WHITAKER v POLICE [2016] NZHC 232

WHITAKER v POLICE [2016] NZHC 232 [22 February 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2015-409-000127CRI-2015-409-000128[2016] NZHC 232BETWEEN TYREN WILLIAM WHITAKERAppellantAND NEW ZEALAND POLICERespondentHearing: 16 February 2016Appearances: D J Matthews for the AppellantC E Martyn for the RespondentJudgment: 22 February 2016JUDGMENT OF NATION JBackground[1] On 14 December 2015, Judge AA Couch sentenced Mr Whitaker to sevenmonths' home detention on 16 charges of accessing a computer system for adishonest purpose, one charge of obtaining by deception, and one charge of male assaults female.1[2] All of the dishonesty offences arise out of transactions on TradeMe. In late 2014, Mr Whitaker and his co-offender, Ms Stewart, entered into 17 fraudulent transactions with unsuspecting people who were the highest bidders in online auctions. They advertised items for sale which they did not possess. They did so using false names. In each case, they received payment but provided no goods to any of the buyers. The total value obtained was $2,902.33. Mr Whitaker and Ms Stewart used this money for living expenses.1 New Zealand Police v Whitaker [2015] NZDC 24887.[3] Mr Whitaker's male assaults female charge occurred while he and MsStewart were living together. When Mr Whitaker discovered Ms Stewart looking through messages on his phone, he bent the fingers of her hand back painfully and for some time. This caused soft-tissue injuries which required her hand and wrist to be put in a plaster cast.[4] Mr Whitaker now appeals on the basis that the end sentence was manifestly excessive because:(a) the starting point for the dishonesty offending was too high; and(b) the Judge erred in concluding that a sentence of community detention, community work and supervision would not achieve the statutory purposes of sentencing.Approach on appeal[5] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case.3 To allow the appeal, I must be satisfied that the sentence imposedwas "manifestly excessive".4 As has been stated:5The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.Judge Couch's sentencing[6] After recounting the factual background of Mr Whitaker and Ms Stewart's 17 joint charges, Judge Couch described these as "serious offences". Noting themaximum penalty of seven years' imprisonment, his Honour held that the gravity of this offending was "well up the scale". He described it as "a well organised scheme2 Criminal Procedure Act 2011, s 250(2).3 Criminal Procedure Act 2011, s 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 Larkin v Ministry of Social Development [2015] NZHC 680 at [26] per Toogood J.of systematic deception relying on the anonymity of a pseudonym and the Internet",and found that each of the co-offenders were equally culpable. Accordingly, JudgeCouch adopted a starting point of 15 months' imprisonment.6 He uplifted this starting point by three months to reflect the aggravating feature of "a serious element of premeditation". He noted that Mr Whitaker and Ms Stewart had advertised the goods and allowed the auctions to run to completion, knowing that they would never provide the goods offered and that money was to be dishonestly obtained.[7] Judge Couch then considered Mr Whitaker's individual charge of maleassaults female, the victim being Ms Stewart. His Honour noted that Ms Stewart had"written extensively to the Court seeking to minimise [Mr Whitaker's] culpability in relation to that offence", and her apparent forgiveness of him. However, Judge Couch found that this was a significant assault committed whilst on bail, and accordingly uplifted the starting point by a further month's imprisonment.7[8] In terms of mitigating features, Judge Couch recorded Mr Whitaker's promptguilty pleas, lack of previous convictions, and his inference that Mr Whitaker was aperson of "at least acceptable character if not necessarily good character".8 His Honour reduced the sentence by five months (just over a 26 per cent discount),reaching the end sentence of 14 months' imprisonment.[9] Judge Couch then considered whether a community-based sentence would be an appropriate alternative to imprisonment. Although the pre-sentence report recommended community detention and supervision with community work for Mr Whitaker, the Judge found the gravity of his offending was such that this sentence level would not achieve the statutory purposes of sentencing. In particular, his Honour was concerned that the purposes of denunciation and deterrence would not be achieved, clarifying:9Dishonest conduct such as yours through the Internet is very easy to commit and often difficult to prove. The message must be sent that it is totally unacceptable and will not go without appropriate punishment. Having said6 New Zealand Police v Whitaker [2015] NZDC 24887 at [4]-[5].7 At [7].8 At [9].9 At [13].that I am satisfied that home detention would be an appropriate alternative to imprisonment.[10] Consequently, the Judge imposed a sentence of seven months' homedetention, with a special condition and an order for reparation.SubmissionsAppellant[11] Mr Matthews, for Mr Whitaker, submitted that the ultimate starting point of18 months' imprisonment was manifestly excessive, as the offending was notparticularly sophisticated (the offenders used their own names and bank account details to set up the TradeMe accounts), the offenders did not target particularly vulnerable individuals or exploit a relationship of trust and the total loss was comparatively low.[12] Drawing an analogy between the dishonest use of a computer and unlawful credit/debit card use, Mr Matthews submitted that this offending was less serious than examples of credit card fraud. He therefore submitted that the appropriate starting point was between nine and 12 months.[13] Mr Matthews further submitted that the Judge erred in concluding that a sentence of community detention, community work and supervision would not achieve the statutory purposes of sentencing. As Mr Whitaker had no previous convictions, this was not a case where previous sentences had failed to denounce and deter his conduct. Mr Matthews submitted that the sentence recommended by the pre-sentence report would have curtailed Mr Whitaker's liberty, required him tomake amends to the community for his actions and provided the necessary structure and support to avoid reoffending. He submitted that the sentencing Judge failed tohave regard to the sentencing principle that the Court "must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in section 10A".1010 Sentencing Act 2002, s 8(g).[14] It was also submitted that the Judge gave no consideration to Mr Whitaker'sdiagnosis of depression and anxiety (detailed in the pre-sentence reports before the Court) and how this might render a sentence of home detention disproportionately severe in the circumstances.[15] As Mr Whitaker will have served two months of home detention by the time this appeal is heard, Mr Matthews submitted it would be appropriate to substitute community work and supervision if the Court were minded to allow this appeal.Crown[16] Ms Martyn, for the Crown, submitted that the end sentence of seven months'home detention was within the range available to the sentencing Judge and not manifestly excessive. Taking into account the aggravating factors of premeditation, duration of offending, extent of individual and general loss, Ms Martyn submitted that the ultimate starting point of 18 months was stern and indeed top of the range but within the available range.[17] Ms Martyn submitted that Judge Couch was entitled to place significant emphasis on the statutory purpose of general deterrence and to conclude that a community-based sentence would not achieve the statutory purposes of sentencing. Ms Martyn further submitted that the Judge took into account Mr Whitaker'spersonal circumstances, including the absence of prior convictions, and that this was reflected by the sentence being commuted from imprisonment to home detention.AnalysisStarting point[18] There is no tariff case for dishonesty offending. However, in R v Varjan, the Court of Appeal provided some guidance as to how to approach such offending:1111 R v Varjan CA97/03, 26 June 2003 at [22].Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.[19] In Rako v R, the Court of Appeal de-emphasised the amount defrauded, stating that this is not determinative of the seriousness of the offending:12Culpability is not to be measured solely or even primarily by reference to the amount at issue. Other aggravating factors are relevant. In particular, we refer to the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.[20] Mr Whitaker and his co-offender's offending lasted for three weeks and, although certainly persistent and premeditated, it was a fairly crude scheme. In terms of exploitation, it can be contrasted with Rako's "cynical breach of the trust thevictim had placed in him" and the continued deceit through fabrication designed to conceal his offending and delay the victim's reporting the matter to the Police.13That offending, credit card fraud against a young American tourist, vulnerable in that she was travelling alone, warranted an 18 month starting point.[21] Mr Whitaker's offending was also not as culpable as the targeting of a vulnerable victim in Turner v R, where the co-offenders bullied a 72 year old man with a brain tumour into giving them his bank card, which they used to withdraw some $5,000 over 19 transactions. These aggravating factors (the taking advantage of a vulnerable victim and bullying tactics) fully justified a starting point of 18 months.14 The Court of Appeal has more recently indicated this starting point could have been even higher.15[22] This offending was nevertheless aggravated by its multiplicity, its three-week duration, and the degree of premeditation which must have been involved. The items listed for sale were described as antiques. Alongside the description of the items, there was a professional-looking photograph which the defendants had copied12 Rako v R [2015] NZCA 463 at [10].13 At [11].14 Turner v R [2014] NZCA 454 at [10].15 Rako v R [2015] NZCA 463 at [7].from the internet. While the victims were not in such vulnerable circumstances as the victims in Rako and Turner, they were vulnerable in that they were putting their trust in the trading platform, TradeMe, and people who offered items for sale using TradeMe. Mr Whitaker and his co-offender knew they were defrauding individuals. On each occasion, the defendants interacted with potential buyers and answered questions in relation to each piece. They knew they were not defrauding some more detached larger commercial organisation such as a bank.End sentence within range?[23] With this type of offending, policy reasons were relevant to ascertaining the appropriate sentence. In R v Hayes, the Court of Appeal noted the interconnected public interests in:16(a) "encouraging the use of computers for business activity"; and(b) "providing strong sanctions against reprehensible conduct which, ifunchecked, is likely to inhibit the use of computer technology".[24] For those reasons, the Court concluded:17[Sentencing] for computer-related offences is likely to require particular emphasis on the need to hold an offender accountable for harm done both to victims and the community by his or her offending, to denounce the conduct in which the offender was involved and to deter the offender or others from committing similar offences in the future.[25] In terms of victims, this computer-related dishonesty offending not only defrauded the individual TradeMe bidders, but more generally was of a sort that would reduce public confidence in virtual trading platforms and discourage participation in the online economy. This is precisely why the Court of Appeal saw the purposes of denunciation and deterrence as so crucial in such cases as the present.18 Judge Couch's approach on this sentencing aligned with Court of Appeal authority on the gravity and reprehensibility of this type of offending.16 R v Hayes (2006) 23 CRNZ 547 (CA) at [58].17 At [59], referring to Sentencing Act 2002, s 7(1)(a), (e) and (f).18 R v Hayes (2006) 23 CRNZ 547 (CA) at [58], followed in Ashby v Police [2015] NZHC 1900 at [31].[26] Taking the nature of the offending and aggravating circumstances into account, while the starting point for the defrauding offences could properly be considered top of the range, I consider it was still within the available range.Would a less restrictive sentence be more rehabilitative?[27] A significant plank of Mr Matthews' submissions for Mr Whitaker was that acombined sentence of community detention, community work and supervisionwould have better assisted in Mr Whitaker's rehabilitation, would have assisted inprotecting the community from further offending and would have been a sufficient penalty to hold Mr Whitaker accountable for his offending. Although Judge Couch did not refer to this in his sentencing remarks, there was information before the Court which I have taken into account in considering whether a different sentence should have been imposed.[28] The pre-sentence reports indicate that the relationship between Mr Whitaker and his co-offender was problematic. The first report referred to Mr Whitaker stating that the offending was being "pinned on me" by his partner. The report said that there appeared to be "a potentially troubling dynamic between Tyren Whitakerand his co-offender, which not only relates to the offending matters but relationship issues, including to those related to power and control". The report writer said that, when she had first interviewed Mr Whitaker in September 2015, he had claimed not to know that what he did was illegal and he had unwittingly become involved in the offending. When the probation officer spoke to him again on 27 October 2015, he did a u-turn, stating that he was equally responsible for all the offending.[29] Although the report writer said the level of culpability between the two offenders was difficult to determine, she said "it may be that one of the couple exerts significant influence/pressure over the other". Her report referred to Mr Whitaker informing her initially that he and his partner/co-offender had separated but later that she too was residing at the address which was being considered for a community- based sentence. The report said Mr Whitaker's lifestyle seemed to be chaotic with very limited structure.[30] At the time of this offending, Mr Whitaker was aged 20 with no previous convictions. The co-offender and partner was aged approximately 40. She was sentenced for an additional charge of theft relating to her going to a service station on 13 March 2015 where she stole goods valued at $120. The Judge referred to that offence having occurred against a background of four previous convictions for theft in 2013.[31] The address to which Mr Whitaker was sentenced to home detention was also the address at which he would have been required to serve a sentence of community detention. The probation officer had concerns as to whether that address would be suitable. However, in her second report, she said the occupant of that address had considered that Mr Whitaker's co-offender and partner was the cause of problems and incidents that had occurred at the address earlier. This occupant had made it clear she was not welcome there any longer. It was on that basis this occupant said he would welcome his cousin back to the address. It was also on that basis the probation officer considered the address suitable for the purposes of an electronically monitored sentence.[32] Given the problematic nature of the relationship between Mr Whitaker and his co-offender, requiring Mr Whitaker to reside at the proposed address under all the constraints of a home detention sentence with the ability of the main occupant there to limit and potentially prevent meetings with the co-offender, could well have beenregarded as more likely to assist in getting Mr Whitaker's life back on track.Certainly, there would be no such control or checks if I were to now substitute a sentence of only community work and supervision as Mr Matthews submitted would be appropriate. Although Judge Couch did not refer to this in the District Court, I consider this to be another reason why home detention could justifiably have been considered the least restrictive option available to the sentencing Judge.Conclusion[33] Judge Couch was entitled to conclude that a composite community-based sentence could not achieve the most apposite purposes of the Sentencing Act (being promotion of accountability, deterrence and denunciation) and that home detentionwas the least restrictive outcome appropriate in the circumstances. I am not satisfied there was any error in the sentence imposed or that a different sentence should be imposed. I thus must dismiss this appeal and do so.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch.