WILLIAMS v NEW ZEALAND POLICE [2018] NZHC 732

WILLIAMS v NEW ZEALAND POLICE [2018] NZHC 732 [19 April 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000003[2018] NZHC 732BETWEEN TONY JOHN WILLIAMSAppellantAND NEW ZEALAND POLICERespondentHearing: 19 April 2018Appearances: D Goldwater for the AppellantS J Mallett for the CrownJudgment: 19 April 2018ORAL JUDGMENT OF DUNNINGHAM JIntroduction[1] On 8 December 2017, the appellant was sentenced to two years andtwo months' imprisonment, having pleaded guilty to a charge of burglary.1 He nowappeals this sentence, arguing that the starting point was too high and the Judge shouldhave given him further discounts.Background facts[2] At the time of the offending, the appellant had been employed by Armourguardsecurity for two and a half years. As part of his role, he regularly re-stocked an ASBATM in a laundromat shop in Rolleston. To allow that, he was provided with variouskeys and alarm codes needed to access the machine through that shop.1 Police v Williams [2017] NZDC 28197.[3] The appellant devised a plan to steal the money inside the ATM. He told thepre-sentence report writer that he had carefully selected that ATM because of thelaundromat's relatively limited security set-up. He memorised the access codes andchose a time when the ATM would contain a significant amount of money.[4] At 2.07 am on Saturday, 21 January 2017, the appellant gained unauthorisedaccess to the laundromat. He disarmed the alarm and unlocked the ATM. He removed$179,300 from the machine. He then fled the laundromat, leaving the rear of the ATMopen. He resigned from his role at Armourguard three days later.[5] Armourguard conducted an internal investigation, as did the Police. Whenspoken to by the Police, the appellant admitted he was responsible. He showed thePolice where he had buried $130,000 in his garden, and a further $10,000 in his home.In total, $141,331.90 was recovered. The remaining $37,818.10 was later repaid bythe appellant on the day of his sentencing, thanks to help from his family.District Court decision[6] The Judge noted that the appellant had a limited conviction history. His threeprior convictions were in 2007 and did not involve dishonesty. While not aggravatingthe current offending, it meant the appellant was not entitled to a discount for previousgood character.[7] The Judge also noted that the report-writer could not discern any real remorsein the appellant for the victims of his offending, which included his co-workers. Theappellant blamed his offending on his issues with alcohol. However, the Judge agreedwith the report-writer who did not consider alcohol use to be a factor in this offendingas the appellant was not intoxicated at the time of the offending. Rather, it was awell-planned heist.[8] The Judge noted that Armourguard had suffered further loss from the theft. Atthe time, he said, it had to pay a $25,000 excess on its insurance claim, and thepremiums would increase as a result of the claim. In addition, its relationship withASB, an important client, had been strained.[9] The Judge considered that the key sentencing principles were: the need to holdthe appellant accountable; to denounce the appellant's conduct; and to deter others inthe industry from such offending. He found that the aggravating features of theoffending were: the high degree of premeditation; the gross abuse of trust; and thescale of the theft. The fact that much of the money was recovered in the aftermath ofthe offending was a mitigating factor, but there remained other significant impactsfrom the offending.[10] The Judge took a starting point of three years and four months' imprisonment.He noted that he would have adopted a much higher starting point if the money hadnot been recovered.[11] The Judge then gave a six-month discount for the appellant's time on curfew,his willingness to attend restorative justice, his self-referral to the Salvation Army fortreatment and for the payment of reparation. He then applied an eight-month discountfor the appellant's guilty plea. This resulted in an end sentence of two years and twomonths' imprisonment.[12] The Judge noted that, even if the sentence had been two years or less, he wouldnot have commuted it to home detention because of the seriousness of the offending.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 It is only appropriate for this court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.32 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[14] The appellant submits that the starting point was manifestly excessive in lightof other similar cases, in particular, Cherry v Police.4 Counsel suggests that theJudge's comment that he would have adopted a higher starting point if the money hadnot been recovered implies the existence of a higher, undisclosed starting point in hisdeliberations.[15] The appellant also submits that insufficient credit was given to recognise hisco-operation and assistance to the Police. He led them directly to the hidden moneywhen confronted. Insufficient credit was also given for the payment of the reparationin full and his remorse.[16] It is submitted that the end sentence should be reduced to below two years, andleave should be given to apply for home detention.Respondent's submissions[17] The respondent submits that the sentence imposed was not manifestlyexcessive. The Judge considered a number of comparable cases in setting his startingpoint. While the present starting point was higher than in those cases, it is appropriatehere in light of the much higher amount stolen and the appellant's gross breach of trust.[18] The respondent notes that full reparation by the appellant does not mitigate thefull loss caused by the offending, including the damage to Armourguard's reputation,and the cost of completing an internal investigation.[19] The respondent submits that the Judge appropriately recognised the appellant'spersonal mitigating factors. He appropriately considered that the appellant did notshow any real remorse for the effects of the offending on Armourguard and on hisco-workers. The respondent also submits that the appellant conflates the same pointby seeking further discounts both for his "co-operation and assistance" and for paying4 Cherry v Police [2012] NZHC 1125.reparation, as the appellant's co-operation was returning the money and these factorswere recognised in the six-month discount.DiscussionWas the starting point too high?[20] There is of course no "guideline" case for burglary sentencing. As the Courtof Appeal noted in Arahunga v R, the Court has deliberately not set a tariff for burglarybecause "the range of circumstances in which the offence can be committed is sovaried".5 However, in R v Nguyen, the Court of Appeal did identify the followingfactors as relevant to the seriousness of burglary offending:6(a) the degree of planning and sophistication in the offending;(b) the nature of the premises entered;(c) the kind and value of the property stolen;(d) damage done;(e) the impact and potential impact upon occupants or owners of theproperty; and(f) the extent of the offending where multiple burglaries are involved.[21] The present offending involved a commercial premise. The value of the cashstolen was very high and the burglary was premeditated and well planned. It involveda gross breach of trust as the appellant abused his position as an Armourguardemployee and knowledge of the premises' security.5 Arahunga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].6 R v Nguyen CA110/01, 2 July 2001.[22] While the respondent has referred to the cases of Gage v R,7 and R v Angelm, 8as useful comparators, these were both robberies which did not involve the grossbreach of trust involved in the present case. Their key relevance is that they involvedrobbery of property worth a significant amount, being $45,000 and $43,000respectively. I accept, though, that they indicate that a higher starting point shouldapply here.[23] In my view, the key issues in this case are how the Court should take intoaccount the large sum taken, and the gross breach of trust, with the relevant mitigatingfactors, including that a large amount of the property was recovered and the appellantsubsequently committed to repay the shortfall with the assistance of his family. In thiscase, the appellant's role as an Armourguard security officer, who was entrusted witha great deal of confidential information which he misused to carry out the burglary,means the cases which are most analogous are Cherry v Police and R v Stevens.[24] In R v Stevens, the defendant stole $350 of copper wiring from a commercialpremise.9 He had keys and the alarm codes because he had been employed as a cleanerthere. He was stopped just after leaving and the wiring recovered. The Court ofAppeal held that a starting point of no more than 18 months' imprisonment should betaken, given the premeditation and breach of trust.[25] The present offending is far more serious than in Stevens. The amount stolenhere was far greater. It also took longer for the money to be returned, requiringArmourguard and the Police to carry out investigations. This caused suspicion to bethrown on the appellant's former co-workers. The breach of trust here was thereforehigher, and it caused Armourguard's reputation to be damaged. I consider, therefore,a much higher starting point is required.[26] In Cherry v Police, the defendant was convicted of theft by a person in a specialrelationship.10 He was a security guard whose role was to replenish the cash in ATMs.On his last day of work, he used his codes to steal $5,160 in cash from an ATM. He7 Gage v R [2014] NZCA 140.8 R v Angelm [2009] NZCA 358.9 R v Stevens [2009] NZCA 190.10 Cherry v Police, above n 4.denied taking the cash when confronted. The starting point of 18 months'imprisonment was upheld on appeal as entirely appropriate.[27] The offence in Cherry, however, had a maximum penalty of seven years'imprisonment, while burglary (which is what the appellant has been charged with),has a 10-year maximum. The fact that the appellant broke into another party'spremises at night using his knowledge of the security codes, increases the seriousnessof this offending. In addition, the amount stolen by the appellant was almost 35 timesmore than that in Cherry. These two factors in my view justify a higher starting point.[28] I do not accept the appellant's submission that through a combination ofrecovery and reparation, the starting point should be assessed as being the same inCherry because the financial loss was a nil amount. The reality is that payment ofreparation is a mitigating factor relating to the offender. It does not impact on thestarting point. It is separate from the question of recovery of goods or money stolenwhich, as here, was taken as a mitigating factor of the offending. In any event, theloss to the victim was not nil (as was acknowledged today), and as I have alreadyexplained. For this reason, I also do not accept the appellant's criticism of the Judgetaking an "unknown" starting point for the offending and then discounting it for therecovery of the cash when setting the starting point. It was a mitigating factor of theoffending which he appropriately took into account.[29] In my view, in light of the aggravating factors of the offending, which inparticular are the breach of trust, the amount taken, and the adverse effects onArmourguard and the appellant's former co-workers, the starting point was warranted.I also note that when the maximum penalty is 10 years, the starting point of three yearsand four months, seems to me to be proportionate.Should further discount have been given?[30] The six-month discount given by the Judge for mitigating factors relating tothe offender equates to a 15 per cent discount. By it, he took into account theappellant's time on curfew, his willingness to attend restorative justice, his self-referralto the Salvation Army for treatment and his payment of reparation.[31] The appellant submits that this was insufficient credit for:(a) his co-operation and assistance to the Police;(b) the full payment of reparation; and(c) his remorse.[32] In terms of the payment of reparation, the respondent submits that it does notmitigate the full loss caused by the appellant's offending to Armourguard, such as thedamage to its reputation, and the cost of the internal investigation. I accept that.Nevertheless, the payment of reparation for the balance not recovered of $37,818should be recognised as a genuine attempt to remedy the wrong done, which will nodoubt have adverse consequences for the defendant and his family. In my view, thisis a significant attempt to remedy the harm done, and as such, it should be encouragedin the sentencing process and be reflected in a meaningful and significant discount. Inthis case, it was subsumed in the 15 per cent discount which also accounted for otherfactors such as the willingness to attend restorative justice, co-operation withauthorities and willingness to address the appellant's difficulties with alcohol. In myview, the willingness to repay more than $37,000, should have been reflected in asix month discount on its own, with a further discount for the other matters.[33] I do not accept, though, that there was then a need to separately discount forremorse. There were clearly some reservations held by both the report writer and theJudge as to whether the appellant genuinely understood and was remorseful for theimpact he had had on Armourguard and its staff. To the extent that the appellant'sactions since the offending demonstrate remorse, I consider that is adequately reflectedin a larger discount for co-operation and assistance to police, full payment ofreparation, and willingness to take part in restorative justice.[34] I note that no issue was taken with the discount afforded for the guilty plea, norcould there, as it reflects almost the full 25 per cent discount available.[35] In my view, it is appropriate to give a six month discount for the willingness topay such a large sum in reparation alone, and a further five months11 to reflect theother factors. That takes the sentence to two years and five months, from which Iwould afford a further seven month discount for an early guilty plea, taking the endsentence to 22 months.[36] That takes the end sentence to a short term of imprisonment and in thosecircumstances, the appellant asks that leave is granted to apply under s 80I of theSentencing Act 2002 for home detention.[37] On this issue, I note that the District Court Judge expressed a view that giventhe scale of the offending and the aggravating features relating to it, a sentence ofhome detention would not serve the purposes and principles of sentencing, despite thefact that home detention is acknowledged to be a punitive sentence as outlined by theCourt of Appeal in R v Iosefa.12 However, I note the report writer had seen merit in asentence of home detention and considered it could address the punitive requirementsin this case.[38] I am looking at this issue from a different perspective from that of the DistrictCourt Judge. Mr Williams has now served approximately four and a half months ofhis sentence. He does not have an address immediately available and in all likelihood,even if an address were to become available, he would have spent more time in prison.[39] I consider it is likely that he will have served half his likely prison term by thetime a home detention address might be proffered. No doubt his experience in prisonhas been salutary. I consider that at this point, it is likely he has served sufficient ofhis sentence to meet those purposes of deterrence and denunciation, making itacceptable at this stage for him to serve the balance of his sentence on home detentionif an address becomes available.11 In my oral judgment I inadvertently said six months. However, it is the end sentence whichprevails, not the methodology by which it was reached.12 R v Iosefa [2008] NZCA 453.Conclusion[40] I have found that the discount for mitigating features in this case did notadequately reflect the importance of encouraging meaningful offers of reparation tobe made where property offences occur.[41] Accordingly, the appeal is allowed and the sentence of two years and twomonths is quashed and in its place I impose a sentence of one year and 10 months'imprisonment, standard release conditions to apply until sentence end date. Leave toapply for home detention is granted.Solicitors:Raymond Donnelly & Co., ChristchurchDavid Goldwater, Barrister, Christchurch