WILLIAMSON (AKA PALMER) v POLICE [2016] NZHC 520

WILLIAMSON (AKA PALMER) v POLICE [2016] NZHC 520 [23 March 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000118[2016] NZHC 520BETWEEN BRETT WILLIAMSON(AKA) BRIAN MAX PALMERAppellantAND NEW ZEALAND POLICERespondentHearing: 15 March 2016Appearances: R Peters for the AppellantA C Trinder for the PoliceJudgment: 23 March 2016JUDGMENT OF NATION JIntroduction[1] Mr Williamson appeals against a sentence of two years seven months'imprisonment on three charges of obtaining by deception and two charges of attempting to obtain by deception.1[2] The charges arose out of offending between 15 and 17 December 2014, when Mr Williamson falsely purported to be a representative of Downer Construction at several machinery stores in Christchurch. On three separate occasions, he placed orders for, and took possession of, machinery (generators and a water blaster) under fictitious order numbers, having no intention to pay for the items. The orders were for four different items with a total value of $8,890. On two further and separate occasions, he attempted to obtain three generators valued at $2,500 each. The total offending was thus to obtain or attempt to obtain plant worth $16,390.1 New Zealand Police v Williamson (aka) Palmer [2015] NZDC 2348 per Judge Couch.[3] As this sentence was imposed on 12 February 2015, Mr Williamson also applies for leave to appeal out of time.Approach on appeal[4] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposedwas "manifestly excessive".4 As has been stated:5The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.Leave to appeal out of time[5] Mr Peters, for Mr Williamson, does not advance any particular grounds for granting leave to appeal out of time. No reason is provided for the delay. Mr Peters simply asks that such leave be granted on the basis that there are valid grounds for the appeal being considered.[6] As the enactment conferring the right of appeal, the Criminal Procedure Act permits such an extension.6 However, the "touchstone" for granting such anapplication is the interests of justice in the particular case.7 Such applications for leave routinely reduce to the reasons for the delay and the merits of the proposed appeal.8 It is for the appellant to provide sufficient information to satisfy the court that granting leave is in the interests of justice.92 Criminal Procedure Act 2011, s 250(2).3 Section 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 Larkin v Ministry of Social Development [2015] NZHC 680, at [26] per Toogood J.6 High Court Rules, r 20.4(3)(a); Criminal Procedure Act 2011, s 220(3).7 R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA) at 587, 336. See 589, 338 for factors of relevance to the overall balancing test.8 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].9 R v Davis [2007] NZCA 577 at [13].[7] The Crown does not oppose leave to file out of time, as the appeal is arguable and there is no prejudice to the Crown. In the circumstances, it was appropriate to grant leave and I did so at the hearing on 15 March 2016.Judge Couch's approach[8] Judge Couch considered Mr Williamson's serious history of criminaloffending, noting in particular his 395 previous convictions for dishonesty offending. The Judge took into account Mr Williamson's previous convictions in determining the starting point rather than imposing a separate uplift. His Honour deemed the conventional sentencing approach of R v Taueki was "not really practical" whensentencing in a situation like this.10[9] In assessing the gravity of this offending, Judge Couch identified the following aggravating factors: Mr Williamson's "brazen deception to obtain very valuable goods"; the non-recovery of the goods, which meant a total loss to the victims; and Mr Williamson's clear premeditation.11 His Honour therefore adopted astarting point of three years eight months' imprisonment. This was reduced by 13 months to reflect Mr Williamson's prompt guilty pleas and remorse (despite the Judge's suspicion that this was "really more self-pity"), reaching an end sentence of two years seven months' imprisonment. Judge Couch also made reparation orders, which are not challenged on appeal.[10] It appears the Judge did not have the benefit of submissions referring to relevant judgments in the way that has been of assistance to me.Appellant's submissions[11] Mr Peters accepts that the credits allowed Mr Williamson were fair (11 months for prompt guilty pleas and two months for remorse) but submits that the starting point was too high, even allowing for an uplift for previous convictions. He cited no authority for this submission but, before me, submitted that judgments10 New Zealand Police v Williamson (aka) Palmer, above n 1, at [5], citing R v Taueki [2005] 3 NZLR 372 (CA).11 At [5]-[6].referred to by the Crown were consistent with his submission. Acceptingimprisonment as "the only realistic sentencing option", Mr Peters submitted that the end sentence imposed was manifestly excessive in the circumstances.Double jeopardy[12] In his Notice of General Appeal, Mr Williamson argues that the sentenceamounts to "double jeopardy" as he was "given an uplift for non return of stolen property plus $9,000 reparation".[13] Mr Hawes, for the Crown, notes that the Court of Appeal in R v Varjanclarifies that the payment of reparation is a mitigating factor routinely considered in offending involving financial dishonesty.12 However, as Mr Williamson had not paid reparation prior to sentencing (nor since), Judge Couch was entitled not to regard the order for reparation as a mitigating factor.Submissions for the Crown[14] In written submissions for the Crown, Mr Hawes assisted the Court by referring to the general principles outlined in R v Varjan for assessing culpability in fraud cases, acknowledging there is no tariff case for this type of offending.13 He referred the Court to a number of cases which provided some guidance as to the range of sentences that had been imposed for offending of this nature.14[15] Referring to those cases, Mr Hawes submitted that two years' imprisonmentwould have been at the top of the available range as a starting point for the offending. He suggested 12 months' imprisonment by way of uplift would havebeen appropriate having regard to his previous record of criminal dishonesty offending. He submitted that a 30 per cent discount for guilty pleas and remorse wasgenerous given the strength of the Police case and the defendant's own admissions.12 R v Varjan CA97/03, 26 June 2003 at [23].13 At [21]-[22].14 Rako v R [2015] NZCA 463; Chapman v Police [2015] NZHC 498; Blackmore v R [2014] NZCA 109; Costello v R [2015] NZCA 512; Bennett v Police [2015] NZHC 2592; Turner v R[2014] NZCA 454.[16] Mr Hawes thus accepted that the Court could be justified in concluding that the sentence imposed was outside the available range. A starting point of two yearsfor the offending, with an uplift of one year on account of Mr Palmer's criminaloffending, would result in a sentence of three years before a 25 per cent for guilty pleas and remorse. On that approach, the Crown was accepting that an end sentence of two years and three months would have been appropriate.Discussion[17] In R v Varjan, the Court of Appeal stated:15[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.[18] In Turner v R, a starting point of 18 months' imprisonment was adopted inrespect of five charges of dishonestly using a document with an uplift of three months for 14 previous dishonesty convictions.16 In that case, the appellant bullied a 72 year old man suffering from a brain tumour into giving the appellant his bankcard. The appellant made a total of 19 successful transactions over four days, amounting to approximately $5,000. The sentence was upheld in the Court of Appeal. In a later case, the Court of Appeal commented the starting point in Turnercould have been higher.17[19] In Chapman v Police, the appellant pleaded guilty to 17 charges of dishonesty and two breaches of bail.18 Eight of the obtaining by deception charges were laid in respect of the appellant going to a number of suppliers of merchandise, such as RDI and Repco, and charging goods to the accounts of previous employers over a period of several weeks. The amount obtained was approximately $35,000. The appellant had a history of relevant offending. The sentencing Judge adopted astarting point of two years and six months' imprisonment in respect of these eight15 R v Varjan, above n 12.16 Turner v R, above n 14.17 Rako v R, above n 14.18 Chapman v Police, above n 14.obtaining charges, which was added cumulatively to the starting points adopted for other offences. On appeal, Clifford J held that the starting points adopted were not manifestly excessive but made adjustments on the basis of totality.[20] In the case of Blackmore v R, the appellant was sentenced in the District Court to five years and seven months (with a MPI) having pleaded guilty to 18 charges of dishonesty offending.19 He obtained $62,000 of property or cash from 17 victims (including one described as particularly vulnerable) over a nine month period. Some of the property was recovered and the total loss was $16,395. The appellant had over 300 previous convictions for dishonesty-related offending. The offending occurred while on parole and following a recall to prison. The Court of Appeal considered the starting point to be too high and held a starting point of three years and six months was appropriate. Twelve months was added by way of uplift for his significant history of offending.[21] I agree the aggravating factors associated with this offending involved the brazen nature of the deception, the premeditation and the commercial nature of the frauds. Because the goods were not found very soon after the offending, it was reasonable to draw the inference that the goods were obtained to on-sell quickly. Given the value of the goods obtained should be taken into account in assessing the seriousness of the fraud, it would not be appropriate to treat the non-recovery of the goods as a further aggravating feature.[22] I consider an appropriate starting point for the offending would have beentwo years' imprisonment. An uplift was appropriate having regard to Mr Palmer'sextensive history of previous criminal offending for offences of dishonesty, many similar to the offending for which he was being sentenced. As with recidivist burglars, it also makes the offending itself more serious (the approach Judge Couch took). This history meant there was a greater need for deterrence and protection of the public, including businesses. Mr Palmer has been assessed as being at high risk of reoffending. His criminal record justifies that assessment, especially so having regard to the way in which his use of alcohol and gambling has contributed to his19 Blackmore v R, above n 14.offending. I consider an uplift of 12 months would have been appropriate on account of these factors. That leads to a starting point of three years' imprisonment.[23] Like Judge Couch, I am somewhat cynical as to the expressions of remorse Mr Palmer has made. I do have regard to his ready admissions of the offending to the Police and his early guilty pleas but, given the strength of the evidence against him, I consider a total discount of 25 per cent for guilty pleas and remorse is appropriate. That leads to an end sentence of two years and three months. Against the existing sentence of two years and seven months, the difference is significant enough to require me to allow the appeal.[24] Accordingly, I find that, because the Judge adopted too high a starting point for the offending, the end sentence he imposed was manifestly excessive. I am satisfied a different sentence should have been imposed. Accordingly, I allow the appeal. The sentence of two years and seven months is quashed. In its place, Mr Palmer is sentenced to two years and three months' imprisonment. The existing orders for reparation made in the District Court remain in effect.Solicitors:Pegasus Bay Law, ChristchurchCrown Solicitor's Office, Raymond Donnelly & Co., Christchurch.