GOODALL v NEW ZEALAND POLICE [2016] NZHC 2440

GOODALL v NEW ZEALAND POLICE [2016] NZHC 2440 [13 October 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2016-409-000100[2016] NZHC 2440BETWEEN DEAN GOODALLAppellantAND NEW ZEALAND POLICERespondentCRI-2016-409-000101BETWEEN DEAN GOODALLAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 11 October 2016Appearances: K J Beaton for AppellantE J Henderson and M Zarifeh for RespondentsJudgment: 13 October 2016JUDGMENT OF GENDALL JIntroduction[1] Mr Goodall the appellant appeals against a sentence of two years and twomonths' imprisonment imposed by Judge Couch in the District Court at Christchurch on 2 September 2016. The list of charges for which the appellant was sentenced is extensive, but can briefly be categorised into three sets:(a) Rotorua charges (the first set of charges):(i) theft of a motor vehicle(ii) obtaining by deception(b) Charges for resentencing (the second set of charges):(i) three counts of breaches of parole(ii) wilful damage(iii) driving with excess breath alcohol; and(iv) disorderly behaviour(c) New Blenheim charges (the third set of charges)(i) breach of community detention(ii) breach of intensive supervisionBackground[2] The facts relating to the first set, the Rotorua charges, were succinctly summarised by Judge Couch during sentencing. His Honour observed that:1On 24 March this year [the appellant] went to a car dealer in Rotorua. [The appellant] agreed to buy a Holden car for $24,000. [The appellant] were1 New Zealand Police v Goodall [2016] NZDC 17124 at [2].given the use of a Subaru courtesy car until that purchase price was paid. The value of the Subaru was some $8000. The purchase price was never paid but by mistake the dealer thought it had been paid and delivered the Holden car to [the appellant]. [The appellant] then sold both cars. The Subaru was recovered. Because of the circumstances of sale, title to the Holden had legally passed to the purchaser and it was not recoverable, notwithstanding you had never paid for it. That led to the charges of theft of the Subaru motor vehicle and obtaining the Holden motor vehicle by deception.[3] The second and third set of charges originally related to sentencing this year at the District Court in Blenheim. Previously the appellant had been sentenced tofour months' community detention and 12 months' intensive supervision on a number of charges including driving with excess breath alcohol and three charges of breach of release conditions. Then, on 13 July 2016, the appellant breached his community detention by cutting off the monitoring bracelet and failing to return to the detention address. Community Probation therefore applied for both sentences to be cancelled and the appellant is now to be re-sentenced on these charges.[4] As the sentencing and this appeal however was primarily focused on the charges of theft and obtaining by deception of the two motor vehicles, the second and third sets of charges are of more limited relevance before me here. I will therefore deal principally in this appeal with the first set of charges at Rotorua whichformed the basis of the appellant's appeal.Jurisdiction[5] Mr Goodall appeals as of right.2 Pursuant to s 250 of the Act, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed. If either elements are not satisfied, the appeal court must dismiss the appeal.District Court Decision[6] In sentencing in the District Court, Judge Couch recognised the seriousnessof the offending and the "deliberate dishonesty for personal gain" of the Rotoruacharges. The convictions for theft and obtaining by deception of the motor vehicles2 Criminal Procedure Act 2011, s 244.carried a maximum penalty of seven years' imprisonment. The total value of the two vehicles was up to $32,000. Taking into consideration all these factors, and the fact that the appellant has little to no possibility of making full reparation, a starting pointof two years' imprisonment was adopted. A further uplift of six months' imprisonment was imposed to recognise the appellant's significant criminal record ofmore than 40 dishonesty offences. A discount of 23% or seven months' imprisonment was given to reflect the appellant's guilty plea. This left a sentence onthese two charges of 23 months' imprisonment. Concurrent sentences of one monthwere imposed in respect of the breaches of community detention and intensive supervision. On the re-sentencing charges, Judge Couch imposed a cumulativesentence of three months' imprisonment.Submissions[7] Before me, the principal submission from Ms Beaton, counsel for the appellant, was that the starting point of two years' imprisonment was too high, and Judge Couch erred in his assessment of the appellant's overall culpability here. In addition, she argued that insufficient credit was given for the appellant's remorse andhis desire to make amends. The appellant, too, disputes certain elements in the summary of facts. For example, in relation to the theft of the Subaru vehicle, theappellant argues that he was "stood over" for this car by an unnamed associate andas a result lost the vehicle. He denies involvement in selling it or receiving any financial gain from the Subaru.[8] Furthermore, in relation to the Holden vehicle, the appellant claims now that he "believed" that the money had gone through when the car was delivered. However, he accepts that he was dishonest in selling the vehicle when it came to light that the payment was not made.[9] Ms Beaton further submits that Judge Couch did not give sufficient credit forthe appellant's genuine remorse as required by s 10 of the Sentencing Act 2002. The appellant suggests that he had taken all steps necessary to address remorse here, including offering to pay reparation and pleading at the earliest possibility.DiscussionWas the two year starting point too high?[10] While there are no tariff guidelines for dishonesty offending, both counsel have referred me to the Court of Appeal decision in R v Varjan, where it was held:3Culpability 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 victims; the motivation for offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of the breaches of trust involved; and the impact on the victims.[11] In determining a sentence, the Court must accept as proved all facts that are essential to a plea of guilty or a finding of guilt.4 Where the facts are not essential to the plea of guilty, it is for the Court, as the finder of facts, to decide whether to accept as proved any facts that were disclosed by evidence at trial and any facts agreed on by the prosecutor and the offender. In light of s 24 of the Sentencing Act 2002 and the appellant's guilty plea, unsurprisingly Judge Couch found that both the elements of mens rea and actus reus were present in sentencing the appellant for obtaining the Holden by deception and stealing the Subaru.[12] The appellant's factual dispute raised now, that he was "stood over" for theSubaru vehicle and did not sell or profit from it, does not in my view mean that a disputed facts hearing is required here. As I see it, this disputed fact would not have materially altered the sentence imposed in the District Court. By pleading guilty to the charge of theft, the appellant has admitted to dishonestly and without claim of right, dealing with the motor vehicle with the intent of permanently depriving the true owner of any interest in obtaining, possessing, or controlling the vehicle.5Clearly the appellant stole the Subaru and there is no dispute that he was responsible also for the sale at least of the more expensive Holden vehicle which was unable to be recovered.3 R v Varjan CA97/03, 26 June 2003 at [22].4 Sentencing Act 2002, s 24(1)(b).5 Crimes Act 1961, s 219.[13] It was open for the sentencing Judge to find as he did that in all the circumstances here there was an element of "deliberate dishonesty for personal gain;truly cynical offending". By the appellant's own admission, he became aware that no payment was made when he received the Holden. At that point, the appellant proceeded dishonestly by selling the Holden the next day, causing the car yard significant financial loss.[14] And, as I have noted above, the appellant made no request at any stage for the disputed facts hearing procedure to be carried out, despite there being ample opportunity for him to apply to the Court for this. It is also questionable in any event as to the material difference this would have made to the end result.[15] Turning now to the Judge's two year imprisonment starting point adopted forthe two motor vehicle offences, at the outset I need to say that I am satisfied this starting point was available to Judge Couch. The maximum penalty for the offences of theft and obtaining by deception is seven years' imprisonment. Although there areno tariff judgments for either of these offences, however, the comments and principles of the Court of Appeal in Varjan noted at [10] above are helpful and have been reiterated by the Court of Appeal recently in Rako v R.6 In that case it was held that culpability for this type of offending is not to be measured solely or even primarily by reference to the amounts at issue. Other aggravating factors such as, in particular, the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and the breach of trust involved are relevant too. A composite evaluation of all these factors is required.[16] Aggravating features of the present offending which were identified by Judge Couch included the value of the vehicles ($32,000) and the fact that this was at least in the main "deliberate dishonesty for personal gain."[17] A number of cases referred to me on this appeal also in my view demonstrate that the starting point of two years' imprisonment adopted here by Judge Couch was appropriate:6 Rako v R [2015] NZCA 463.(a) In R v Thomas7 the defendant was sentenced on numerous drug and dishonesty charges. The dishonesty charges involved thefts of a Holden vehicle valued at $3000 and a Mazda vehicle valued at $2000 and one charge of receiving car stereo equipment and speakers. Both vehicles were found located at the defendant's property with, in thecase of the Mazda vehicle, its rear window etchings obliterated and false plates having been attached to the vehicle. Noting that thedefendant's history of dishonesty offending was a significantaggravating feature here, Nicholson J adopted a starting point of oneyear and eight months' imprisonment for the totality of the dishonestyoffending.(b) Next, in De Seymour v NZ Police8 a starting point of 12 months'imprisonment was adopted on a lead charge of unlawfully taking a motor vehicle. The appellant offender had persuaded the owner of a vehicle valued at $12,000 to allow him to take it for a test drive. The vehicle was never returned. The appellant had spray painted it a different colour and removed the identifying plates. The vehicle was located by Police in such a condition that the value of reparation sought was a sum of $11,000. The appellant in that case also had a"formidable" list of offences for dishonesty.(c) The last case which was referred to me by counsel for the appellant isCostello v R.9 Counsel suggested this decision clearly supported the two year starting point for the offending in the present case. InCostello a starting point of 12 to 18 months was adopted. Nicholas Costello, one of the appellants, had provided false income information to a finance company to enable him to purchase a second- hand car from a car dealer. On the same day, his brother Jonathan Costello provided false references to support that finance company application. Over the next few weeks the car was used to carry out7 R v Thomas T04-029-931, 19 August 2005.8 De Seymour v NZ Police [2013] NZHC 2232.9 Costello v R [2015] NZCA 512.multiple burglaries before it was repossessed, by which time it had travelled more than 6000 kilometres. The finance company incurred servicing costs and losses in relation to the resale value of the car. The Court of Appeal considered the appropriate starting points for the charges against Nicholas Costello to be 18 months' imprisonment andfor Jonathan Costello to be 12 months' imprisonment. In doing so, the Court noted that the offending was one-off, the loss was comparatively low, there was no obvious breach of trust and the victim was not particularly vulnerable.[18] The present offending, in my view, is significantly more serious than that inR v Thomas. In Thomas the combined value of the stolen vehicles was significantly lower than in the instant case, and the vehicles were not on-sold. However, I do accept that there was an additional but minor charge of receiving in Thomas. The present offending, as I see it, is also more serious than that in both Seymour v Policeand Costello v R as in each of those cases only one vehicle was involved and it had not been disposed of by the defendant/appellants. As such the losses incurred by the victims in those cases were less significant. The appellant's offending in the presentcase was clearly premeditated (e.g. before the sale of the Holden in particular he had ample time to think on matters, see the error of his ways and return the vehicle), it involved two instances of major dishonesty, and it involved substantial breaches of trust the dealer had placed in the appellant by freely giving him use of the cars.[19] Accordingly, in all the circumstances prevailing in the present case, I am satisfied the starting point of two years' imprisonment cannot be viewed as manifestly excessive here.[20] I add too that, given the appellant in the past has served numerous short sentences of imprisonment for dishonesty offending and he continued here to reoffend in a very similar manner, in my view, Judge Couch appropriately adopted a starting point that would sufficiently address a key sentencing purpose of personal deterrence, and he did so.[21] In summary, I repeat that I do not accept the starting point of two years'imprisonment was too high in all the present circumstances. As to the aggravating factors identified by the sentencing Judge, I agree that the offending involving, as it did, two separate vehicles, had features of deliberate dishonesty, premeditation and breaches of trust. The appellant took full advantage of the car dealer's mistakenbelief that payment had been made for the Holden and used that for personal gain. This caused significant loss to the car yard with limited prospect of full reparation being paid by the appellant.Was there a failure to recognise personal mitigating factors?[22] As I have already mentioned, before me Ms Beaton submitted that Judge Couch erred in his sentencing exercise in that he failed to take into account theappellant's remorse, his desire to participate in restorative justice, and his willingness to pay reparation. Section 10 of the Sentencing Act 2002 requires the Court to take into account any amends, whether financial or by other means, made by or on behalf of an offender.10 Furthermore, s 9 of the Act permits the Court to take into account any remorse shown by the offender. The appellant submits that taking all these factors into account, a greater discount than the 23% afforded for an early guilty plea should have been given.[23] However, while the Court is bound to take into account any amends offered by the offender, it must also consider whether or not the amends were genuine and capable of fulfilment.11 As to remorse, in my view, Judge Couch was entitled not to give any further credit for remorse in light of comments made in the pre-sentence report. In particular, the report writer noted that the appellant exhibited neither remorse nor insight into his offending and attempted to shift blame to others. Thislack of remorse and insight, as I see it, is further evidenced by the appellant'ssignificant history of similar offending. And, in the pre-sentence report it was saidthe appellant "reluctantly agreed" that he should pay the reparation sought. JudgeCouch therefore ordered that he pay $24,000. On this reparation question Judge Couch expressly noted too that even though the appellant had offered to pay10 Sentencing Act 1878, s 10(a).11 Section 10(2).reparation, he still owed more than $38,000 in respect of earlier offending (and some $12,500 odd of this was in arrears). I am satisfied that it would be quite inappropriate for the appellant to receive a sentencing discount for a reparation payment that was unlikely to be made for a significant period of time, if at all. And, in my view it was open for Judge Couch to find that, in light of the appellant'scontinued pattern of dishonest offending, little weight was to be given to his purported demonstration of remorse.[24] For all these reasons I find that Judge Couch was correct not to discount theappellant's sentence to take into account remorse and offers to make amends. Thisground of appeal must also fail.Result[25] For all of the reasons outlined above, I am satisfied that the end sentence oftwo years and two months' imprisonment was available to Judge Couch and cannotbe viewed as manifestly excessive.[26] This appeal is dismissed....................................................Gendall JSolicitors:Kerryn Beaton, ChristchurchRaymond Donnelly & Co, Christchurch