CHAPMAN v NEW ZEALAND POLICE [2022] NZHC 2585

CHAPMAN v NEW ZEALAND POLICE [2022] NZHC 2585 [6 October 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2022-441-18[2022] NZHC 2585BETWEEN SEAN CHAPMANAppellantAND NEW ZEALAND POLICERespondentHearing: 5 October 2022Appearances: L Grant for AppellantB McKenzie for RespondentJudgment: 6 October 2022JUDGMENT OF McQUEEN J[1] Mr Chapman was sentenced to two years and six months' imprisonment in theHastings District Court1 following his guilty pleas to a number of dishonesty offences,2breaching release conditions3 and failing to answer bail.4 He now appeals his sentenceon the grounds that the District Court Judge erred by failing to provide a full discountfor his early guilty pleas or a discount for his genuine remorse.1 Police v Chapman [2022] NZDC 13779.2 Burglary (Crimes Act 1961, s 231; maximum penalty 10 years' imprisonment); unlawful taking ofa motor vehicle (Crimes Act, s 226(2); maximum penalty two years' imprisonment); obtaining bydeception (over $1000) (Crimes Act, ss 240 and 241(a); maximum penalty seven years'imprisonment); obtaining by deception (under $500) (Crimes Act, ss 240 and 241(c); maximumpenalty three months' imprisonment); and theft (under $500) (Crimes Act, ss 219 and 223(d);maximum penalty three months' imprisonment).3 Sentencing Act 2002, s 96(1); maximum penalty one year's imprisonment or $2,000 fine.4 Bail Act 2000, s 24; maximum penalty three months' imprisonment or $1,000 fine.Background[2] The majority of Mr Chapman's offending is captured by eight obtaining bydeception charges. These charges concern the period between July and September2021 where Mr Chapman used Facebook marketplace to scam other users. Using fakeonline personas, he would contact people who had placed "wanted to buy"advertisements on the site and tell them he had the items that they were looking for.Following full or partial payment for the items, he would block or stop replying to thepurchasers. On two occasions, Mr Chapman advertised the sale of items himself,which he then failed to provide to the purchaser. He obtained $19,822.40 through thisscheme.[3] Mr Chapman also pleaded guilty to charges of burglary and the attemptedunlawful taking of a motor vehicle, both relating to incidents where Mr Chapmansought to steal two boats between 15 October 2021 and 21 October 2021.[4] The attempt charge relates to two attempts to steal the same boat, valued at$27,000, from the owner's driveway. Mr Chapman and an associate arrived at theaddress where the boat was parked and, after ascertaining that the victim was nothome, Mr Chapman attempted to hook the boat trailer to his vehicle. This was notpossible, due to a lock on the trailer, and they drove away. The next day, Mr Chapmanand his associate returned to the address, this time with a battery saw, to cut the lock.A witness passing by confronted the pair and prevented them from taking the boat.Both attempts were captured by CCTV footage.[5] Sometime in the four days following those unsuccessful attempts,Mr Chapman broke into a holiday home in Taupō and took a boat valued at $28,500.He subsequently drove to Hamilton with the boat and left it at an associate's address.[6] The theft charges relate to two petrol drive offs, where Mr Chapman filled hisvehicle with petrol and drove off without making any attempt to pay or interact withstaff members at the service station.[7] All of the offending occurred while Mr Chapman was subject to releaseconditions, and seven of the offences (including the burglary, attempted unlawfultaking and theft offending) occurred while he was on bail and following his failure toappear on 22 September 2021.District Court decision[8] The Judge took a starting point of 50 months' imprisonment, constituting:5(a) 18 months for the burglary offence;(b) two years for the obtaining by deception charges;(c) six months for the attempted unlawful taking of the boat;(d) one month for the theft charges; and(e) one month for breaching release conditions.[9] The Judge noted that Mr Chapman has been previously convicted for seriousfraud offending on four occasions, for which he had been sentenced to terms ofimprisonment.6 An uplift of six months' imprisonment for these previous convictionswas imposed.7[10] Stepping back, the Judge considered 56 months' imprisonment was too high inthe circumstances and made a totality adjustment, reducing this to an adjusted startingpoint of 50 months' imprisonment. The Judge observed that this adequately reflectedthe "seriousness and volume of the offending and the number of victims who have lostin a substantial way here."8[11] The Judge then considered that Mr Chapman was entitled to a 20 per centdiscount for his guilty pleas, and a further 20 per cent discount for his personalcircumstances.9 Applied to the starting point, this resulted in the end sentence of twoyears and six months' imprisonment.5 Police v Chapman, above n 1, at [8]–[10].6 At [5].7 At [10].8 At [11].9 At [12].[12] Even if there were other discounts available, the Judge said he would not grantthem:[13] In my view here to set the discounts at greater than 40 per cent wouldbe to lose sight of what has actually happened, and the criminality involvedhere. In any event, a 40 per cent discount is a substantial discount from thestarting point.Principles on appeal[13] The appeal is brought under ss 244 and 250 of the Criminal Procedure Act2011. If satisfied there has been an error in the sentence and a different sentence shouldhave been imposed, the Court must allow the appeal.10 In any other case, the Courtmust dismiss the appeal.11 The Court will not intervene when the sentence imposedwas within a range that can be properly justified by accepted sentencing principles.12Submissions[14] Mr Chapman says that he was entitled to the full 25 per cent discount for hisguilty pleas, as they were entered at the earliest opportunity following full disclosureand legal advice. Full disclosure was completed on 8 February 2022 and guilty pleaswere entered on 16 May 2022 at the case review hearing. Mr Chapman relies on R vVaine, where the Court of Appeal recognised that where guilty pleas were enteredpromptly after receiving proper legal advice, they should be treated as made at the firstreasonable opportunity.13[15] Mr Chapman also submits that a discount of seven per cent for his remorseshould have been afforded to him by the Judge. He says that his genuine remorse isevidenced through the cultural report and pre-sentence report provided to the court,and a letter provided by him. He also relies on the fact that he has indicated that hewould have liked to pay reparation for his offending but given he has been remandedin custody since November 2021, he has been unable to obtain employment to payback the victims of his offending.10 Criminal Procedure Act 2011, ss 250(2).11 Section 250(3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [20].13 R v Vaine [2011] NZCA 283 at [35].[16] If these discounts are accepted by the Court, Mr Chapman's counsel notes thathis sentence will be reduced to 24 months' imprisonment, being a short-term sentenceunder which he would be entitled to an early release at half of his sentence. He saysthis earlier release means he will be able to start earning money and therefore payingreparations to the victims sooner.[17] The Police opposes the appeal. It is submitted that the starting point was withinrange and the discounts afforded to Mr Chapman were generous. The Policeemphasises that, as the Court of Appeal recently confirmed in Wira v R, the focus mustbe on the end sentence,14 which in this case the Police says cannot be seen asmanifestly excessive.DiscussionGuilty Plea[18] I do not accept that the Court erred in declining to provide a full 25 per centdiscount for Mr Chapman's guilty plea. As the Police notes, the timing of the guiltyplea is only one of the relevant factors to consider. The strength of the prosecutioncase and other relevant circumstances must also be assessed.15[19] I accept the Police's submission that the prosecution case was very strong,supported by Facebook messages, Mr Chapman's bank accounts and the existence ofCCTV footage. Much of this evidence would have been known to Mr Chapman toexist even prior to disclosure, which I accept was protracted due to the fact theoffending occurred across many districts and required additional efforts to consolidate.[20] Early in the hearing, Ms Grant, counsel for Mr Chapman, proposed that shouldfurther evidence about the delays in disclosure and its impact on Mr Chapman'sinability to enter pleas be useful to the Court, she would seek an adjournment of thehearing to allow that evidence to be provided. Ms McKenzie submitted that the mattershould not be adjourned to allow the filing of further evidence as the end sentence isnot manifestly excessive, the end sentence is shorter than would have been the case if14 Wira v R [2021] NZCA 98.15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72].an orthodox approach had been adopted by the Judge, and the timing of the plea isonly one factor in the consideration of the discount for an early guilty plea. I indicatedthat I was not minded to adjourn the hearing for the purpose of permitting furtherevidence to be filed. The appellant has had the opportunity to bring such evidence andhas not done so.[21] I am satisfied the 20 per cent guilty plea discount imposed by the District CourtJudge was appropriate in the circumstances.Remorse[22] Discounts may be available for offenders where there is tangible evidence ofgenuine remorse. This is a question of fact and judgement. Mr Chapman relies on R vRowles and R v Watene.16 In both cases, expressions of remorse by the appellantcontained either in letters of remorse or expressed to report writers were seen asdemonstrative of genuine remorse by the Court of Appeal.17[23] Mr Chapman also says he wishes to pay reparations and that this is relevant toan assessment of remorse. I note that counsel for Mr Chapman submitted to theDistrict Court Judge that no reparation should be ordered as there was no realisticprospect of repayment and an order might act as a trigger for Mr Chapman to returnto crime to make ends meet, and the Judge concluded that there was "no utility "inimposing reparation.18[24] However, where there has been recidivist offending, the Court is entitled toplace little weight on expressions of remorse.19 As the District Court Judge noted,Mr Chapman has a lengthy criminal history of fraudulent offending. By my count,since November 2015, Mr Chapman has been convicted on 70 charges of accessing acomputer system with a dishonest purpose. Most recently, on 19 February 2021,Mr Chapman was convicted on 14 charges of accessing a computer system for a16 Rowles v R [2016] NZCA 208; and Watene v R [2014] NZCA 381.17 In Rowles v R, there was an additional attempt to engage in restorative justice by the appellant. Inote that in this case, Mr Chapman's initial sentencing submissions refer to his attempts to engagein restorative justice, but that an accidental omission by the Court prevented this from occurring.18 Police v Chapman, above n 1, at [14].19 Ngamo v R [2009] NZCA 512 at [9].dishonest purpose and was sentenced to 10 months' imprisonment. Mr Chapman wasreleased from prison on 14 July 2021 and that same month began the Facebookmarketplace scam for which he is currently before the Court. Albeit more dated, healso has a history of burglary, theft and unlawfully taking or interfering with motorvehicles.[25] Further, the current offending spanned several months and involved thescamming of numerous individuals in this time frame. I consider that both factors castdoubt on the genuineness of the remorse that Mr Chapman now expresses.[26] The District Court Judge did not explicitly address Mr Chapman's remorse inhis judgment. However, he had written submissions before him on the matter whichhe plainly did not accept. I consider that it was open to the Judge to decline a furtherdiscount for remorse, taking into account Mr Chapman's repeated offending of thisnature.Other matters[27] Even if I considered the discounts advanced by Mr Chapman were appropriate,I do not accept that this would have made the end sentence imposed manifestlyexcessive.[28] First, I accept, as the Police submit, the discount provided for cultural factorsof 20 per cent was on the higher side. There is little information about a clear nexusbetween his background and the offending, which further points to the discount beinggenerous.[29] Second, in any case, the sentencing method taken by the District Court Judgefavoured Mr Chapman. The Judge incorporated Mr Chapman's previous offending(typically a step two sentencing consideration)20 into the starting point assessment andthen made a reduction for totality. Given the Judge was clear that 50 monthsappropriately reflected the seriousness and volume of the total offending (and thus was20 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].the appropriate starting point from a totality perspective),21 it is likely that if the Mosesv R methodology was followed and Mr Chapman's conviction history considered atthe second step,22 the end sentence reached would have been six months greater, asseen below:Step one: adjusted starting pointStarting point (and totalityconsideration)50 monthsStep two: personal aggravating and mitigating factorsUplift for previous convictions + 6 monthsGuilty plea -10 months (20 per cent)Personal circumstances -10 months (20 per cent)End sentence 36 months[30] Accordingly, an end sentence of 30 months cannot be said to be outside of therange available to the Judge. In fact, if the discounts advanced by Mr Chapman wereapplied to the correct Moses method, the sentence would have been 30 months in anyevent.Conclusion[31] In light of the above, I do not accept that the sentence reached by the Judgewas manifestly excessive.21 Police v Chapman, above n 1, at [11].22 Moses v R, above n 20.Result[32] The appeal is dismissed.McQueen JSolicitors:Crown Solicitor, Napier for Respondent