Anderton v New Zealand Police [2018] NZHC 437

Anderton v New Zealand Police [2018] NZHC 437 [14 March 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-3[2018] NZHC 437BETWEEN JOSHUA KENNETH ANDERTONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 March 2018Appearances: G Prentice for AppellantM Dillon for RespondentJudgment: 14 March 2018JUDGMENT OF TOOGOOD JIntroduction[1] Joshua Kenneth Anderton, aged 23, pleaded guilty to 34 dishonesty relatedcharges including causing loss by deception (involving over $1,000),1 causing loss bydeception (involving $500 to $1,000),2 obtaining by deception (involving $500 to$1,000),3 obtaining by deception (involving over $1,000),4 accessing a computersystem for a dishonest purpose,5 and making a false statement to police.6[2] Mr Anderton was sentenced by Judge T R Ingram in the Hamilton DistrictCourt to 18 months' imprisonment.7 He now appeals against the Judge's refusal toconvert the prison sentence to one of home detention.The offending[3] The events giving rise to the charges extended to well over a year. The natureof the offending is apparent from the charges which speak, somewhat eloquently, ofMr Anderton's lying and deceptive behaviour. Most of the charges arise out oftransactions on TradeMe or other online trading platforms. Mr Anderton advertiseditems for sale using a number of different accounts and bank accounts. On oneoccasion, he accessed and changed his mother's TradeMe password and beganfraudulently trading from her account. In each case, he received payment but providedno goods to any of the buyers. The total amount fraudulently obtained by Mr Andertonis $48,405.District Court decision[4] Judge Ingram listed a number of aggravating features of the offending,including the prolonged period of time over which the offending occurred; the multiplevictims; the serious breach of trust and the substantial amount involved in the fraud.A particularly aggravating factor was that "a good half" of the offences occurred while1 Crimes Act 1961, ss 240(1)(d) and 241(a): maximum penalty of seven years' imprisonment.2 Sections 240(1)(d) and 241(b): maximum penalty of one year imprisonment.3 Sections 240(1)(a) and 241(b): maximum penalty of one year imprisonment.4 Sections 240(1)(a) and 241(a): maximum penalty of seven years' imprisonment.5 Section 249(1): maximum penalty of seven years' imprisonment.6 Summary Offences Act 1981, s 24: maximum penalty of three months' imprisonment.7 New Zealand Police v Anderton [2017] NZDC 27546.Mr Anderton was on bail for the first set of dishonesty offences. The District CourtJudge described the offending as "a pretty determined and reasonably sophisticatedeffort to hoodwink people and take their money". Altogether, the Judge adopted astarting point of two-and-a-half years' imprisonment.8 On behalf of Mr Anderton,Mr Prentice takes no issue with the starting point. That is not surprising, because itcould have been longer.[5] In terms of personal mitigating features, Judge Ingram reduced the sentence bysix months for Mr Anderton's guilty pleas and a further six months to account for hisyouth, relatively good record  or at least an absence of relevant prior offending  andan offer to pay reparation. That resulted in the Judge reaching a sentence of 18 months'imprisonment as appropriate. The Judge declined to order home detention in lieu ofimprisonment given the nature of the offending and fact that Mr Anderton continuedto defraud while on bail.Approach on appeal[6] Mr Anderton appeals as of right.9 Section 250 of the Criminal ProcedureAct 2011 requires that the appeal be allowed if the Court is satisfied that, for anyreason, there is an error in the sentence imposed and a different sentence should beimposed.10 In any other case the appeal must be dismissed.11 To allow the appeal, theCourt must be satisfied that the sentence imposed is "manifestly excessive".12 Anappellate court will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles.Submissions[7] For the appellant, Mr Prentice submits that the District Court made an error oflaw by not properly considering whether the purposes and principles of sentencingmight be met by a sentence of home detention. He argues that the Judge focusedentirely on the need to denounce the appellant's offending because he had offended on8 New Zealand Police v Anderton [2017] NZDC 27546 at [19].9 Criminal Procedure Act 2011, s 244.10 Section 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.bail. Mr Prentice says the Judge did not consider other factors in deciding whether ornot home detention was appropriate. Mr Prentice submits that as Mr Anderton hadnot previously received a term of imprisonment and did not have any relevant priorconvictions, the purposes and principles of sentencing could have been met by asentence of home detention.[8] In his submissions Mr Dillon, for the respondent, refers to the decision in Tonksv New Zealand Police13 where the appellant was denied home detention primarilybecause he committed further fraud offending while on bail for fraud charges.Discussion[9] Section 15A(1) of the Sentencing Act 2002 authorises the imposition of homedetention if:(a) the court is satisfied that the purpose or purposes for which sentenceis being imposed cannot be achieved by any less restrictive sentenceor combination of sentences; and(b) the court would otherwise sentence the offender to a short-termsentence of imprisonment.A short-term sentence of imprisonment is one for two years or less.[10] Whether a sentence of short-term imprisonment should be commuted to homedetention conventionally involves a two-step process.14 First, that the appropriatesentence would be two years' imprisonment or less; and then the Court must exercisea discretion whether to commute the sentence to home detention. There is nopresumption that imprisonment or home detention is to be preferred.15 The Judge mustundertake an evaluative exercise considering the purposes and principles of sentencingrecorded in ss 7 and 8 of the Sentencing Act.[11] As I have said, Mr Prentice submits that the District Court Judge focussed"entirely on the need to denounce the fact that the appellant had offended on bail anddid not consider any other purposes and principles of sentencing". I acknowledge that13 Tonks v New Zealand Police [2017] NZHC 880.14 R v Vhavha [2009] NZCA 588.15 Osman v R [2010] NZCA 199.an assessment that focusses only on one purpose to the exclusion of others whenconsidering s 15A(1) amounts to an error of law,16 but I do not accept Mr Prentice'ssubmission that there was an error here. The relevant paragraphs in the Judge'sSentencing Notes are these:[16] I have to impose the least restrictive outcome that is appropriate in thecircumstances and I have already expressed my view that in thesecircumstances a sentence of imprisonment is the only sentence whichadequately meets the needs of the situation. It is a serious aggravating factorthat this second set of offending occurred whilst on bail an detail is whatmakes the difference between home detention being considered as anappropriate sentence and excluding that possibility. In my view, people whocynically use the opportunity on bail to continue to offend in the same waycannot look to the Courts for a sentence of home detention.[17] I need to take into account the extent of the losses and the harmresulting from your behaviour, the trust that was placed in you which has beenabused, the vulnerability of the victims to your predatory behaviour. It is allpremeditated. It is not as though you come before the Court with a cleanrecord, it is true that that [sic] you do not have a record for dishonesty before,but you have been before the Courts and you have not even completed thesentence imposed in relation to the driving offences, a relatively light sentenceof community work and you could not even do that. I take into account thefact that you are relatively young, you are entitled to credit for a guilty plea,you have made an offer to pay reparation and I take all those matters intoaccount.[12] While I accept that the Judge said that the serious aggravating factor ofoffending while on bail was what makes the difference between home detention beingconsidered as an appropriate sentence and excluding that possibility, that observationneeds to be considered in the light of what the Judge then said at [17], where hereferred to the extent of the losses and the harm resulting to the victims; the trust whichhad been abused; the vulnerability of the victims; and premeditation.[13] It is apparent that Judge Ingram properly turned his mind to those factors inconsidering other purposes and principles of sentencing, including the need to holdMr Anderton accountable; the need to impose the least restrictive outcome that isappropriate in the circumstances; and the need to consider the effect of the offendingon the victims.16 Manikpersadh v R [2011] NZCA 452.[14] Even if Judge Ingram did make an error by confining his remarks at paragraph[16] to the continued offending after Mr Anderton had been arrested, charged andbailed on the first set of offending of a similar kind, the Judge was entitled to giveconsiderable weight to that factor. A recent history of failure to comply with a sentenceof home detention or other Court orders, such as grant of bail, may tip the balance infavour of imprisonment for deterrent reasons.17 Here, a deterrent sentence was plainlycalled for because of the nature and course of the offending. Moreover, in my view,the Judge treated Mr Anderton leniently by allowing a discount for his youth andrelatively good record.[15] This was sophisticated, carefully planned offending not susceptible toconsiderations of youthful impetuosity or a failure to fully appreciate theconsequences of the offending. The way in which the offending was set up and itsrepetitive nature, particularly after the initial arrest, negated such mitigating effects ofMr Anderton's past behaviour as might have been recognised and disqualified him, inmy view, from any youth discount.[16] The integrity and convenience of online trading of the kind giving rise to thisoffending are seriously undermined if participants do not deal with each other honestlyand in good faith. Exploiting the trust of others by deliberate dishonesty and deceptionwarrants a deterrent approach to sentencing which would not have been reflectedadequately in this case by a sentence of home detention.Conclusions and result[17] I consider the Judge made no error in his approach; but if he did, then the errorwas not one which gave rise to a miscarriage of justice because plainly this was a casewhich called for a term of imprisonment. Bearing in mind that the starting point couldwell have been higher and that the Judge allowed discounts from the starting pointwhich I consider to have been unjustified, a proper approach in this case would haveresulted in an inevitable sentence of imprisonment and probably for more than twoyears.17 Hampton v Police [2014] NZHC 2423.[18] I dismiss the appeal..Toogood J