] Mr Olsen notes that the Judge allowed discounts of 25 per cent for theappellant's guilty pleas and a total of 15 per cent for remorse and personal factors. TheJudge then allowed a further three month discount to produce the end sentence of twoyears and two months. That further discount was allowed to take account of thereparation orders by which the Judge ordered the appellant to pay a total of $75,000to the Auckland Speedway and New Lynn Bowling Club, alongside the appellant'spreparedness to go to restorative justice.[8] Mr Olsen submits that while the Judge allowed appropriate discounts for thosefactors, he ought also to have allowed a further discount of 15 per cent to recognisethe appellant's previous good character. Counsel refers to several authorities insupport of his submission that where there is potential for rehabilitation, previous goodcharacter can demonstrate a reduced probability of re-offending, and persons whohave shown themselves to be generally law-abiding citizens of good character areusually entitled to recognition of their good character when they come before thecourts.5[9] Mr Olsen says that although the appellant had a history of two prior periods ofoffending in 2016 and 2019, he was otherwise a person of good character. Atsentencing he showed that he had good prospects of rehabilitation notwithstandingthat he had not yet completed the rehabilitation counselling programme he wasundertaking. Mr Olsen says that it is not clear from the Judge's sentencing noteswhether he considered or allowed any discount for the appellant's good character. Hesays that the Judge certainly considered the appellant's rehabilitative prospects, butapplied no discrete discount for that factor.[10] Mr Olsen accordingly submits that the appellant was entitled to a discount of15 per cent to reflect his previous good character, efforts at rehabilitation prior tosentencing, and his prospects of rehabilitation following sentencing. And he submitsthat the Judge erred by failing to allow that discount.5 See R v Howe [1982] 1 NZLR 618 (CA) at 629; R v Findlay [2007] NZCA 553 at [91]; andFangupo v R [2020] NZCA 484.[11] Mr Olsen submits that had the Judge allowed a 15 per cent discount for theappellant's previous good character and rehabilitation efforts and prospects, the endsentence would be in the range where it could be commuted to a sentence of homedetention. He says that once the appellant has served his sentence he will not be ableto return to working as a real estate agent, and he also notes that the appellant has beenin custody serving his prison sentence since 12 August 2022 when it was imposed bythe District Court Judge.[12] Mr Olsen further says that the time already spent by the appellant in prison hasemphasised his fall from grace and is itself a salutary lesson and punishment. Counselalso refers to the report by the Clinical and Forensic psychologist, Mr GregoryWoodcock as confirming that the appellant has good prospects of rehabilitation andhas a low prospect of re-offending.The respondent[13] Mr Fotherby for the respondent submits that the sentence imposed by the Judgeis not manifestly excessive. The respondent refers to several cases involving broadlysimilar offending and submits that the comparison with those cases demonstrates thatthe end sentence imposed on the appellant is not manifestly excessive.6[14] Mr Fotherby says that the appellant's complaints regarding the sentenceimposed on him are predominantly directed at the weighting the Judge gave toparticular factors for which he allowed discounts, and he submits that they are noterrors and do not amount to grounds for a successful appeal.[15] He submits that the appellant's offending against the New Lynn Bowling Clubinvolved sophisticated planning and deception of the Club and a substantial breach oftrust. The offending against Auckland Speedway was similar.[16] Mr Fotherby says that the breach of trust involved in the appellant's offendingagainst the New Lynn Bowling Club is well described in the victim impact statementby the President of the Club at the time of the offending. The former President says6 R v Varjan CA97/03, 26 June 2003; Blackmore v R [2014] NZCA 109; and Lester v R [2012]NZCA 47.that the appellant was a member of the Club and he proposed a solution to the Club'sfinancial difficulties by offering to arrange a sale of part of the Club property. Theappellant arranged a 'purchaser' for the land at $330,000, and unknown to the Clubonsold it to make a considerable profit for himself. The former President says that asa result of the appellant's actions he was investigated by the Serious Fraud Office, andhe says that his reputation within the bowling community has been ruined as a resultand the appellant's actions have had a long lasting effect on him.[17] Regarding the breach of trust involved in the appellant's offending againstAuckland Speedway, Mr Fotherby notes the victim impact statement by one of theboard members in which the board member explains that because the appellant's latefather had been his best friend, he had looked after the appellant since he was a boyand the appellant had treated him like his father. The board member said that after theappellant had been declared bankrupt, with the prior approval of the Speedway Board,he had arranged employment for him working as a manager at the Speedway. Despitereassuring the other Speedway board members that the appellant could be trusted, theappellant proceeded to steal $101,990 from him. The victim says that his own contractwith Auckland Speedway has not been renewed and he believes that was because ofhis connection with the appellant, and the appellant's offending.[18] In response to the appellant's submission that the Judge ought to have allowedhim a discount for previous good character, Mr Fotherby acknowledges that personswho have shown themselves to be generally law abiding citizens of good character areusually permitted to invoke their previous good record in mitigation of their offending.He submits however that the appellant does not qualify for a good character discount.He says that the appellant does not have an unblemished record as he had his realestate agent's licence cancelled following multiple charges of misconduct in 2016. Henotes that since 2011 the appellant had been charged with misconduct or unsatisfactoryconduct as a licenced real estate agent on eight occasions. Mr Fotherby says thatalthough these were not criminal convictions, their existence demonstrates that theappellant is not a person of previous good character, particularly as those matters relateto his actions as a real estate agent, and his offending against the Bowling Clubinvolved him using knowledge he acquired in that role.Approach on appeal[19] Section 250(2) of the Criminal Procedure Act 2011 provides that the court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[20] In any other case, the court must dismiss the appeal.7[21] The appellate court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles. Whether a sentenceis manifestly excessive is to be examined in terms of the sentence given, rather thanthe process by which that sentence is reached.8Discussion[22] I begin by noting that the Court of Appeal in R v Varjan observed that there isno tariff for this type of offending.9 The Court commented that the circumstances andculpability of dishonesty offending vary widely, and said:[22] Culpability is to be assessed by reference to the circumstances andsuch factors as the nature of the offending, its magnitude and sophistication;the type, circumstances and number of the victims; the motivation for theoffending; the amounts involved; the losses; the period over which theoffending occurred; the seriousness of breaches of trust involved; and theimpact on victims.[23] It is in the assessment of culpability that comparison with other casesis to be undertaken. Matters of mitigation such as reparation, co-operationwith investigators, plea, remorse and personal circumstances necessarily mustbe assessed in each particular case.[23] The appellant's offending against the Bowling Club and Auckland Speedwayin each case involved an egregious breach of trust. As a member of the Bowling Club7 Criminal Procedure Act 2011, s 250(3).8 Ripia v R [2011] NZCA 101 at [15].9 R v Varjan, above n 6.with a background of experience as a real estate agent he was trusted and relied on togive the Club honest and well-informed advice regarding the sale of part of its land.He devised a scheme to purchase the property himself at a significant undervalue, andthen sell it on for a substantial profit. To achieve this dishonest objective heestablished and utilised a fictitious entity to purchase the land from the Club. In thecase of Auckland Speedway, the appellant breached the trust of the man who hadbecome his father figure and who had vouched for him to secure employment atAuckland Speedway. He then stole from his employer by creating a series of falseinvoices.[24] In each case the offending was calculated and premeditated. It was in eachcase carried out over an extended period. The offending resulted in the appellantobtaining approximately $567,000 in total. Apart from the financial losses caused bythe appellant's fraudulent offending, it also caused significant damage and prejudiceto the victims. The appellant's offending was motivated by greed and financial gain.It was clearly very serious offending of its kind.[25] I am satisfied that the sentence of two years and two months imposed on theappellant is within range for this offending. I consider that the appellant's offendingwas more serious than the offending in Blackmore v R where the offending involvedproperty or cash being obtained totalling $16,395.00.10 Mr Blackmore had18 dishonesty charges compared to the appellant's five charges, and the total amountinvolved in the appellant's offending was considerably greater. The Court of Appealin Blackmore observed that:11In cases where significantly larger sums are taken over a period of time by aperson in a position of trust starting points of around three and a half years'imprisonment are common.[26] The cases referred to by the Court of Appeal also included several wherestarting points of four years' imprisonment were adopted where the amounts involvedwere significant.12 And here as I have noted, Mr Olsen for the appellant acknowledges10 Blackmore v R, above n 6.11 At [11] (footnote omitted).12 R v Davis [2009] NZCA 26 ($277,826.99 taken, starting point of four years' imprisonment); Sahibv New Zealand Police [2012] NZHC 3324 ($272,000 taken, starting point of four years'that the starting point of four years' imprisonment adopted by the Judge is in range,and takes no issue with it.[27] Furthermore, the appellant does not take issue with the discounts allowed bythe Judge, and the sole ground of the appeal is that the Judge erred by failing to alsoallow the appellant a discount of around 15 per cent to reflect his previous goodcharacter; his efforts at rehabilitation prior to sentencing; and his prospects ofrehabilitation following sentencing.[28] It is clear from the decision of the Real Estate Agent's Disciplinary Tribunal(the Tribunal) that the appellant has an extensive history of professional misconductin his role as a licensed real estate agent. The particulars of the misconduct are set outin a schedule annexed to the decision of the Tribunal and they include: acting forparties in a conflict of interest situation; holding advertising money in his own personalaccount rather than depositing it in his agency's account; and pressurising purchasersto sign a variation to a sale and purchase agreement. For that professional misconductsubstantial fines were imposed upon him.[29] On 8 August 2016 the appellant admitted charges of misconduct under s 73(c)of the Real Estate Agents Act 2008 (the Act) in relation to three complainants. Thecomplaints were similar in each case and involved the appellant failing to providewritten appraisals, and written marketing plans. The charges alleged the appellant wasguilty of reckless contraventions of the Act, involving repeated breaches of an agent'sfundamental obligations to ensure that clients understood the process and cost ofselling their houses. On 4 November 2016 the Tribunal cancelled his licence as a realestate agent. From the appellant's history of professional misconduct as summarisedin the Tribunal's decision it is clear that the appellant cannot be described as being aperson of good character. He was shown to be unreliable, inaccurate and reckless inhis dealings with members of the public in relation to the selling of real estate.[30] While these are matters of professional discipline and do not involve criminaloffending, they relate to conduct which informs an assessment of his character. It isimprisonment); and Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009($312,467.27 taken, starting point of four years' imprisonment).also relevant to note that the offence of obtaining by deception relating to the fraud onthe Bowling Club was committed in November to December 2016, and the fraud onAuckland Speedway was committed between October to December 2019. It thereforeappears that the appellant had acted dishonestly in his dealings with the Bowling Clubwell before he offended against Auckland Speedway.[31] Accordingly, when he came before the District Court for sentence on 12 August2022, he could not be regarded as being someone of previous good character, and thereis no basis on which a good character discount could be given to him.[32] The appellant's efforts at rehabilitation prior to sentencing and his prospects ofrehabilitation following sentencing were matters which the District Court Judge tookinto account in allowing him a discount with reference to his personal circumstancesand the matters covered in the psychologist's report prepared by Mr Woodcock. TheJudge specifically referred to the appellant having commenced rehabilitativecounselling and commented that his continued rehabilitation would have to be one ofhis priorities on completion of his sentence.13 It is therefore clear that the Judgeconsidered the issue of the appellant's commencement of rehabilitation beforesentencing and his intention to pursue rehabilitation following his sentence.[33] The Judge also allowed the appellant a three month discount from the initialsentence indicated of two years and five months' imprisonment to take account of thereparation orders totalling $75,000 he made and the appellant's willingness to engagein restorative justice, to reach the final sentence of two years and two months'imprisonment.[34] I am accordingly satisfied that the Judge did not err in the course ofdetermining the sentence of two years and two months' imprisonment he imposed onthe appellant, and I further find that he did not err by failing to allow the appellant agood character discount.13 At [4].Result[35] The appeal is dismissed._____________Paul Davison J