CHADDERTON v NEW ZEALAND POLICE [2019] NZHC 2072

CHADDERTON v NEW ZEALAND POLICE [2019] NZHC 2072 [22 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-324[2019] NZHC 2072BETWEEN JASON CHADDERTONAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2019Appearances: T Clee for AppellantE Wolley for RespondentJudgment: 22 August 2019ORAL JUDGMENT OF WALKER J[1] Mr Chadderton appeals his sentence of 16 months' imprisonment on one countof receiving and nine counts of dishonest use of a document.1 This sentence wasimposed following guilty pleas.[2] On behalf of Mr Chadderton, Mr Clee submits the sentence imposed wasmanifestly excessive. The Crown does not oppose the appeal. It observes that thestarting point adopted by the District Court Judge does not sit comfortably alongsideauthorities involving more serious offending.Offending[3] The receiving charge and one charge of dishonest use of a document wereprosecuted by the Crown. A wallet was taken from a parked car, and a credit card wastaken from a home while the victims were sleeping. Mr Chadderton and his partnerand co-defendant, Ms Rewa, made use of these stolen credit cards. Over a period from14 to 20 January 2018, Mr Chadderton and Ms Rewa used the stolen credit cards,unlawfully obtaining $998.69.[4] The remaining dishonest use of a document charges were prosecuted by thePolice. These concerned the use of credit cards stolen from a victim's home overnight.Between 16 and 19 January 2018, Mr Chadderton used these cards in a range oftransactions, primarily at petrol stations. He unlawfully obtained a sum of $608.99.[5] Importantly, the summaries of facts to which Mr Chadderton pleaded guilty donot sheet home responsibility to Mr Chadderton for the taking of the credit cards. Thecharges relate only to the use of the stolen cards.District Court decision[6] Judge Ronayne set a starting point of 17 months. His description of theaggravating features of the offending is of particular importance to this appeal and isset out in full:21 All charges carry a maximum of seven years' imprisonment.2 R v Chadderton [2019] NZDC 13162.[12] The aggravating features are of course that you committed multipleoffences, that there are multiple victims, that these cards that you received andused came into your possession in extremely close proximity to a burglary anda theft in which the cards were taken. It is impossible to imagine somebodycommitting a burglary and then within literally minutes, handing the card overto you. That is an aggravating factor that I cannot ignore. I do not know whowas in that van or who was in that house, but you happened to be using thecards very soon afterwards.[7] The Judge also considered the offending was aggravated because it wasdeliberate, pre-planned and premeditated, and because it was motivated by pure greed.Additionally, the losses suffered by the victims were not recoverable.[8] The Judge made reference to Mr Chadderton's criminal history and rejecteddefence counsel's submission that there should be no uplift because of the age andnature of them. These included convictions in the District Court for burglary, theft,receiving, and car conversion, a number of violence convictions, and "no less than 41non-compliance offences."3 He recorded that almost a full range of sentencing optionshave been tried, from imprisonment down.[9] An uplift of three months was applied to reflect both this criminal history anda failure to appear by Mr Chadderton which had delayed the case without reasonableexcuse. A 20 percent discount for guilty plea was applied, being the sole mitigatingfactor. This resulted in an end sentence of 16 months' imprisonment. The Judgeconsidered home detention was inappropriate in light of Mr Chadderton's multipleprevious bail breaches and non-compliance offences.Submissions[10] Mr Clee submits the Judge made a material factual error by describing theoffending as having taken place "within literally minutes" of the burglaries. He notedthat in relation to the dishonest use of a document charge prosecuted by the Crown,the burglary could have taken place any time from 9.30 pm but the first use of the cardwas not until 2.52 am the following morning. He also criticises the uplift forMr Chadderton's failure to appear.3 At [8].[11] Mr Clee says the end sentence of 16 months is manifestly excessive and seeksan alternate sentence of 10 months' imprisonment.[12] The Crown notes that the prosecution was managed in part by the Crown (whosought a start point of nine months) and in part by the Police (who sought a sentenceof three to six months). Looking at the totality of the offending, the Crown accepts aglobal start point of 12 months would be appropriate.[13] Both Mr Clee and the Crown record that Mr Chadderton has already spent theequivalent of 14 months in custody, having been remanded in custody since9 February this year because of a breach of bail.Jurisdiction on appeal[14] Appeals against sentence are governed by ss 244, 245 and 250 of the CriminalProcedure Act 2011. I must allow the appeal if the appellant can point to a materialerror, either intrinsic to the Judge's reasoning, or because of additional materialsubmitted on the appeal which vitiates the sentencing decision of the Court below.4Without a material error, for example a sentence that is manifestly excessive,manifestly inadequate, or wrong in principle, I am not able to intervene.Analysis[15] Having had the advantage of time to consider the principles at issue, I doconsider Judge Ronayne made a material error. A sentencing Judge is entitled to drawinferences from agreed summaries of facts.5 However, there are limits. In Waiapu,Lang J described the extent to which Judges can draw inferences from summaries offacts at sentencing:6 it is now well established that where a guilty plea has been entered on thebasis of an agreed summary of facts, sentencing must proceed on the basis ofthat summary. Where the sentencing Judge proposes to take into account anaggravating factor that is not apparent from the summary of facts or reliedupon by the prosecution, the Judge must indicate the weight likely to be givento the factor. If it is disputed, the defendant must have the opportunity to4 Tutakangahau v R [2014] NZCA 279 at [29]-[31].5 Pokai v R [2014] NZCA 356 at [31].6 Waiapu v R [2016] NZHC 2491 at [14].contest it at a disputed facts hearing. In the present case that would have placedthe Crown in the invidious position of being required to side with the defencein disputing the aggravating factor that the Judge considered should be takeninto account.[16] Waiapu concerned a sentence appeal where a Judge had treated an indecentassault charge as representative rather than limited to the specific incidents in theagreed summary of facts. Lang J considered the District Court should have sentencedon the basis of the summary of facts; or given the defendant an opportunity to vacatehis plea and proceed to a disputed facts hearing.[17] I consider that a similar error is present here. The Judge treated the proximityof Mr Chadderton's offending to the commission of a burglary as an aggravatingfactor. This is not a case of inferring an aggravating factor from the statement of facts;for example, inferring pre-meditation from the behaviour of the accused prior to theoffending. Rather, in my view, the Judge implied criminality that Mr Chadderton hadnot pleaded guilty to and that was not relied on by the prosecution; Mr Chaddertonwas not charged with either theft or burglary, only with the use of the cards. Whilethe Judge's approach is understandable in context, I consider that sentencing may onlyproceed on the basis of the summary of facts.Starting point[18] Even if it was available to the Judge to treat the proximity betweenMr Chadderton's offending and the burglaries or thefts as aggravating, I consider thestart point was manifestly excessive.[19] The parties have cited the following cases as providing assistance indetermining the start point, Doctor v Police7 and Rako v R.8 In Doctor v Police,Mr Doctor pleaded guilty to six charges of using a document for pecuniary advantageand two of theft. He broke into cars, stole EFTPOS/credit cards, and used them for anumber of purchases. He illegally obtained several hundred dollars. On appeal,Mallon J imposed a start point of 12 months' imprisonment.7 Doctor v Police [2017] NZHC 1084.8 Rako v R [2015] NZCA 463.[20] In Rako v R, Mr Rako was convicted of 11 charges of using a document forpecuniary advantage, theft, conversion of a motor vehicle, taking a motor vehicle, anddriving while forbidden. Mr Rako took a house-guest's debit card and made purchasestotalling some $1,800. The Court of Appeal concluded "a starting point in a range from12 to 18 months' imprisonment has been applied where credit or debit cards areunlawfully used on multiple occasions resulting in losses of the order of $2,000 to$6,000".9 The Court also noted culpability was not to be determined solely byreference to the amount taken but also to "the multiplicity of offending, its duration,the degree of premeditation, the vulnerability of the victim, and a breach of trust."10The Court considered the starting point of 18 months for the document offending was"at the top of the acceptable range" but did not disturb it, referring in particular to thebreach of trust element.[21] I have also found Linford v Police11 and Walsh v Police12 of some assistance:(a) In Linford v Police, Brewer J upheld a start point of 18 months (andnoted a higher start point would have been justified) for multiple countsof receiving and using credit cards. The offending involved fourvictims, over 40 transactions, and $4,508.58 illegally obtained.(b) In Walsh v Police, Mr Walsh was convicted of the dishonest use of hisaunt's EFTPOS card, and the theft and use of two other EFTPOS cards(one theft involved "a brief tussle"). Across all offending a total of$2,700 was taken. Woodhouse J substituted a start point of 12 monthson appeal. I note, however, that the Court of Appeal in Rako suggestedthe Judge would have been entitled to adopt a higher start point.[22] My review of these cases leads me to conclude that the 17 month start pointimposed by the sentencing Judge is too high. There are two reasons: First, it is nearthe top of the range identified in Rako for unlawful use of credit cards resulting inlosses of $2,000-$6,000. In this case, a figure of only approximately $1,600, was9 At [9].10 At [10].11 Linford v Police [2017] NZHC 2166.12 Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.taken. Secondly, this case lacks some of the aggravating factors described in Rako.There is no breach of trust element, and the offending appears to have been conductedin a relatively unsophisticated way.[23] In my view, a start point of 11 months is more appropriate. This offending isless serious than that in both Doctor and Walsh because it does not involve an actualtheft.[24] The District Court Judge applied a three-month uplift to account for bothMr Chadderton's previous convictions and failure to appear. In my view, an uplift wasappropriate; however, it requires adjustment downwards to reflect the lower start pointI consider appropriate. In my view, a one-month uplift is appropriate.[25] The District Court applied a 20 percent discount for the guilty pleas. Iunderstand these were entered at a case review hearing. Neither party has challengedthe 20 percent guilty plea discount.[26] A start point of 11 months, uplifted by one month for previous convictions,with a 20 percent (two month) reduction for guilty plea, produces an end sentence of10 months.Conclusion[27] I allow the appeal. I quash the sentence of 16 months' imprisonment. I replaceit with a sentence of 10 months' imprisonment. I do not disturb the standard andspecial post-release conditions, numbered 1 to 4 in the Pre-sentence report..................................................Walker J