HUNTER v R [2021] NZCA 455

HUNTER v R [2021] NZCA 455 [9 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA709/2020[2021] NZCA 455BETWEEN BRIAN DAMIAN HUNTERAppellantAND THE QUEENRespondentCourt: French, Mander and Palmer JJCounsel: C J Tennet for ApplicantB F Fenton for RespondentJudgment:(On the papers)9 September 2021 at 10 amJUDGMENT OF THE COURTApplication for leave to appeal declined.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Brian Hunter pleaded guilty to one charge of causing loss by deception and onecharge of theft following an indicated sentence of seven months' home detentionprovided by Judge Hastings in the District Court at Wellington.1 He was sentenced tosix months' community detention, 100 hours' community work, and reparation in the1 Crimes Act 1961, ss 240(1)(d) and s 241(a) ― maximum penalty of seven years' imprisonment;and sections 219 and 223(b) ― maximum penalty of seven years' imprisonment. An adjustmentto the sentence, however, was necessary because Mr Hunter's sentence of community detentionhad not been suspended when he filed his appeal to the High Court. Clark J ordered the periodbetween the appeal being filed and when the Department of Corrections realised its mistake(21 August to 29 September 2020) be deducted from the sentence of community detention.amount of $3,000.2 His appeals to the High Court against both conviction andsentence were dismissed by Clark J.3[2] Mr Hunter now seeks leave to appeal to this Court on the basis the sentencewas manifestly excessive and inappropriate, and that he should have been dischargedwithout conviction.Background[3] The charges arose from Mr Hunter's contact with a British-based firm thatspecialised in managing network services. In March 2007, Mr Hunter falselyportrayed himself as a consultant working with the Ministry of Education who hadresponsibility for improving network connections within New Zealand schools.He offered to act as the British firm's New Zealand agent.[4] Believing that Mr Hunter was a genuine distributor and installer ofIT equipment and networks to the New Zealand education system, the firm suppliedMr Hunter with electronics equipment on the understanding it would be used for a trialin schools and lead to a nationwide roll-out contract. These devices were worth some$30,000. Mr Hunter also advised the British firm that he was expecting to obtain amulti-million-dollar contract to install IT equipment in schools. This led the companyto increase its support and to dedicate a team to assist with his requests.[5] This pretence appears to have continued for a number of years. In January2011, the British firm advised Mr Hunter that it was to meet a Ministry of Educationrepresentative at an exhibition in the United Kingdom. However, Mr Hunter told thefirm this person could not be trusted. As a result, it declined to meet with therepresentative. In September 2012, the firm received an anonymous email advisingthat Mr Hunter was "a convicted fraudster". When it sought an explanation fromMr Hunter regarding this allegation, he did not respond or communicate further withthe firm.2 R v Hunter [2020] NZDC 16103 [Sentencing notes] at [25].3 Hunter v R [2020] NZHC 3209 [High Court judgment].[6] None of the equipment was returned and, in November 2012, Mr Hunter soldan item supplied by the British firm (a cache box) for $3,000. In July 2015, policeexecuted a search warrant at Mr Hunter's residence where a number of devicesbelonging to the British firm (five cache boxes) were located. Other items of thesupplied equipment (two cache boxes and two servers) were not recovered.Grounds of the proposed second appeal[7] Mr Hunter seeks to advance several grounds on his proposed appeal:(a) The District Court Judge, in declining to discharge him withoutconviction, erred in his assessment of the consequences of convictionand "the question of proportionality".(b) Alternatively, the sentence of community detention was inappropriateand manifestly excessive. A number of arguments are advancedregarding the sentence, including that the starting point adopted by theJudge was too high and that an uplift for previous offending should nothave been made because of a "break" in Mr Hunter's offending history.Analysis of the proposed appeal[8] In order to be granted leave to bring a second appeal, Mr Hunter must satisfyus that his appeal involves a matter of general or public importance,4 or that amiscarriage of justice may have occurred, or may occur, unless his appeal is heard.5The threshold for leave is high.6 We do not consider the matters raised by Mr Hunterin support of a second appeal, either individually or collectively, satisfy the high testfor leave.The application for discharge[9] Mr Tennet, on behalf of Mr Hunter, complains that illegitimate information hadbeen raised in front of the District Court at prior hearings before Mr Hunter's4 Criminal Procedure Act 2011, ss 237(2)(a) and 253(3)(a).5 Sections 237(2)(b) and 253(3)(b).6 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.sentencing,7 that the Crown prosecutor had a conflict of interest, and that Mr Huntersuffered adverse media publicity regarding his past convictions for fraud after hissentencing.[10] The relevance of these complaints to Judge Hastings' assessment of the meritsof discharging Mr Hunter without conviction is not entirely clear. They areinsufficient to support his contention the Judge erred in his assessment of theconsequences of convicting Mr Hunter, or his conclusion that such consequenceswould not be out of all proportion to the gravity of the offending.8 There is no basisupon which to suggest Judge Hastings took any irrelevant matters into account indismissing Mr Hunter's application for discharge. Nor is there any nexus between thecomplaint relating to the Crown being allegedly conflicted and the Judge's approachto the sentencing exercise. To the extent there was negative media coverage ofMr Hunter's fraudulent conduct, it was the expected product of his offending and pastrecord.[11] We accept the Crown's submission there was never any realistic prospect ofMr Hunter being discharged without conviction. When regard is had to his history ofdishonesty, and the nature and seriousness of the fraudulent offending that continuedover some five years and involved a loss of $37,000, the outcome of his application tobe discharged was entirely predictable. Insofar as Mr Hunter complains of delays inthe processing of his case, that feature could not to any material degree bear on thequestion of discharge given the circumstances of his offending, and was properly takeninto account by Judge Hastings when setting the sentence imposed.9[12] It follows from these findings that Mr Hunter has failed to identify either amatter of general or public importance that would justify a second appeal, or that anymiscarriage of justice has arisen or may arise from the District Court's refusal todischarge him without conviction.7 These matters include that Department of Corrections staff were "not being safe" with Mr Hunterand that there was an extant minor charge that was later withdrawn.8 Sentencing notes, above n 2, at [12]–[13]; and Sentencing Act 2002, ss 106–107.9 At [21(c)].The sentence[13] We now turn to the actual sentence imposed. Mr Tennet accepts that thegrounds he sought to raise were the same as those put before the High Court. WhileMr Tennet seeks to argue that the sentencing decisions relied upon by Judge Hastingswere distinguishable, it is not apparent they involved other than broadly comparableoffending,10 nor that Clark J's conclusion that the starting point was "clearlyappropriate" was in error.11 We consider the six-month uplift for Mr Hunter's criminalhistory was properly available and note that Judge Hastings in setting that upliftexpressly recognised that Mr Hunter had been free of convictions for some eightyears.12[14] An appeal court's focus must be on the final sentence imposed.13 We agreewith Clark J's observations that the discounts afforded to Mr Hunter, which approach50 per cent, after entering pleas on the first day of his trial were generous.14The sentence finally imposed was more favourable than that initially indicated by theDistrict Court and reflected that which had been advocated by Mr Hunter's counsel onhis behalf.[15] There is nothing on the face of Judge Hastings' sentencing remarks to indicatehe failed to adequately take into account a psychiatric report filed in support ofMr Hunter, as submitted by Mr Tennet. To the contrary, the contents of that reportresulted in a six-month discount.15 Nor is there anything to suggest that it wassupplanted by an alcohol and drug report which is not referred to in Judge Hastings'sentencing notes. Similarly, a submission that the three-month discount inacknowledgement of Mr Hunter engaging in, although not completing, a restorativejustice process was inadequate is without merit.[16] The sentence imposed by Judge Hastings in the District Court and thesubsequent judgment of the High Court on appeal involved the application of orthodox10 Haereroa v Police [2019] NZHC 318; Anderton v Police [2018] NZHC 437; and Gobey v Police[2018] NZHC 1555.11 High Court judgment, above n 3, at [28].12 Sentencing notes, above n 2, at [21(a)].13 See Vaipo v R [2009] NZCA 206 at [17].14 High Court judgment, above n 3, at [28].15 Sentencing notes, above n 2, at [21(b)].sentencing principles. The proposed second appeal does not give rise to any importantquestion of law which would have any wider application beyond the circumstances ofthis particular case.16 Nor is there any discernible basis upon which it can berealistically argued that Mr Hunter has suffered a miscarriage of justice as a result ofthe sentence imposed.[17] The high threshold for granting leave for a second-tier review of the sentencehas not been satisfied. It follows that Mr Hunter's application for leave to appealagainst his sentence must fail.Result[18] The application for leave to appeal is declined.Directions for resumption of suspended sentence[19] Mr Hunter's sentence of community detention and community work iscurrently suspended. It will resume from the date of this judgment, being the date onwhich the application for leave to appeal is refused.17 In accordance with s 346(2)(a)of the Criminal Procedure Act, the Registrar is to notify the controlling officer of theprobation area in which the sentence is to be served of the date on which the sentenceis to resume and, because Mr Hunter was not present in Court at the time hisapplication for leave to bring a second appeal was disposed of, the Registrar must alsonotify him of that date.18[20] Mr Hunter is required to report for his sentence in accordance with the samereporting requirements that previously applied to him after the sentence was originallyimposed by the District Court.19 However, Mr Hunter is presently trespassed fromCommunity Corrections sites and alternative directions are required. Accordingly, heis ordered to make telephone contact with his probation officer not later than 48 hoursfrom the date of this judgment. The Department of Corrections may then liaise with16 See McAllister v R, above n 6, at [36].17 Criminal Procedure Act, s 345(2)(b).18 Section 346(2)(b).19 Section 347(2). Those reporting requirements are specified in s 69E(1)(b) of the Sentencing Act.him to attend at his residence for the purpose of recommencing electronic monitoringwithin a further two working days.Solicitors:Crown Law Office, Wellington for Respondent