Hunter v Police [2012] NZHC 3249 (4 December 2012)

Last Updated: 11 December 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-000013 [2012] NZHC 3249

BETWEEN BRIAN DAMIEN HUNTER Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 December 2012 (at Wellington) Counsel: N J Sainsbury for Appellant

I R Murray for Respondent

Judgment: 4 December 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.30am on the 4th day of December 2012.

_{RESERVED JUDGMENT OF COLLINS J}

Introduction

[1] On 5 June 2012 Mr Hunter was sentenced in the Palmerston North District

Court to:

(1) 12 months’ home detention; and

(2) 100 hours’ community work.

These sentences were imposed after Mr Hunter had previously pleaded guilty to six charges of forgery. Mr Hunter appeals the sentence that was imposed.

HUNTER V NEW ZEALAND POLICE HC PMN CRI-2012-454-000013 [4 December 2012]

[2] Mr Hunter’s appeal was initially prosecuted on the grounds that the sentence imposed by the District Court was “clearly excessive ... or inappropriate”.[1]

However, today, Mr Sainsbury, counsel for Mr Hunter focused on the proposition that the appeals should be allowed because “substantial facts relating to ... the offender’s character or personal history were not before the Court imposing sentence”.[2]

[3] I have resolved to allow the appeal on this second ground of appeal but state from the outset that my conclusion is a finely balanced decision and is based solely on the fact that I have had the benefit of important information that was not available to the sentencing Judge.

The offending

[4] Mr Hunter’s offending was helpfully summarised by the District Court Judge in the following way:[3]

In March 2009 Mr Hunter disclosed to the woman he was in a relationship with that he was having financial problems and because of that was unable to purchase a property. The first forgery was when Mr Hunter forwarded to her an email purportedly from Mr Pratley [a lawyer] which indicated that Mr Pratley had advised Mr Hunter that he could get someone else to purchase a property in their own right, then enter into a private contract with him where Mr Hunter would live in the property and make mortgage payments.

The second fraud was the same day, 10 December 2009, where Mr Hunter sent another email again containing the header and footer from Mr Pratley, purporting to indicate that Mr Pratley had consulted associates and confirmed that his previous advice was sound and the best course of action.

The third fraud was 16 December 2009 where Mr Hunter sent another email, again containing the header and footer from Mr Pratley purporting to indicate that Mr Pratley had also made the offer of being guarantor for Mr Hunter, but he was unable to do so for legal reasons. The email outlined Mr Pratley looking at a property for Mr Hunter and advising that one residence in particular would be perfect for him. It suggested that he should approach his guarantor with the possibility of purchasing the property in joint names. The email also contained information suggesting there may be some chance of his money from the failed investment being freed up.

The fourth forgery, 17 December 2009, [occurred when] Mr Hunter sent an email again to the intended victim containing financial advice purportedly from Mr Pratley relating to the purchase of a property.

The fifth forgery, 6 January 2010, again an email purportedly from Mr Pratley, indicating that Mr Pratley was apologising for cutting short a meeting between the two of them earlier the previous morning. This email contained information indicating that Mr Pratley had a valuation on the property undertaken and that it would be a good investment. The contents of the email contained information which alleged a more personal relationship between Mr Pratley and Mr Hunter which had developed over the course of their business dealings.

The sixth and final forgery was on 11 January 2010, again another email stating that Mr Pratley had to cease acting for Mr Hunter after reviewing his ethical position.

After becoming suspicious about the contents of the latter emails, the victim contacted Mr Pratley who advised that he had not sent any of them and that their content was totally fictitious.

[5] As it happened, the mortgage application was never actually lodged. The scheme was discovered in time.

District Court decision

[6] In his notes on sentencing the District Court Judge observed:

(1) Mr Hunter has a “particularly troubling” list of previous convictions.

He has 162 convictions between 1975 to 2001, which have resulted in, amongst other sentences, six separate terms of imprisonment.

(2) Mr Hunter had letters of support, but it was not clear if his supporters knew of his repeat offending.

(3) Mr Hunter’s alcoholism and post-traumatic stress disorder played

“significant” roles in causing his offending;

(4) A report from Dr Lowe, a psychologist helpfully confirmed the factors that contributed to Mr Hunter’s offending, but suggested that his offending was an error of judgement rather than indicative of a continuing or escalating pattern of offending.

(5) In this case, the relevant purposes of sentencing were denunciation and deterrence.

(6) Mr Hunter’s offending was not sophisticated and his victims did not

suffer direct financial loss.

[7] In imposing the sentence of 12 months’ home detention the District Court Judge acknowledged that “but for Mr Hunter’s mental health [it] would have been a very close call” to impose a sentence of imprisonment as opposed to home detention. His Honour thought however that the sentence of home detention would not be enough to meet the purposes and principles of sentencing in this case. He accordingly imposed an additional sentence of 100 hours’ community work.

Pre-sentence reports

[8] When sentencing Mr Hunter the District Court Judge had the benefit of a pre- sentence report dated 27 June 2011. That report referred to Mr Hunter’s illnesses and concluding that Mr Hunter posed “a moderate risk” of reoffending. The 27 June

2011 pre-sentence report recommended Mr Hunter be sentenced to home detention.

[9] I have had the benefit of a second full pre-sentence report dated 23 November

2012. The focus of that report is on Mr Hunter’s prospects of employment. Mr Hunter has worked on the building of a wireless network system for a company based in Marlborough and has received a proposal that would see him actively involved in the development of that business. A copy of a letter from the company concerned dated 19 November 2012 has been submitted to me.

[10] The author of the second pre-sentence report concludes home detention is not a suitable option because Mr Hunter would not be able to continue his work. The pre-sentence report writer has concluded that the risk of Mr Hunter’s reoffending would increase if he were unable to work. The latest pre-sentence report recommends Mr Hunter come up for sentence if called upon, and that his current sentences of home detention and community work be cancelled.

[11] I have received a further report from Dr Lowe, who has commented on the second pre-sentence report and report from Dr Barry-Walsh, a psychiatrist, whose report I refer to in [12] of this judgment. Dr Lowe endorses the recommendations in the second pre-sentence report.

[12] Dr Barry-Walsh, an experienced psychiatrist, has prepared a very full and helpful report for me. The feature of Dr Barry-Walsh’s report which I have found to be most useful is his explanation that there is a connection between Mr Hunter’s illness and the prospects of him reoffending which is likely to be exacerbated if Mr Hunter is unable to pursue his employment options. Dr Barry-Walsh explains Mr Hunter’s mental health issues are likely to deteriorate if he is not working, and that this in turn is likely to lead to an escalated risk of reoffending.

Analysis

[13] I am particularly concerned about Mr Hunter’s offending. While his offending did not result in any direct loss, his offending was very serious and troubling. He engaged in a premeditated and calculated attempt to deceive others.

[14] Mr Hunter’s offending is even more troubling when viewed in the context of his lengthy history of previous offending. However, I temper my remarks about Mr Hunter’s prior offending by observing that apart from a relapse in 2001 which resulted in him being convicted of using a document to obtain a pecuniary advantage in 2006, Mr Hunter appears not to have offended since 1997.[4]

[15] On the other side of the sentencing fulcrum lies the information that was best explained in Dr Barry-Walsh’s report. This new material strongly suggests that Mr Hunter ought to be sentenced in a way that maximises his employment prospects so as to reduce the prospect of his health deteriorating thereby escalating the risk of him

_reoffending.

(1) I now have the benefit of substantial facts relating to Mr Hunter’s character and personal history that were not before the District Court Judge when he sentenced Mr Hunter.

(2) Mr Hunter should be sentenced in a way that: (a) holds him accountable for his offending;[5]

(b) deters others from offending in a similar way;[6] and

(c) imposes the least restrictive sentence that is appropriate in the circumstances.[7]

(3) These objectives can be achieved by imposing a sentence that is less restrictive than home detention but nevertheless punishes Mr Hunter for his serious offending.

(4) The more appropriate sentence is a sentence of community detention.

I accordingly allow Mr Hunter’s appeal, quash the sentences of home detention and community work and substitute a sentence of six months’ community detention with the following conditions:

(a) that Mr Hunter be curfewed to his current address of 95

Poukawa Road, Poukawa, Hastings for the purposes of serving community detention;

(b) that Mr Hunter be curfewed from 7.00pm to 7.00am daily for seven days per week;

_{(c) that the proposed curfew begin on 10 December 2012 ;}

(d) that the above conditions render Mr Hunter subject to electronic monitoring for a period of 84 hours per week;

(e) that Mr Hunter report to the community probation service in

Hastings by 12 noon on 7 December 2012.

[17] In imposing the sentence of community detention I recognise that Mr Hunter may have to be permitted by the authorities to transfer to an address in Blenheim where he will carry out his sentence of community detention in order for him to be able to continue with his work. I am advised by counsel for the Crown and Mr Hunter that these variations, if required, can be attended to by officers of the

_{Department of Corrections.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Wellington for Respondent

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[1] _{Summary Proceedings Act 1957, s 121(3)(b).}
[2] _{Section 121(3)(b).}
[3] Police v Hunter DC Palmerston North CRI-2011-054-000834, 5 June 2012 at [2]-[8].

[4] I note, however, that Mr Hunter was also convicted of three offences in 2005 of “failing to furnish a required return” for which he was fined a total of $900.
[5] _{Sentencing Act 2002, s 7(1)(a).}
[6] _{Section 7(1)(e).}
[7] Section 8(g).