LINFORD v POLICE [2017] NZHC 2166

LINFORD v POLICE [2017] NZHC 2166 [31 October 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-302[2017] NZHC 2166BETWEEN JAMES GEORGE LINFORDAppellantAND NEW ZEALAND POLICERespondentHearing: 30 October 2017Counsel: A J Holland (on instructions from A C Cresswell) for AppellantI S Ko for RespondentJudgment: 31 October 2017JUDGMENT OF BREWER JThis judgment was delivered by me on 31 October 2017 at 12 noonpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Annabel Cresswell (Auckland) for AppellantKayes Fletcher Walker (Auckland) for RespondentIntroduction[1] Mr Linford appeals a sentence of 26 months' imprisonment imposed on himby Judge N Sainsbury on 17 August 2017.1[2] A number of grounds of appeal were advanced in written submissions.However, Mr Holland, who appeared for Mr Linford before me, abandoned all but twoof the grounds. The two grounds remaining are that the starting point was too highand that the uplift for Mr Linford's history of criminal offending and his offendingwhile on bail was excessive.[3] The overall submission is that if I find the Judge to have erred in these respects,I will conclude that the end sentence is manifestly excessive.Background[4] Judge Sainsbury had to sentence on 18 charges. I reproduce the helpful tablewhich was provided to me in the appellant's written submissions:Charge CRN Date/details of offence Sentence imposedObtains bydeception (less than$500)17092005201 18/09/16The appellant ("A")came into possession ofequipment and sold it toCash ConvertersReparation $350,one monthObtains bydeception (less than$500)17004001785 19/06/16A came into possessionof equipment and sold itto Cash ConvertersReparation $450,one monthTakes/obtains/usecredit card17092002192 21/10/16 to 24/10/16A used a stolen Q cardand used it several timesin three daysReparation$1,773.47, twoyears two monthsPossession ofutensils for cannabis16092013593 25/10/16A was found inpossession of a pipe forsmoking cannabisThree monthsPossession ofutensils formethamphetamine16092013961 25/10/16A was found inpossession of a pipe forThree months1 Police v Linford [2017] NZDC 18477.smokingmethamphetaminePossession ofmethamphetamine16092013592 25/10/16A was found with onegram ofmethamphetamineThree monthsResist police 16092013594 25/10/16A swung his arms whilstbeing arrestedOne monthReceives property(over $1000)17092007156 01/06/17A came into possessionof a stolen cellphone andVisa Debit CardTwo years, twomonthsTake/obtain/usecredit card17092007157 01/06/17This charge is in relationto A obtaining the Visadebit cardTwo years, twomonthsTake/obtain/usecredit card17092007192 01/06/17A used the Visa debitcard he received at apetrol stationReparation$231.90, two years,two monthsTheft ex car 17092001928 08/11/16A broke into the victim'scar and stole herbelongingsReparation $1,000,two years, twomonthsTake/obtain/usecredit card16092014763 17/11/16A obtained a BNZ bankcardTwo years, twomonthsTake/obtain/usecredit card16092014764 17/11/16A used the BNZ bankcardReparation$178.20, two years,two monthsTake/obtain/usecredit card16092014761 17/11/16A obtained a Kiwibankbank cardTwo years, twomonthsTake/obtain/usecredit card16092014762 17/11/16A used the Kiwibankbank cardReparation$393.55, two years,two monthsPossession ofutensils formethamphetamine16092014765 18/11/16A was found inpossession of a pipe forsmokingmethamphetamineThree months[5] The two charges missing are breach of community work and breach of bailupon which Mr Linford was convicted and discharged. He had also the benefit of hisexisting community work sentence being cancelled.[6] Judge Sainsbury structured his sentencing by adopting a global starting figurefor the more serious dishonesty offending of 18 months' imprisonment. He added sixmonths for the rest of the dishonesty offending, making a starting point of 24 monthsfor all of the charges relating to dishonesty. The Judge added three months for thedrugs offending and gave an uplift of eight months for previous criminal history andfor committing offences on bail.The first ground of appeal: excessive starting point[7] Mr Holland concentrated on the portion of the starting point for the dishonestyoffending which resulted in an 18 months assessment. The charges involved were forreceiving and using credit cards.[8] I was referred to Rako v R where a starting point of 18 months' imprisonmentfor 11 offences, through which $1,800 were obtained, was considered by the Court ofAppeal to be at the top of the acceptable range.2[9] I was referred also to Tiopira v Police,3 in which Lang J observed that a startingpoint of 12 to 18 months' imprisonment could be expected in cases where an offenderhas made use of multiple stolen credit cards resulting in losses of the order of $2,000to $3,000.[10] In that case, Mr Tiopira came into possession of stolen credit cards and Eftposcards on four separate occasions. He used them 33 times to obtain money and goodsto the value of $11,606.21. He had an extensive criminal history involving differentkinds of dishonesty. The Judge whose decision was appealed to Lang J took a startingpoint of 30 months' imprisonment to reflect the totality of all the offending. The singleground of appeal was that 30 months' imprisonment was manifestly excessive.[11] Justice Lang considered that a starting point of more than three years'imprisonment will be reserved for cases where very significant sums are involved.However, cases where an offender has made multiple use of stolen credit cards orcheques "demonstrate that, as a general proposition, a starting point of around 12 to18 months' imprisonment will be appropriate where the offending results in losses ofaround $2,000 to $3,000".4 His Honour noted, however, that counsel had not been2 Rako v R [2015] NZCA 463.3 Tiopira v Police [2012] NZHC 1720.4 At [12].able to find any comparable case involving the use of several stolen credit cards andtotal losses of around $11,000.[12] Justice Lang considered that the use of multiple stolen credit cards, on 33separate occasions, and obtaining some $11,000, justified lifting the starting pointsignificantly above the 12 to 18 months range. Therefore, although finding that the30 months starting point was at the top of the available range, Lang J dismissed theappeal.[13] In this case, I have no doubt that an 18 months starting point for the use of thecredit cards was within the range available to Judge Sainsbury. The first offendingtook place from 21 October 2016 to 24 October 2016. The card was from a stolenwallet and Mr Linford used it 21 times, and on 14 occasions obtained goods to thevalue of $1,931.47.[14] On 17 November 2016, two victims had their cars broken into and credit cardsstolen. Mr Linford obtained both credit cards on the same day. A Kiwibank bank cardwas stolen from the first car and a BNZ bank card from the second car. Over the nextcouple of days, Mr Linford used the Kiwibank bank card five times and the BNZ bankcard three times. The amounts received were modest, being $393.55 on the Kiwibankbank card and $178.20 on the BNZ bank card.[15] Finally, another victim had their car broken into on 31 May 2017/1 June 2017.A Samsung cellphone and a BNZ Visa debit card were stolen. Mr Linford was arrestedin possession of both, and had used the debit card to obtain $231.90.[16] So, a total of four victims whose cards were used and a total of $4,508.59obtained.[17] This fact picture justifies an 18 months starting point and, considering Tiopira,a higher starting point could have been set.The second ground of appeal: uplift for history and offending while on bail[18] Mr Linford had convictions for drug offending and dishonesty covering severalyears. He had been imprisoned under both categories of charges. Of particular noteto Judge Sainsbury was that he was sentenced to imprisonment for offences that werecommitted in late 2015. Those offences included receiving stolen property, taking andusing bank cards, as well as drug offending and burglary. He commenced his currentoffending spree shortly after he was released from prison. Judge Sainsbury identifiedMr Linford as being a persistent offender.[19] Further, Mr Linford was arrested and given bail during the course of the currentoffending, but continued offending notwithstanding. Again, Judge Sainsbury referredto this under the heading of "persistent offending".[20] Judge Sainsbury also took into account that one reason why Mr Linford wasgiven bail was so he could go into a drug rehabilitation programme and get credit forthat when he came for sentencing. However, Mr Linford did not attend the drugrehabilitation programme and simply continued offending.[21] The uplift of eight months imposed by Judge Sainsbury amounts to, Mr Kosaid, 30% (rounded) of the starting point of 27 months' imprisonment for the actualoffending. Mr Holland, who made careful oral submissions on behalf of Mr Linford,referred me to the decision of the Court of Appeal in Brown v R where the Courtconsidered that an uplift of eight months on a starting point of two years and eightmonths was excessive.5 It amounted to an uplift of 25% on the starting point. TheCourt of Appeal found that the uplift was disproportionate to the starting point,although I note that this was in the context of sentencing for violence where theguideline judgment is Nuku v R6 and the concern expressed by the Court of Appealwas that the uplift put the sentence outside of the band in which the offending hadbeen located.5 Brown v R [2014] NZCA 93.6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.[22] Mr Holland submitted that even if I find the uplift to be warranted, if I alsofound the starting point to be stern then it would not be right to add eight months'imprisonment to what would otherwise have been an appropriate sentence.Decision[23] I have to stand back and look at the sentence as a whole. I have to decidewhether a sentence of 26 months' imprisonment was manifestly excessive given thetotality of Mr Linford's offending as disclosed by the charges. Even if I were to findthat Judge Sainsbury adopted starting points or uplifts which were too high, I wouldonly disturb the sentence if the overall result was manifestly excessive.[24] I find that Judge Sainsbury's sentence was well within the range available tohim. The starting point of 18 months for the more serious dishonesty offending couldhave been higher. There were four victims involved and persistent offending. Theuplift of six months for the other dishonesty offending was well within the rangeavailable to the Judge. There can be no quarrel with an overall starting point of24 months' imprisonment for all of the dishonesty offending.[25] Likewise, the three months uplift for the drugs offending is unexceptional.[26] The uplift of eight months' imprisonment for Mr Linford's previous criminalhistory and for the fact that he was offending on bail is high given that it amounted to30% of the 27 months starting point. But percentages are one thing and the facts theyare based on another. The purpose of an uplift for previous criminal history isprimarily to deter. In other words, the offender is not learning from his previoussentences and higher sentences are warranted to bring that home to them.[27] Here, Mr Linford had only just been released from prison for similar offendingand he began again. An uplift of 10 to 15% was justified. Likewise, the fact that muchof the offending occurred while Mr Linford was on bail warrants an uplift to denounceand deter such disregard for the conditions on which he was allowed liberty pendingtrial. Here, Mr Linford began to offend and was granted bail so as to give him thechance to undergo rehabilitation and claim credit for it at sentencing. He chose todisregard that opportunity and to carry on offending. Judge Sainsbury had to markthat situation with an appreciable uplift. Accordingly, I find the eight months uplift tobe within the range available to the Judge, although at the upper end of it.[28] Standing back and looking at the totality of Mr Linford's offending, I cannotsay that the end sentence of 26 months is manifestly excessive. Indeed, I find it to bewithin the range available to the Judge.Conclusion[29] The appeal is dismissed.________________________________Brewer J