GOLDSWORTHY v NEW ZEALAND POLICE [2016] NZHC 1973

GOLDSWORTHY v NEW ZEALAND POLICE [2016] NZHC 1973 [23 August 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2016-485-41[2016] NZHC 1973BETWEEN JASON PETER GOLDSWORTHYAppellantAND NEW ZEALAND POLICERespondentHearing: 23 August 2016Counsel: V C Nisbet for AppellantR Georgiou for RespondentJudgment: 23 August 2016JUDGMENT OF WILLIAMS JIntroduction[1] Mr Goldsworthy was sentenced on 20 May 2016 to two years and onemonth's imprisonment on the following charges, to which he had pleaded guilty:(a) taking a document for pecuniary advantage (Crimes Act s 228(1)(a));(b) theft (Crimes Act s 223(d));(c) attempting to use a document for pecuniary advantage (Crimes Act s 28(1)(b)); and(d) using a document for pecuniary advantage x2 (Crimes Act s 228(1)(b)).[2] At the same time, his sentence of home detention on unrelated dishonestycharges was replaced with nine months' imprisonment to be served concurrently.[3] He appeals on the basis that the sentence was manifestly excessive, and in particular that there was no discount for the early guilty pleas.Facts[4] Mr Goldsworthy made contact with the victim of this offending through social media, and arranged to stay on his farm property. He arrived at the property on Tuesday 21 July. During the day, the victim left the house to work on the farm, leaving Mr Goldsworthy alone. At some point during his stay, Mr Goldsworthy located two cheque books, and removed two cheques from each of them, then put the cheque books back. He also took $481 in cash from a travel bag.[5] On the morning of 23 July, Mr Goldsworthy located the victim's credit card,and attempted to use it to access a website to the value of $15. The victim received a call from his bank alerting him that his card was being used. The victim returned home and confronted Mr Goldsworthy, who admitted taking the card and apologised. The victim then discovered that his travel bag had been searched, and confronted Mr Goldsworthy about taking the money. This was denied.[6] The victim told Mr Goldsworthy to leave and took him to Gore. He returned home, and discovered that two of the cheques were missing. He called his bank and cancelled the cheques. Mr Goldsworthy presented the other two cheques to obtain funds that he deposited into his own account, on 23 and 27 July. The amounts were $447.80 and $457 respectively.District Court decision[7] Mr Goldsworthy preferred to be sentenced on the spot, as it were, and so declined an adjournment for a further sentencing report. He was represented by the duty solicitor. Judge Tomkins' sentencing notes cover Mr Goldsworthy'sbackground in some detail but are very brief on the sentencing calculation itself. He noted the following:(a) Mr Goldsworthy had been sentenced to home detention on 29 October 2015 on a range of fraud charges, and had served about half thatsentence. He had removed the electronic monitoring equipment and failed to return to his detention address;(b) Mr Goldsworthy had written to the Court advising that he had been diagnosed with a terminal illness and that he sought to be sentenced without an updating pre-sentence report. He expected that he might die in prison;(c) Mr Goldsworthy had advised that he was about to receive an ACC lump payment which would be available to meet any reparation orders;(d) Mr Goldsworthy had over 400 previous convictions for fraud offending, and had served a significant number of terms of imprisonment. Despite requests, he had never received the benefit of any rehabilitation programme; and(e) Mr Goldsworthy accepted that a term of imprisonment would be imposed.[8] The Judge found that in the circumstances, imprisonment was the least restrictive outcome capable of serving the need for public protection. He imposed asentence of two years and one month's imprisonment on each charge, to be servedconcurrently. He said that this sentence would ensure that he would appear before the Parole Board, and that the Board may assist him to access rehabilitative options which might not otherwise be available. He also ordered reparation of $1,384. Finally, he substituted the earlier sentence of home detention and community workfor nine months' imprisonment, to be served concurrently.Appellant's submissions[9] Mr Nisbet provides the following by way of additional factual background in relation to Mr Goldsworthy's failure to comply with the home detention sentence:(a) Mr Goldsworthy became frustrated with the Corrections Department because it was not taking seriously his concerns about his supervising officer;(b) Mr Goldsworthy believed that he was going to be physically hurt, because members of the Tokoroa criminal community regarded him as a nark; and(c) He became frustrated, removed his bracelet and left the area.[10] In relation to the sentence for the recent offending, counsel submits that the sentence was manifestly excessive, and in particular, the Judge failed to give credit for the early guilty pleas.Crown submissions[11] The Crown submits that regardless of the methodology used, the overall sentence was available to the Judge. Although the Judge did not adopt a starting point, or state uplifts or discounts, he did discuss relevant issues; in particular Mr Goldsworthy's previous convictions.[12] Counsel points to the case of Rako v R,1 in which the appellant appealed against a starting point of 18 months for the lead offending of 11 charges of using a document to obtain a pecuniary advantage. The Court in that case referred to a number of other cases and concluded the 18 month starting point was at the high end of the range but not manifestly excessive.[13] Counsel submits that in this case, a 20 month starting point would be appropriate, taking into account:(a) the degree of premeditation (using a website to befriend the victim);(b) the multiplicity of the offending (cheques, cash and credit card); and1 Rako v R [2015] NZCA 463.(c) the breach of trust (the victim trusted him to stay in his home).[14] Counsel submits that there should then be a significant uplift of six to eightmonths for Mr Goldsworthy's significant criminal history which is almost exclusively dishonesty offending of the same type as in the present matter. The fact that he was on home detention at the time of the offending would warrant a further uplift.[15] Mr Goldsworthy was, however, entitled to a 20-25 per cent discount for his guilty pleas.[16] Counsel submits that the end sentence would be approximately 24 months. Also, the nine months that was substituted for the home detention sentence could have been imposed cumulatively rather than concurrently, because the two sets of offending were not related. Accordingly, the sentence was within range.Discussion[17] In Rako v R, the Court of appeal noted that there is no guideline case for this type of offending, because it can exist in a wide variety of circumstances. However, the Court helpfully discussed the following cases:2(a) Keenan v Police: 12 month starting point for two charges of fraudulently using a credit card and cashflow card in 31 transactions involving $4,700;3(b) Walsh v Police: 12 month starting point for various fraud offences including four of dishonestly using an Eftpos card over seven days to withdraw a total of $2,050;4(c) Edwards v Police: 18 month starting point for unlawfully presenting cheques on 10 separate occasions over one month, to a total value of $6,000;5 and2 At [9].3 Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007.4 Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.(d) Tiopira v Police: 30 month starting point for 33 transactions over 14 days using several stolen cards, totalling $11,600.6[18] The Court of Appeal noted that in the first three cases, the Judge would have been entitled to adopt higher starting points. It said that the starting point should not be determined only by reference to the amount in issue – other aggravating factors such as the multiplicity of the offending, its duration, the degree of premeditation, the vulnerability of the victim and the existence of a breach of trust are also relevant.7[19] In Rako itself, the appellant had befriended a tourist, who stayed with him. During this time, he took her debit card and used it while she was sleeping. He took around $1,800. The Court of Appeal noted the additional aggravating factor in that case, that when the victim became aware of the discrepancies in her account, Mr Rako deceived her by saying that his brother worked for the "Fraud Department"and would help her recover the money. He then told her that the Fraud Department had found the person responsible and that the money would be returned in a couple of days. This was an additional level of premeditation and breach of trust, and successfully delayed the victim in reporting the matter to the police. Accordingly, the Court viewed the 18 month starting point as at the top of the acceptable range.8[20] Given these cases, a starting point of 20 months is too high, even taking into account the premeditation, breach of trust, and multiplicity of the offending. The total amount taken is of course an important factor even if not the only one. That amount – $1,384 – is less than in all of the cases discussed in Rako and in Rakoitself. Furthermore, in this case, premeditation, breach of trust and multiplicity of offending were all present to a somewhat lesser degree than in Rako, where the fabrication about the brother was particularly relevant to culpability. Accordingly, in this case a starting point of 12 months was more appropriate.5 Edwards v Police [2012] NZHC 737.6 Tiopira v Police [2012] NZHC 1720.7 Rako, above n 1, at [10].8 At [11].[21] As to the personal aggravating and mitigating factors, Crown counsel is correct that the numerous similar previous convictions must be taken into account. An uplift of 50 per cent, or six months, is at the high end, but appropriate.[22] From this sentence of 18 months, it is appropriate to discount 25 per cent forMr Goldsworthy's guilty plea. That would bring the end sentence to 13½ months.Conclusion[23] It follows that the sentence adopted in the District Court was manifestly excessive and in error. The appeal is allowed, the sentence is quashed and a sentenceof 13½ months' imprisonment is substituted.Williams JSolicitors:V C Nisbet, WellingtonCrown Solicitor, Wellington