CHAPMAN v NZ POLICE and DEPARTMENT OF CORRECTIONS [2020] NZHC 2108

CHAPMAN v NZ POLICE and DEPARTMENT OF CORRECTIONS [2020] NZHC 2108 [20 August 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000080[2020] NZHC 2108BETWEEN VINNIE LEE CHAPMANAppellantAND NEW ZEALAND POLICE andDEPARTMENT OF CORRECTIONSRespondentHearing: 20 August 2020Appearances: R Ward for the AppellantK Courteney for the RespondentJudgment: 20 August 2020JUDGMENT OF WOOLFORD JSolicitors: Raymond Donnelly & Co (Office of the Crown Solicitor), ChristchurchCounsel: R Ward, Barrister, Christchurch[1] On 27 May 2020, Vinnie Lee Chapman was sentenced to two years and fourmonths' imprisonment on a variety of charges. He was also re-sentenced on othercharges to a cumulative four months' imprisonment, making the total sentence one oftwo years and eight months' imprisonment. He now appeals against the sentence asbeing manifestly excessive.Factual background[2] On 15 May 2018, Mr Chapman was sentenced to 90 hours' community workfor operating a motor vehicle with sustained loss of traction. His reporting oncommunity work was poor and he eventually disengaged with the Department ofCorrections. At the time of his disengagement, 62 hours were owing.[3] On 12 September 2019, Mr Chapman was sentenced to three months'community detention and 12 months' intensive supervision on three charges of failingto answer court bail, two charges of wilful damage, one charge of driving whiledisqualified and one charge of possession of an offensive weapon. The wilful damagecharges related to breaking two windows in a car belonging to his partner and, onanother occasion, breaking a window of his partner's flat and using a knife to cut hispartner's bed base after flipping it up against a wall. The charge of possession of anoffensive weapon related to a tomahawk found under the driver's seat of a car in whichMr Chapman was a passenger in the right rear seat, immediately behind the driver'sseat.[4] The community detention to which Mr Chapman was sentenced required himto be present at his curfew address from 8.00 pm until 6.00 am. He returned late ontwo occasions and then did not return at all from 20 October 2019. Mr Chapman wasalso required to report weekly to the Department of Corrections in terms of hisintensive supervision sentence. Although he initially began the sentence well, hefailed to report on 23 October 2019 or thereafter.[5] On 6 December 2019, Mr Chapman obtained 25 Diesel watches and two watchboxes by deception. The victim was selling Diesel watches on Facebook Marketplace.Mr Chapman contacted him via Messenger. They agreed on a price of $5,500 for thesale and purchase of 25 Diesel watches and two watch boxes. It was agreed thatMr Chapman would make an internet bank transfer of $5,500 at the time of inspectionand collection of the Diesel watches and watch boxes. Mr Chapman met the victim'sgirlfriend in a car park that day. After receiving the Diesel watches and two watchboxes, Mr Chapman used his mobile phone to make what appeared to be a phone callto the ANZ Bank to transfer $5,500 into the victim's ANZ bank account as agreed.Several minutes later, the victim's girlfriend received what she believed to be a textmessage from an ANZ Bank customer representative confirming successful paymentof $5,500 into her partner's ANZ Bank account. Believing that her partner had beensuccessfully paid as agreed, she thanked Mr Chapman and left. Approximately10 minutes later, the victim checked his Facebook account and noticed he had beenblocked by Mr Chapman.[6] Then on 25 December 2019, Mr Chapman again drove while disqualified. Hisnew partner was also in the car. They had an argument and Mr Chapman stopped thevehicle. Both he and his partner exited the car. The argument escalated resulting inMr Chapman's partner slapping him in the face, followed by Mr Chapman pushingher away. He then grabbed his partner and threw her into a rock bank, causing her feetto leave the ground. She was unable to get back to her feet immediately.[7] Mr Chapman's partner then leaned in to the back seat of the car to retrieve herdog. Mr Chapman hit the windows of the vehicle multiple times before coming upbehind her and grabbing her around the neck. She could barely breathe due toMr Chapman's grip on her throat. This led to a charge of strangulation. Mr Chapmanlet his grip go and she moved to the driver's seat in the car. As a result, Mr Chapman'spartner suffered bruising to her right upper arm, a sore throat and general sorenessover her body as a result of being thrown onto rocks.[8] Mr Chapman then breached his bail on 17 January 2020 while he was found tobe in possession of a small amount of methamphetamine upon his arrest on 29 January2020.District Court sentencing[9] The sentencing of Mr Chapman took place in the Christchurch District Courton 27 May 2020 before Judge A D Garland.1 At the outset, the Judge noted the eightcharges on which Mr Chapman was to be sentenced, as follows:(a) 19 October 2019: breach of community work by failing to report towork centre;(b) 21 October 2019: breach of community detention by failing to returnto curfew address;(c) 23 October 2019: breach of intensive supervision by failing to report toa probation officer;(d) 6 December 2019: obtaining 25 Diesel watches and two watch boxesby deception;(e) 25 December 2019: disqualified driving (third or subsequent) andstrangulation;(f) 17 January 2020: breach of District Court bail; and(g) 29 January 2020: possession of methamphetamine.[10] At the outset, the Judge set out the facts of the offending before turning to thepre-sentence report. He noted that there had been six family violence callouts attendedby Police — four in 2018 relating to Mr Chapman's former partner, and two in 2019relating to his current partner. The Judge noted that Mr Chapman gave no clearindication to the report writer for disengaging with the Department of Corrections, norfor committing the dishonesty offence.[11] The Judge noted that Mr Chapman said he was consuming alcohol about oncea week, but using methamphetamine daily.1 Police v Chapman [2020] NZDC 9503.[12] The report writer noted that Mr Chapman blamed his partner for abscondingfrom his community detention address as well as attacking him during the course ofthe incident on Christmas Day. The Judge noted that the report writer was of theopinion that Mr Chapman could not be relied upon to comply with either of theelectronically monitored sentencing options of community detention or homedetention. The report writer also requested that the sentences of intensive supervisionand community work be cancelled, the sentence of community detention havingexpired.[13] After referring to submissions made on behalf of Mr Chapman and the Police,the Judge found that the strangulation charge was the lead charge. It carried amaximum penalty of seven years' imprisonment. He adopted a starting point of15 months' imprisonment, which placed the offending towards the top of band one asset out in Ackland v Police.2[14] As to the charge of obtaining by deception, the Judge was of the view that itwas a highly premeditated deception which caused substantial loss for the victim. Hetherefore adopted a starting point on that charge of 12 months' imprisonment. He thenturned to the charges of breaching the sentences of community work, communitydetention and intensive supervision. The starting point he adopted for these threeoffences, considered in totality, was six months' imprisonment.[15] The Judge then referred to the remaining charges of driving while disqualified(third or subsequent), breach of District Court bail and possession ofmethamphetamine and found that overall a starting point of two months' imprisonmentfor these offences was appropriate. That resulted in an overall starting point of twoyears and eleven months' imprisonment. The Judge then allowed a reduction ofapproximately 20 per cent for Mr Chapman's guilty pleas, which resulted in a sentenceof two years and four months' imprisonment.[16] He therefore imposed a total sentence of two years and four months'imprisonment as follows:32 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.3 Police v Chapman, above n 1, at [19].(a) Two years and four months' imprisonment on the charge ofstrangulation.(b) Two months' imprisonment on each of the charges of breach ofcommunity work; breach of community detention; and breach ofsupervision, to be served concurrently.(c) Twelve months' imprisonment on the charge of obtaining bydeception, to be served concurrently.(d) One month's imprisonment on the charge of driving whiledisqualified (third or subsequent), to be served concurrently. Inaddition, Mr Chapman was disqualified from holding or obtaining adriver's licence for a period of one year.(e) Two months' imprisonment on the charge of breach of bail to beserved concurrently.(f) One months' imprisonment on the charge of possession ofmethamphetamine, to be served concurrently.[17] The Judge also cancelled the sentence of community work and intensivesupervision. In lieu of the sentence of community work, there being 62 hours owing,the Judge sentenced Mr Chapman to one month's imprisonment on the charge ofdriving with a sustained loss of traction, to be served concurrently. In relation to thecharges on which he has been sentenced to intensive supervision, the Judge re-sentenced Mr Chapman to three months' imprisonment, also to be served cumultively.[18] Overall, the sentence imposed by the Judge was one of two years and eightmonths' imprisonment. The Judge concluded by saying that in his view, that did notoffend against the totality principle.Appellant's submissions[19] Mr Chapman appeals against the sentence on the following grounds:(a) The starting point adopted by the Judge for the charge of obtaining bydeception was too high;(b) The Judge failed to adequately apply the totality principle; and(c) The Judge placed inadequate weight on his personal circumstances andthere should have been a discrete discount to reflect these.[20] Mr Chapman submits that the Judge should have reached an end sentencewithin jurisdiction for a sentence of home detention. He requests this Court, on appeal,to impose such a sentence.Discussion[21] Starting with the lead offence of strangulation, there is, in this case, a lack ofany real detail in the summary of facts. This was the last charge to which Mr Chapmanpleaded guilty. While he pleaded guilty to other charges earlier, including obtainingby deception on 26 March 2020, Mr Chapman maintained his not guilty plea on thestrangulation charge, indicating to the Court that he denied impeding his partner'sbreathing.[22] Mr Chapman's brother was killed in a road traffic accident on 21 April 2020.Mr Chapman was by all accounts quite distraught at this time because he was incustody on remand and unable to be with his family. When he appeared in court on28 April 2020, Mr Chapman indicated through counsel that he wished to make acompassionate bail application to allow him to attend his brother's funeral. On thesame day, he pleaded guilty to the strangulation charge. The District Court Judge hasrecorded on the Record of Hearing Sheet:(Pleaded G after discussions with counsel in Ct in front him on SOF and myexplanation change their to her).The next day, Mr Chapman was granted compassionate bail between 9.00 am and5.00 pm on 1 May 2020 to allow him to attend the funeral.[23] As to the offence of strangulation, the summary of facts records Mr Chapman'sexplanation as follows:I had to push her as I wanted to get away from her and she was stopping mefrom leaving. She never left her feet as a result of the push.[24] As recorded in the pre-sentence report, Mr Chapman stated that he did notstrangle his partner, but just held on to her.[25] As to the factors set out in Ackland, which are said to be relevant in assessingthe seriousness of the offending, the summary of facts does not disclose any threats,any loss of consciousness, multiple events, significant impact on others (particularlychildren), or breach of a protection order.[26] As noted in Ackland:4[30] At the lower end would be offending involving strangulation as anintentional result of pressure being applied to the throat for a brief period,potentially without any of the above factors being present. Such offendingmight attract a starting point of six months to two years' imprisonment.[27] Without necessarily endorsing the bands in Ackland, I am of the view that astarting point of 15 months' imprisonment was within the range available to the Judge.The question really is whether the initial starting point was then properly able to beincreased by 130 per cent to reflect the totality of the offending for which Mr Chapmanwas being sentenced.[28] The other major offence for which Mr Chapman was being sentenced was onecharge of obtaining by deception. There is no tariff case for sentencing fraud offendersas circumstances vary widely. The amount defrauded is obviously a factor, but cannotbe determinative of the seriousness of the offending. In Rako v R, the Court of Appealstated:5[10] Culpability is not to be measured solely or even primarily byreference to the amount at issue. Other aggravating factors are relevant. Inparticular, we refer to the multiplicity of offending, its duration, the degree ofpremeditation, the vulnerability of the victim and breach of trust. A compositeevaluation of all these factors is required.[29] A similar approach was taken in the earlier case of R v Varjan, in which theCourt of Appeal stated:6[22] Culpability is to be assessed by reference to the circumstances andsuch factors as the nature of the offending, its magnitude and sophistication;the type, circumstances and number of the victims; the motivation for theoffending; the amounts involved; the losses; the period over which the4 Ackland v Police, above n 2.5 Rako v R [2015] NZCA 463.6 R v Varjan CA97/03, 26 June 2003.offending occurred; the seriousness of breaches of trust involved; and theimpact on victims.[30] Looking at these factors, unlike virtually all other fraud offending, this is a one-off offence. Although premeditated, it was not particularly sophisticated.Mr Chapman contacted the victim via Messenger using a Facebook account in his ownname, so detection and apprehension was inevitable. There was only one victim, whowas not especially vulnerable, being a trader on Facebook Marketplace. There was nobreach of trust involved.[31] As to the impact on the victim, he stated in his Victim Impact Statement:I am lucky enough that I am living with my partner's parents in Christchurchand that I don't have to pay much rent there. I was also currently working atthe time so I had money coming in. Overall, I was very disappointed becauseI always believed that people are good and I believe Vinnie would have paidthe money into my account. This has definitely changed the way I think nowand I would only ever do cash deals now so I am sure to get the money.[32] In these circumstances, I am of the view that imprisonment is not inevitable,although there are cases where reasonably substantial terms of imprisonment havebeen imposed for similar amounts. These usually involve multiple offences, however.[33] In the present case, the Judge adopted a "starting point" of 12 months'imprisonment on the charge of obtaining by deception. It is, however, moreappropriate to refer to it as an uplift because that is how the final sentence was built-up. It was not a starting point as such. The Judge said he had regard to the totalityprinciple in doing so.[34] Rather than looking at the uplift in isolation, I am of the view that it shouldbeen seen in the context that two further uplifts were applied by the Judge.[35] The Judge then applied a further uplift of six months for three offences ofbreaching community work, community detention and intensive supervision. Inrespect of all three offences, Mr Chapman disengaged with the Department ofCorrections more or less at the same time. This is a significant uplift in itself, whenthe maximum penalty is three months' imprisonment for breach of community workand six months' imprisonment for breach of community detention and intensivesupervision.[36] The Judge then applied a further uplift of two months' imprisonment for theremaining offences of driving while disqualified (third or subsequent), breach ofDistrict Court bail and possession of methamphetamine.[37] The total uplifts applied to the starting point of 15 months for the offence ofstrangulation to take account of the other offending were therefore 20 months, whichhad the effect of more than doubling the starting point for the lead offence.[38] Standing back and looking at the overall sentence, I am of the view that theadjusted starting point of 35 months' imprisonment for the offence of strangulationwas manifestly excessive. The uplifts of 12 months for the offence of obtaining bydeception and six months for the breaches of community work, community detentionand intensive supervision should be reduced to six months and two monthsrespectively.[39] These are uplifts to the sentence on the lead offence and not starting points forthe sentences themselves to be imposed for these offences. The sentences for theseoffences imposed by the Judge were appropriate.7[40] This would lead to an adjusted starting point for the offence of strangulation of25 months' imprisonment. A 20 per cent discount for Mr Chapman's guilty pleasbrings that down to 20 months' imprisonment.[41] To this sentence is to be added the cumulative sentences of four months'imprisonment imposed by the Judge on the original charges on which Mr Chapmanwas re-sentenced. This brings Mr Chapman's end sentence to one of 24 months'imprisonment.7 12 months' imprisonment on the charge of obtaining by deception, two months' imprisonment oneach of the charges of breach of community work, breach of community detention and breach ofintensive supervision, all to be served concurrently.[42] Being a short-term sentence, this sentence is able to be commuted to one ofhome detention. Mr Chapman's uncle has offered his home in Hinds, near Ashburton,as an address at which Mr Chapman could serve a sentence of home detention. Thepre-sentence report notes that the address is suitable as is Mr Chapman's uncle.[43] The writer of the pre-sentence report is, however, of the opinion thatMr Chapman is not suitable for an electronically monitored sentence as he has failedto comply with a previous sentence of community work. He has also absconded fromhis address while on community detention and has failed to report as directed in termsof a sentence of intensive supervision. The report writer also points to many instancesof Mr Chapman's failure to answer District Court bail.[44] It is here that Mr Chapman's personal circumstances can most properly betaken into account. He is aged 25 and has never been sentenced to imprisonmentbefore. He has had a difficult background in that he has been exposed to offendingand a negative peer group from a young age with little positive influences. He hasbeen involved in alcohol/drug use since a young age. Counsel characterisedMr Chapman's life, prior to being remanded in custody, as having becomeincreasingly chaotic with no fixed abode and using methamphetamine on a daily basis.He requires stability and rehabilitation. With a sentence of home detention he willhave the stability of a residential address and a measure of support from his uncle.Conditions are also able to be imposed which will require him to attend alcohol/drugrehabilitation courses at the direction of the Department of Corrections.[45] On the other hand, a lengthy prison sentence will place him at risk of becomingmore entrenched in his anti-social attitudes and less likely to positively co-operatewith rehabilitative efforts.[46] Although the pre-sentence report stated that Mr Chapman lacked remorse, theJudge noted the advice from counsel that at the time he was interviewed his brotherhad just died and it was a difficult time for him as the funeral had yet to take place.The Judge also recorded counsel's submission that Mr Chapman was now indeedremorseful.[47] This really is Mr Chapman's last chance to turn his life around. If he breachesthe conditions of home detention, I imagine the Department of Corrections will applyto have the sentence cancelled and Mr Chapman re-sentenced, in which case there willbe little option but to sentence him to imprisonment.[48] Accordingly, the appeal is allowed and the sentence of two years and fourmonths' imprisonment on the charge of strangulation is quashed. In its place,Mr Chapman is sentenced to nine months' home detention on the basis that he hasbeen in custody for almost six months awaiting sentence and the appeal hearing. Allother sentences are also quashed and replaced with concurrent sentences of homedetention, as follows:(a) Obtaining by deception Six months' home detention(b) Breach of community work One months' home detention(c) Breach of community detention One months' home detention(d) Breach of intensive supervision One months' home detention(e) Breach of bail One month's home detention(f) Driving while disqualified Two weeks' home detention(g) Possession of methamphetamine Two weeks' home detention[49] The cumulative sentences of imprisonment to which Mr Chapman wasresentenced are also quashed and replaced with concurrent sentences of homedetention, as follows:(a) Driving with a sustained loss oftractionTwo weeks' home detention(b) Breach of bail (x 3), wilfuldamage (x 2), driving whiledisqualified and possession of anoffensive weaponSix weeks' home detention[50] The disqualification from holding or obtaining a driver's licence for a periodof one year remains.[51] The sentences of home detention are on the standard conditions and thefollowing special conditions as outlined in the presentence report.(a) Not to possess, consume or use any alcohol or drugs not prescribed.(b) To attend and complete an appropriate alcohol and drug abuseprogramme to the satisfaction of a probation officer. The specificdetails of the appropriate programme shall be determined by aprobation officer.(c) Not to associate with or contact the person named in the pre-sentencereport without the prior written approval of a probation officer.(d) To attend and complete an appropriate family violence programme tothe satisfaction of the probation officer. The specific details of theappropriate programme shall be determined by a probation officer.[52] The sentence of home detention is to be served at the home detention residencespecified in the pre-sentence report. On release from prison, Mr Chapman is to traveldirectly without any deviation to the approved address and await the arrival of themonitoring company in order to be fitted with a GPS tracking device._________________________Woolford J