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High Court of New Zealand Decisions |
Last Updated: 7 January 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2012-485-000108
CRI-2012-485-000109 [2012] NZHC 3541
BETWEEN BRENT RICHARD AYTON Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 18 December 2012
Counsel: J Murdoch for Appellant
E M Light for Respondent
Judgment: 19 December 2012
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 19th day of December 2012.
RESERVED JUDGMENT OF COLLINS J
Introduction
[1] On 20 September 2012 Mr Ayton pleaded guilty to: (1) 32 charges of dishonestly using a document; (2) seven charges of theft; and
(3) two charges of receiving.
These charges had been laid in early October 2011.
AYTON V NEW ZEALAND POLICE HC WN CRI-2012-485-000108 [19 December 2012]
[2] On 14 November 2012 Mr Ayton was sentenced by Judge S E Thomas to
21 months’ imprisonment. Mr Ayton appeals the sentence that was imposed. He submits that he should have been sentenced to home detention rather than imprisonment.
[3] The appeal is governed by s 121(3)(b) of the Summary Proceedings Act 1957 and therefore the appeal should only be allowed if I am satisfied that the sentence imposed by the District Court Judge was “clearly excessive or inadequate or inappropriate” or if I am satisfied that substantial facts relating to the offence or Mr Ayton were not before the District Court Judge.
The offending
[4] Mr Ayton’s offending relates to:
(1) a period when he was the building manager of a large apartment complex in Wellington; and
(2) the period after he was dismissed from his position as the apartment complex manager.
Offending when apartment complex manager
[5] When employed as an apartment complex manager Mr Ayton:
(1) created a fictional maintenance company called AA Electrical. From
11 August 2009 to 13 July 2010 he paid out over $84,000 of the apartment complex’s money for work said to have been done to an account purported to be operated by AA Electrical. The account was in fact owned by Mr Ayton’s partner, although she had no knowledge of his fraud. The management committee at the apartment complex eventually fired Mr Ayton and conducted a review of his spending. The review found that only a very small proportion of the work
charged was actually done. Approximately $36,751 worth of work was definitely not undertaken. The rest was unable to be verified.
(2) misused an account dedicated for the apartment complex’s purchases of plumbing supplies. In November 2009 Mr Ayton went to a hardware outlet where he purchased a six piece toolkit worth
$2,137.50 on credit with the apartment complex’s account. He then pawned off the toolkit at Superloans for $500. He failed to repay that loan which in turn caused Superloans to sell the toolkit. Mr Ayton then failed to pay the hardware outlet for the original purchase price causing the company to sue the guarantors of the apartment complex’s account for the balance. The apartment complex manager sought $2,306.72 reparation.
(3) failed to report two burglaries at the apartments. The first occurred in July 2009. A TV valued at $1,000 was stolen. Somehow Mr Ayton came into possession of the TV and pawned it for $250. Mr Ayton gave an undertaking he would report the burglary to the police but he did not do so. The second burglary occurred in January 2010. A computer and accessories valued at over $1,300 were stolen. Again, somehow, Mr Ayton came to be in possession of these items and pawned them off.
Offending post-apartment complex offending
[6] After Mr Ayton was dismissed from the apartment complex he committed the following offences:
(1) He offended against KB, who engaged Mr Ayton to perform building work on his property in August 2010. Mr Ayton stole a router, jigsaw and reciprocating saw from Mr B and pawned them off for cash.
(2) He offended against CM, who engaged Mr Ayton to paint his house in April 2011. Mr Ayton stole a nail gun and other tools from CM’s garage and pawned them off.
(3) He offended against Fix It Building Services, for whom he worked during July to September 2011. Mr Ayton used the company order book to purchase a nail gun. He also stole a reciprocating saw.
The decision of Judge Thomas
[7] The District Court Judge identified the relevant aggravating factors as being: (1) the amount of money involved;
(2) the breach of trust and vulnerability of the victims; (3) Mr Ayton’s premeditation; and
(4) the time span of the offending (over two years).
Her Honour took a starting point of 18 months’ imprisonment for the apartment complex related offending, then uplifted that by eight months to reflect Mr Ayton’s subsequent offending.
[8] Judge Thomas then noted that, while Mr Ayton had previous convictions for dishonesty offences, these were for contemporaneous offending so did not warrant an uplift. Equally, however, the Judge, relying on the presentence report and the lack of any money saved by Mr Ayton found that there was no evidence Mr Ayton had truly shown remorse as required by the Sentencing Act 2002. Her Honour thought that Mr Ayton’s letter to the Court was too little, too late. Her Honour did, however, give Mr Ayton a 20 per cent discount for his guilty pleas.
[9] Judge Thomas considered whether home detention should be imposed. She declined to do so, finding that home detention would not meet the purposes and principles of sentencing in this case, the most relevant of which were denunciation
and deterrence. Judge Thomas acknowledged that, on the one hand, home detention would be more conducive to Mr Ayton being able to make reparation payments and that his imprisonment would have an adverse effect on Mr Ayton’s family. However, her Honour found these factors were outweighed by the consideration that this was:1
serious offending over a period of about two years, [involving] egregarious breaches of trust, [and] harm to the victims, financial and emotional.
Summary of appellant’s submissions
[10] In her very helpful and thorough submissions Ms Murdoch suggested that
Judge Thomas erred in five material ways:
(1) The District Court Judge did not fully and properly evaluate the viability of imposing a sentence of home detention;
(2) The District Court Judge did not fully evaluate Mr Ayton’s offer to
pay reparation;
(3) The District Court Judge was unduly swayed by the emotional contents of the victim impact statements;
(4) The District Court Judge placed insufficient weight upon Mr Ayton’s
personal circumstances; and
(5) The District Court Judge did not give Mr Ayton sufficient credit for his remorse.
Home detention
[11] Home detention may be imposed pursuant to s 15A of the Sentencing Act
2002, which provides:
1 Police v Ayton DC Wellington CRI-2012-085-5574, 14 November 2012 at [42].
15A Sentence of home detention
(1) If a court is lawfully entitled under this or any other enactment to impose a sentence of home detention, it may impose a sentence of home detention only if—
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b) the court would otherwise sentence the offender to a short-term sentence of imprisonment.
(2) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of home detention in relation to a particular offence; or
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[12] The starting point for any analysis of whether home detention should be substituted for a short term sentence of imprisonment must be s 16 of the Sentencing Act 2002, which provides:
16 Sentence of imprisonment
(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
(2) The court must not impose a sentence of imprisonment unless it is satisfied that,—
(a) a sentence is being imposed for all or any of the purposes in section 7(1)(a) to (c), (e), (f), or (g); and
(b) those purposes cannot be achieved by a sentence other than imprisonment; and
(c) no other sentence would be consistent with the application of the principles in section 8 to the particular case.
(3) This section is subject to any provision in this or any other enactment that—
(a) provides a presumption in favour of or against imposing a sentence of imprisonment in relation to a particular offence; or
(b) requires a court to impose a sentence of imprisonment in relation to a particular offence.
[13] The leading Court of Appeal case on the substitution of home detention is R v
Hill.2 In that case the Court observed:3
The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment.
[14] The Court also noted:4
The explanatory note [of the Criminal Justice Reform Bill which introduced home detention as a sentencing option] at p 5 identifie[d] the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”.
and reaffirmed:5
... the home detention provisions sit within the general context of the Sentencing Act. Accordingly, a sentence of home detention must be imposed in a way that is consistent with the purposes and principles of sentencing as set out in the Act (and in any other relevant legislation).
[15] The Court of Appeal addressed “the imprisonment or home detention” question specifically in the context of fraud in Ransom v R.6 The Court summarised:7
In R v D (CA253/2008), this Court considered the approach that should be taken in determining whether imprisonment should be imposed in preference to home detention. In doing so, the hierarchy of sentences set out in s 10A of the Sentencing Act 2002, the sentencing principle of imposing the least restrictive outcome appropriate in the circumstances, in accordance with the hierarchy of sentences, and the terms of s 16 of the Sentencing Act, in relation to the circumstances in which imprisonment might be imposed, were considered.
2 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
3 At [33].
4 At [33].
5 At [34]-[35].
6 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
7 At [22].
[16] Subsequently, in Manikpersadh v R8 the Court of Appeal explained the test which an appellate court must be satisfied of before intervening with a sentencing Judge’s decision to impose a sentence of imprisonment as opposed to home detention. The Court of Appeal cited with approval its earlier comment in James v R9 as to the appropriate approach to appeals against a refusal to impose home
detention:10
... an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the Judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[17] The Court of Appeal in Manikpersadh agreed with the assessment that:11
... the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing, as in other sentencing appeals to this Court, on the identification of error, if any, in the court below”.
Should home detention have been imposed?
[18] In my assessment, Judge Thomas was justified in concluding that imprisonment was the least restrictive sentence that could be imposed in the circumstances of this case. I do not think this is an instance where society’s interests would be better served by Mr Ayton serving a sentence of home detention. My reasons for reaching this conclusion mirror those of Judge Thomas, namely:
(1) the magnitude of the offending. Mr Ayton’s offending was serious
and involved approximately $40,000 worth of property/money.
8 Manikpersadh v R [2011] NZCA 452.
9 James v R [2010] NZCA 206.
10 At [17].
11 Manikpersadh v R [2011] NZCA 452 at [12].
(2) Mr Ayton’s offending occurred over a long time span.
(3) Mr Ayton’s offending was clearly premeditated. His offending, particularly when he was the apartment complex manager, involved a calculated intention to defraud.
(4) The victim impact statements from a representative of the apartment complex and some of those against whom Mr Ayton offended after he ceased working for the apartment complex, show that those against whom he offended feel deeply aggrieved and distressed at his behaviour.
[19] For these reasons I would have reached the same conclusion as the District Court Judge. I can find no appealable error in the approach which the District Court Judge took in relation to this aspect of the sentencing of Mr Ayton. This outcome is also consistent with similar cases.12
Reparation
[20] The transcript of the sentencing hearing reveals that Mr Ayton appears not to have fully appreciated the importance that reparation could have had on sentencing until the day of sentencing. It would seem that during the sentencing hearing an offer to pay $8,000 was made, coupled with an offer to pay reparation at a rate of
$250 per week from an available disposable income of $350 per week.
[21] Today, Ms Murdoch advises that $4,000 is available for immediate payment and that reparation payments could only be made at the rate of $100 per week provided Mr Ayton secures employment. There is a possibility of Mr Ayton being employed at a Hutt Valley firewood/landscaping business at the end of January 2013.
[22] It appears her Honour requested that the victims’ views on reparation be
canvassed during the sentencing process.
[23] Ultimately, her Honour ordered reparation. Her Honour noted that it was “going to be to a certain extent dependent upon [Mr Ayton’s] situation on release from prison”. Her Honour recognised that Mr Ayton was a person of some ability and that he should be able to make reparation payments. Her Honour accepted that a sentence of imprisonment, and the loss of Mr Ayton’s job was going to have an impact on whether he could get employment. It was for that reason that her Honour reduced the total reparation to 80 per cent of the total amount involved.
Should the District Court Judge have dealt with reparation differently?
[24] In my assessment, her Honour did carefully consider the issue of reparation and factored that into her decision to impose a sentence of imprisonment on Mr Ayton. Judge Thomas took into account Mr Ayton’s ability to pay reparation from his release from prison. If anything, the issue in relation to reparation appears to have moved against Mr Ayton’s position since Mr Ayton was sentenced in the District Court. His offer to pay reparation today is a significantly lower offer than was made at the time of his sentencing in the District Court.
[25] I can find no error of principle in the approach taken by the District Court Judge in relation to reparation. She took into account all relevant considerations and I cannot conclude that her decision was clearly excessive, inadequate or inappropriate. The order that Mr Ayton repay 80 per cent of the amount he defrauded from his victims involved her Honour carefully balancing the magnitude of Mr Ayton’s offending against his likely ability to be able to repay his victims. Her Honour’s approach is one that I endorse.
Victim impact statements
[26] It is quite apparent that the victim impact statements are written in powerful language. The victims clearly feel very aggrieved by Mr Ayton’s conduct.
[27] Ms Murdoch submitted that her Honour, notwithstanding comments made in her sentencing notes, allowed herself to be unduly influenced by the emotion in the victim impact statements.
Was the District Court Judge unduly swayed by the victim impact reports?
[28] The District Court Judge was at pains to point out that she came to her view on the appropriate sentence to impose upon Mr Ayton “uninfluenced by the emotion in [the] victim impact statements”.
[29] Judge Thomas also pointed out that she reached a “preliminary assessment”
on the sentence that was to be imposed before reading any victim impact statements.
[30] Her Honour re-emphasised this point:13
[Mr Ayton’s counsel] urges me not to be swayed by the obvious emotion of the victims today, but as I say, I had come to a preliminary view prior to hearing from them in any event, but most importantly, I must take into account any information provided as to the effect on them. At the end of the day, as I indicated prior to the lunch adjournment when I asked for their views on reparation to be canvassed, the decision is mine, taking into account the purposes and principles of sentencing.
[31] Ms Murdoch accepts that the District Court Judge was required by s 8(f) of the Sentencing Act 2002 to take into account the victims’ views.
[32] Notwithstanding Ms Murdoch’s submissions, I am not persuaded that the District Court Judge erred by placing too much weight on the victims’ views. Her Honour specifically said that she did not fall into the trap of being persuaded to impose a sentence that was designed to appease the victims.
Mr Ayton’s personal circumstances
[33] Ms Murdoch submitted that insufficient weight was given by the District Court Judge to Mr Ayton’s personal circumstances. Ms Murdoch explained that three of Mr Ayton’s children are dependent on him and he is also the stepfather to two of his partner’s children who are also dependent on him. The level of their dependence was illustrated by the letter written by Kennedy Craig to the District Court Judge.
Did the District Court Judge pay proper regard to Mr Ayton’s personal
circumstances?
[34] In her sentencing notes the District Court Judge specifically refers to the letter written by Mr Ayton’s 15 year old stepdaughter. The District Court Judge also referred to the pre-sentence report which explains Mr Ayton’s personal circumstances.
[35] Again, notwithstanding Ms Murdoch’s submissions, I cannot identify any error by the District Court Judge in relation to this aspect of her sentencing of Mr Ayton.
Remorse
[36] Ms Murdoch also submitted that the District Court Judge did not place
sufficient weight on Mr Ayton’s remorse.
Did the District Court Judge fail to properly consider issues of remorse?
[37] A discount may have been available for genuine remorse. The District Court Judge, however, assessed the genuineness of Mr Ayton’s remorse and concluded that Mr Ayton’s letter of apology was not sufficient to justify the District Court Judge allowing a discount for remorse. Her Honour said:14
The question of remorse needs to be considered by me. The writer of the pre-sentence report did not consider that you were remorseful, thinking that you minimised your role in all of this and seemed to try and place blame on others. You have written me a letter of apology and I accept that. However, in my assessment, that needs to be treated with a pinch of salt. In my assessment that letter is self-serving, written for the purposes of sentencing. I say that because the charges came before the Court in December 2011 so it has been almost a year. You have been working full-time and yet you come to Court today with no money saved so that you could make an offer of part payment of any reparation. The offer of $8000 that came from your partner was made only about half way through the sentencing exercise. So, for that reason, I do not give you any credit for your remorse.
[38] I find myself again reaching the conclusion that the approach taken by the
District Court Judge in relation to this issue was correct.
Conclusion
[39] The sentence imposed by the District Court Judge was a sentence that was available in the circumstances of this case. I am not satisfied that the sentence was “clearly excessive or inadequate or inappropriate”. Nor am I satisfied that substantial facts relating to the offence or Mr Ayton were not before the District Court when sentence was imposed.
[40] Before reaching a final conclusion I have paused and reflected on whether or not the sentence imposed by the District Court Judge was a fair and proportionate response to his offending and if it was a sentence that reflected the purposes and principles set out in the Sentencing Act 2002. I have reached the conclusion that the sentence met all of the key requirements of the Sentencing Act 2002 and should not be interfered with. In particular, the sentence appropriately:
(1) holds Mr Ayton accountable;15
(2) promotes a sense of responsibility for the harm done by Mr Ayton;16
(3) provides for the interests of Mr Ayton’s victims;17
(4) provides reparation for the harm done;18
(5) denounces Mr Ayton’s conduct;19
(6) deters others from offending in a similar way;20 and
15 Sentencing Act 2002, s 7(1)(a).
16 Section 7(1)(b).
17 Section 7(1)(c).
18 Section 7(1)(d).
19 Section 7(1)(e).
20 Section 7(1)(f).
(7) imposes the least restrictive outcome that can be imposed in the circumstances.21
[41] The appeal against sentence is dismissed.
D B Collins J
Solicitors:
Public Defence Service, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
21 Section 8(g).
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URL: http://www.nzlii.org/nz/cases/NZHC/2012/3541.html