URSUA v NEW ZEALAND POLICE [2023] NZHC 3479

URSUA v NEW ZEALAND POLICE [2023] NZHC 3479 [1 December 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-465[2023] NZHC 3479BETWEEN JAN BRYON DUQUE URSUAAppellantAND NEW ZEALAND POLICERespondentHearing: 27 November 2023Appearances: C M Chester-Cronin for AppellantJ L Gibson for RespondentJudgment: 1 December 2023JUDGMENT OF O'GORMAN JThis judgment was delivered by me on 1 December 2023 at 1 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:C M Chester-Cronin, Barrister, AucklandMeredith Connell, Auckland[1] Mr Ursua was sentenced to two years and seven months' imprisonmentfollowing guilty pleas to 43 charges. The charges are:(a) obtaining by deception (over $1,000) (x 25);1(b) accessing computer system for a dishonest purpose (x 2);2(c) altering a document with intent to defraud (x 1);3(d) obtaining by deception ($500–$1,000) (x 6);4(e) failing to carry out obligations in relation to a computer search (x 1);5(f) intent to access a computer system for a dishonest purpose (x 1);6(g) obtaining by deception (less than $500) (x 2);7 and(h) theft of property (less than $500) (x 5).8[2] Prior to the guilty pleas being entered, Judge A M Fitzgibbon had provided asentencing indication on 3 May 2023.9 That sentencing indication consisted of:(a) a starting point of 40 months' imprisonment for the leading offending;(b) an uplift of two months for the other offending, resulting in an overallstarting point of 42 months' imprisonment; and(c) a 25 per cent discount for any guilty plea.1 Crimes Act 1961, ss 240(1)(a) and 241(a). The maximum penalty is seven years' imprisonment.2 Section 249(1). The maximum penalty is seven years' imprisonment.3 Section 258. The maximum penalty is 10 years' imprisonment.4 Sections 240(1)(a) and 241(b). The maximum penalty is one year's imprisonment.5 Search and Surveillance Act 2012, s 178. The maximum penalty is three months' imprisonment.6 Crimes Act, s 249(2). The maximum penalty is five years' imprisonment.7 Sections 240(1)(a) and 241(c). The maximum penalty is three months' imprisonment.8 Section 223(d). The maximum penalty is three months' imprisonment.9 New Zealand Police v Ursua CRI-2022-044-1596, 3 May 2023 (sentencing indication).[3] This was summarised as a total of approximately two years and six months'imprisonment, but it was suggested that the appellant "might get under the 24-monthmark which enables the Court to consider an electronically monitored sentence".10[4] At sentencing, the calculation was as follows:11(a) a starting point of 40 months;(b) an uplift of two months for further offending;(c) a discount of 25 per cent for the guilty plea;(d) a two-week discount for remorse; and(e) a reparation payment of $5,000.[5] The sentence is appealed on the grounds that it is manifestly excessive.Counsel for the appellant submits that:(a) the starting point was excessive because it did not factor in anassessment of the motivation for his offending; and(b) the discounts for mitigating factors were insufficient because:(i) a further discrete discount of up to five per cent should beawarded pursuant to s 9(2)(g) of the Sentencing Act 2002 forthe fact that he is a first offender and/or had previous goodcharacter;(ii) social and cultural factors relevant under a s 27 report justify afurther discount of 10–15 per cent;(iii) a discount of five per cent should be applied for remorse; and10 At [10].11 New Zealand Police v Ursua [2023] NZDC 16796.(iv) a further discount of five per cent should be awarded for theappellant's prospects of rehabilitation.Legal principles[6] The Court must allow an appeal against sentence if it is satisfied that there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.12 Generally, the sentence must be shown to be manifestly excessive orwrong in principle.13 The focus is on the end sentence imposed, rather than the processby which it is reached.14[7] The claim that a sentence is manifestly excessive (or inadequate) is inevitablypremised on the contention of prior error, which may include questions of whether thestarting point was too high given the facts, or of incorrect discounts.15[8] Appellate courts do not indulge in mere tinkering with a sentence.16 The Courtgenerally will not intervene where the sentence is within the range that can properlybe justified by accepted sentencing principles.Fresh evidence[9] In respect of the social and cultural factors, the appellant seeks leave unders 334 of the Criminal Procedure Act 2011 to produce an affidavit from the appellantaddressing his background.[10] The Supreme Court in Berkland v R addresses when background factors of anoffender, referred to by the Court as "s 27 information", is required to be taken intoaccount.17 Such background information is required to be taken into account where itcausatively contributes to the offending.12 Criminal Procedure Act 2011, s 250.13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].14 At [36].15 At [32].16 R v Boyd (2004) 21 CRNZ 169 at [38].17 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]–[109].[11] Usually, s 27 information is provided from a source other than the defendant.As noted by Harland J in Mullan v Police, s 27 of the Sentencing Act contemplatesthat a separate person, apart from an offender but at an offender's request, can be calledby them to speak about the matters outlined in s 27(1).18[12] The appellant contends that the affidavit evidence is admissible under s 334 ofthe Criminal Procedure Act, under the criteria established in Lundy v R:19(a) Is the evidence credible?(b) Is the evidence fresh, in the sense that it could not have been obtainedwith reasonable diligence prior to the lower court's hearing?(c) As the overriding test, is it in the interests of justice to admit theevidence regardless of "freshness"?[13] In T (CA440/2018) v R, the appellant filed affidavit evidence from himself andhis sister for an appeal, seeking recognition of his status as a foreign prisoner and hiscultural background for fixing applicable mitigating discounts under s 8(h)–(i) of theSentencing Act.20 The respondent did not object to the Court considering the affidavitevidence, on the assumption that it should have been provided to the sentencing Judgebut was not done so for reasons akin to counsel error.21[14] In this case, the respondent says it is questionable whether the affidavit isadmissible under the Lundy principles, but no objection was taken to this Courtreceiving and considering the affidavit. Counsel for the respondent says that a properanalysis should be undertaken under s 27 to determine whether the appellant is entitledto a discount. For circumstances where the evidence is given by the appellant himselfrather than another person, little to no weight should be given to the affidavit.Furthermore, while the affidavit evidence outlines background information that insome ways explains the context of and motivations for the offending, it does not satisfy18 Mullan v Police [2023] NZHC 962 at [23]–[24].19 Lundy v R [2013] UKPC 28 at [117]–[120], referencing R v Bain [2004] 1 NZLR 638 (CA).20 T (CA440/2018) v R [2018] NZCA 416.21 At [12].the requirement of causatively contributing to the offending. Ultimately, the facts asoutlined in that evidence do not justify any discount for the personal background interms of s 8(i) of the Sentencing Act.[15] While the affidavit evidence could have, with reasonable diligence, beenobtained prior to the sentencing, the evidence is a credible source of additionalinformation regarding the appellant's personal background. I consider it is in theinterests of justice to admit the fresh evidence for the purposes of this appeal.Starting point[16] The appellant contends that the adopted starting point was too high because itdid not factor in the appellant's motivation for the offending. For comparison, counselreferred to the following cases:(a) In K v R,22 the defendant faced four charges of dishonestly using adocument, 12 charges of obtaining by deception, three charges of usinga forged document, a charge of theft of a motor vehicle, a charge oftheft, two charges of possession of utensils, a charge of possession ofcannabis, a charge of possession of methamphetamine and a charge ofpossession of objectionable publication. In that case, the starting pointof four years and 10 months' imprisonment was upheld on appeal asbeing "stern but within range".23(b) In Beaumont v Police,24 the starting point upheld on appeal was threeyears and nine months' imprisonment.25 The offending involved16 charges of obtaining by deception (over $1,000), and further chargestotalling 39 dishonesty charges. This Court held that the offendinginvolved a relatively moderate degree of sophistication andpremeditation, and the deception had a significant emotional andfinancial impact on the victims.26 The appellant says that the amounts22 K v R [2022] NZHC 3337.23 At [59].24 Beaumont v Police [2022] NZHC 472.25 At [21].26 At [40].stolen were similar, but the appellant's offending was not assophisticated as Mr Beaumont's offending, who ran various schemeswith increasing degrees of premeditation. Mr Beaumont also had ahistory of offending and not following through on promises to addresshis issues.(c) In Visser v Police,27 the appellant faced 18 charges of obtaining bydeception. In this Court, a starting point of three years and six months'imprisonment was upheld, with this Court recognising that theoffending was not particularly sophisticated, but it was persistent anddishonest, with considerable premeditation.28 The appellant suggeststhat the offending in Visser is more serious than in the present matter,with the total sum stolen ($270,063) being much greater. In Visser, theconduct was motivated by circumstances of financial distress, whereasin this case the appellant's conduct was motivated by the need to payfor his drug addiction (in terms of ongoing supply and to pay off relateddebts).(d) In Helsby-Knight v R,29 the defendant faced 48 charges of dishonestlyusing a document and 69 charges of causing loss to others by deception.The defendant pleaded guilty to three representative charges — two ofusing a document to obtain a pecuniary advantage and one of using aforged document. On appeal, the starting point of three years and sixmonths' imprisonment was upheld, but the Court of Appeal noted thatit could have been higher.30 Counsel for the appellant submits that theoffending in this case is substantially less serious than inHelsby-Knight.[17] I have reviewed these other cases and consider they are sufficiently analogousto support the 42-month starting point adopted by Judge Fitzgibbon in this case. Iaccept the respondent's submissions that, whilst some of Mr Ursua's offending was27 Visser v Police [2015] NZHC 3275.28 At [15]29 Helsby-Knight v R [2015] NZCA 315.30 At [49].relatively unsophisticated (like the petrol drive-offs), a lot of it was premeditated,targeted, and took place over an extended period, including beyond the time of hisemployment. The amounts stolen by the appellant were significant. The offendinginvolved serious breaches of trust. He used his account to log in to his formeremployer's ordering system and placed orders six times.[18] In R v Varjan, the Court of Appeal stated:31Culpability is to be assessed by reference to the circumstances and such factorsas 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 offendingoccurred; the seriousness of breaches of trust involved; and the impact onvictims.[19] However, under the two-step process subsequently established in R v Tauekiand Moses v R, aggravating and mitigating factors personal to the offender areconsidered in the second stage rather than the first.32 Accordingly, I consider the issueof the appellant's personal motivations further below.[20] Meanwhile, I conclude that Mr Ursua's starting point was well within theavailable range and there is no error that needs to be corrected.Stage two discounting factors[21] I accept the respondent's submission that the appellant is not entitled to adiscrete discount of up to five per cent for previous good character pursuant to s 9(2)(g)of the Sentencing Act. He has six previous convictions, albeit for more minoroffending of a different nature. Significantly, this offending took place over aprolonged period of time, including while Mr Ursua was on bail. In thosecircumstances, a discount for previous good character is not justified.[22] Counsel for the appellant seeks to argue that a discount of 10–15 per centshould be applied for the social and cultural factors outlined in the appellant'saffidavit. These start with the fact that the appellant was born in the Philippines and31 R v Varjan CA97/03, 26 June 2003 at [22].32 R v Taueki [2005] 3 NZLR 372 (CA) at [8] and [44]; and Moses v R [2020] NZCA 296; [2020] 3NZLR 583 at [6] and [46].moved to New Zealand when he was 14 years old. He experienced culture shock withrespect to the different role the church played in the community, and he got involvedwith friends who did not attend church. This led to him disconnecting from the churchand, in turn, his family. He was introduced to alcohol by his friends and began to drinkheavily and smoke weed by the age of 15. Over the ensuing years, this developed intomore serious drug use and ultimately drug addictions. He started using drugs providedby his girlfriend, not realising that the Head Hunters gang would seek payment fromhim for those supplies. This led to the present offending during 2021 and 2022, to paythose debts and fund further drug use. Mr Ursua is now 30 years old.[23] In Zhang v R, the Court of Appeal observed that ingrained systemic deprivationimpairing a defendant's choice, and therefore diminishing moral culpability, willrequire consideration in sentencing.33 Social, cultural or economic deprivation thathas a demonstrative nexus with the offending may be relevant in mitigation.34 Thecogency of any s 27 information depends on the strength of the link between anydeprivation, the offender and his or her offending, and the availability of rehabilitativemeasures to specifically address the effects of systemic deprivation.35[24] In Poi v R, the Court of Appeal granted a 20 per cent discount to acknowledgethe appellant's severe deprivation and disadvantage, as well as his rehabilitativeprospects and steps taken to address past trauma.36 In that case, the appellant'sbackground and the profound trauma he suffered had severely limited his choices,distorted his values, and impaired his decision-making ability.[25] However, the Court of Appeal in Cavallo v R confirmed that such a discountwill not necessarily be justified where the person has been waylaid "not so much by asystemic inability to discern right from wrong, but by the temptation to gain wealth byserious criminal offending".3733 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [159].34 At [162].35 Cavallo v R [2022] NZCA 276 at [78], referencing Solicitor-General v Heta [2018] NZHC2453, [2019] 2 NZLR 241 at [49].36 Poi v R [2020] NZCA 312 at [39].37 Cavallo v R, above n 35, at [79].[26] While Mr Ursua's affidavit explains how Mr Ursua reached the point of havinga drug addiction, I do not consider that his background satisfies the establishedthreshold of causatively contributing to the offending. Mr Ursua had a pro-socialupbringing with a supportive nuclear family. I do not see any basis for concluding thathe was impacted by a systemic inability to discern right from wrong. Accordingly, Itake the view that the circumstances do not justify any entitlement to a further discountfor social and cultural factors in themselves.[27] Even so, it is relevant to consider whether the causative impact of theappellant's drug addiction should be taken into account when considering adiscount for rehabilitative prospects.38 In this case, the appellant says that he wasrepresented by different counsel at sentencing and the importance of rehabilitation wasnot clear to him then. The appellant now acknowledges that he needs to address hisaddiction and rehabilitate himself. He has reached out to Community Alcohol andDrug Services (CADS) and has undertaken two assessments and requested admissioninto their abstinence programme. A letter was handed up at the appeal hearing toconfirm that he attended and completed an appointment on 10 November 2023 andhas been invited to attend the CADS Abstinence Programme.[28] I am satisfied that a discount of five per cent might have been appropriate forthe appellant's prospects of rehabilitation on the information before this Court. TheDistrict Court did not consider this mitigating factor, because it was neither sought norfactually substantiated at the time of sentencing. To the extent rehabilitative steps havebeen taken after the date of the sentencing, the Judge cannot be said to have been inerror for not considering them.[29] On the issue of remorse, counsel for the appellant submits that a furtherdiscount of five per cent should be allowed, reflecting both his letter to theDistrict Court at sentencing and the remorse displayed in the appellant's recentaffidavit. I do not see any reason to revisit Judge Fitzgibbon's assessment that adiscount of only two weeks was warranted for the remorse letter offered at a late stage.The appellant's recent affidavit for this appeal shows some important subsequent38 At [84].personal reflection, but this is mainly about identifying potential causes other than hisown moral choices, and the advantages he can now see in addressing his addictions.The only acknowledgment of damage to victims is in the context of being"embarrassed, ashamed and frustrated at myself for the pain I have caused my familyand the consequences of my offending on my old employer (who was always good to[him])".[30] I have considered whether to set aside the sentence and substitute a new onewith an additional five per cent discount for prospects of rehabilitation. However, Iaccept the respondent's position that the sentencing Judge did not make any error onthe information existing at that time, the overall sentence was sound and within rangein the circumstances, an amendment of that nature would amount to tinkering, and anyacceptance of a discount for mitigating factors could be outweighed by an increase inthe starting point.[31] Stepping back, I still consider the sentence is within the range that can properlybe justified by accepted sentencing principles.Result[32] Accordingly, I dismiss the appeal.____________________O'Gorman J