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Thompson v R [2005] NZCA 242 (19 October 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/04

THE QUEEN



v



PETER JOSEPH THOMPSON

Court: Glazebrook, Baragwanath and Goddard JJ

Counsel: J N Bioletti for Appellant
A Markham for Crown

Judgment (On the papers): 19 October 2005

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS

(Given by Baragwanath J)

[1]	This appeal against sentence has been heard on the papers at the request of the parties. The relevant materials, including written submissions, have been considered by members of the Court who have conferred and agreed upon this judgment.
[2]	On 27 April 2005 this Court dismissed the appellant’s appeal against conviction substituting for the original verdicts convictions of offences of fraudulent inducement of the execution of a valuable security contrary to s 246(1). The sentence appeal was adjourned pending receipt of a reparation report in accordance with s 34 of the Sentencing Act 2004 on:

(a) the financial capacity of the appellant;
(b) the maximum amount that the appellant is likely to be able to pay under a sentence of reparation;
(c) the frequency and magnitude of any payments that should be required under a sentence of reparation.

[3]	We directed the appellant to make a declaration as to his financial capacity in accordance with s 42.
[4]	The appellant applied to the Supreme Court for leave to appeal against his conviction. It was common ground that this Court had no jurisdiction to substitute verdicts under s 386(2) on which he had relied but leave to appeal was declined on the basis that the same result could have been achieved by invoking s 335. The case was remitted to this Court to deal with the outstanding sentence appeal.
[5]	The appellant has declined to make a declaration as to his financial capacity. He has asserted to the probation officer:

(a) he has no income;
(b) he was unable to give details of his debts other than that he believes he owes the tax department about half a million dollars;
(c) neither he nor his wife have assets;
(d) having no money he is unable to offer any reparation.

Submissions

[6]	Counsel for the appellant submits that while the Supreme Court could have substituted by way of amendment convictions on the charges of false pretences pursuant to s 335 it did not do so. Accordingly this matter remains a "special case" under s 386. He submits that there is no sentence in respect of the substituted counts and that this Court cannot impose a substituted sentence under s 386(2) because there is no jurisdiction to do so. He submits in effect that the original sentence is a nullity and ceased to exist when the verdicts were substituted by this Court.
[7]	But the Supreme Court has not set aside this Court’s order under s 386(2) which therefore remains effective. We accordingly turn to consider the merits of the sentence appeal.
[8]	The facts are recounted at [1] - [8] of the judgment of 27 April 2005. The maximum penalty for offences under the substituted charges under s 246(1) is the same as for those under s 229A (seven years imprisonment).
[9]	Counsel for the appellant submitted that the sentence of three years and six months in addition to the order for reparation of $80,230.20 was excessive. He submitted that the appellant’s willingness to make reparation should have been taken into account as a mitigating factor and that in principle a lengthy prison term was incompatible with the need for the appellant to retain the capacity when released to earn the moneys required for reparation.
[10]	In its submission the Crown described the aggravating features of the offending:

(a) four "scams" committed over a period of approximately 12 months involving four separate victims;
(b) total losses in excess of $80,000;
(c) the pre-meditation and moderate sophistication of his methods including the use of magazine advertisements, fraudulent telephone call to Japan; winding back the odometer of the vehicle;
(d) abuse of his position of trust in his brother’s company;
(e) his extensive history of offending including sixty previous convictions for dishonesty beginning in 1984.

[11]	The offending occurred within the term of a four year sentence imposed on 13 February 1998 in respect of similar offending.
[12]	We accept the Crown’s description of the appellant as an inveterate fraudster who lacks insight into his offending and tends to blame others for his actions. The Judge was right to see denunciation and protection of the public as the dominant sentencing considerations.
[13]	The appellant had pleaded guilty to two of the five counts. He pleaded not guilty and was convicted by the jury on another three. We accept the Crown’s submission that there is nothing to be advanced by way of mitigation.
[14]	The three and a half year term is consistent with the decision of this Court in R v Orchard [1991] 1 NZLR 320 and viewed by itself cannot be regarded as excessive.
[15]	Section 12 of the Sentencing Act requires the Court to order reparation unless it is satisfied that it would result in undue hardship or there are other special circumstances. While the phrase "is satisfied" does not import a burden of proof (R v Leitch [1998] 1 NZLR 420) we accept the Crown’s submission that there is an evidential onus on offenders to place before the Court evidence of their financial capacity. In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 at 46 Lord Bingham cited with approval Lord Mansfield’s aphorism in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[16]	The appellant has failed to explain what happened to dishonestly obtained funds, the proceeds of the sale of his house referred to in the pre-sentence report, and to motor vehicles registered in his name. There was no evidence that would allow the Court to be satisfied that the reparation order would result in undue hardship. In the event that it did the District Court has power to remit unpaid reparation under s 88 of the Summary Proceedings Act 1957.
[17]	Unlike a fine which depletes a defendant’s assets a reparation order requires restoration of what is not his. While the position would be different if the appellant were to establish that the fraudulently obtained property or its proceeds are no longer available he has failed to do so. In the circumstances he cannot expect any diminution of his prison sentence by reason of the order for reparation or cancellation or reduction of the amount of the reparation order.
[18]	The appeal against sentence is dismissed.

Solicitors:
Jeremy Bioletti, Auckland for appellant
Crown Law Office, Wellington