Abbott v The Queen

[2015] NZCA 181

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/2015
[2015] NZCA 181

BETWEEN	KARL JOHN ABBOTT Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	J A Westgate for Appellant Z R Hamill for Respondent
Judgment:	19 May 2015 at 2:30pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

1. Mr Abbott is a mechanic.  His method of fixing the complainant’s automatic transmission was to leave the faulty one in place, say he had replaced it with a reconditioned unit, and bill the complainant (and his insurer) $966.

2. Unsurprisingly, the mechanical problem persisted. Unsurprisingly also, the complainant took the vehicle back to Mr Abbott.  The problem continued.  The complainant then took a claim to the Disputes Tribunal.  But Mr Abbott won.  In part, that was because he proved the replacement transmission by presenting the referee with a letter purporting to show purchase of a reconditioned unit from a third party.  The letter was a concoction by Mr Abbott.

3. The frustrated complainant took the car to a new mechanic.  He discovered the transmission numbers matched the vehicle.  If a reconditioned transmission had been installed, match they would not.  Mr Abbott’s fraud unravelled.

4. Mr Abbott was charged with two counts of dishonestly using a document, and one of attempting to pervert the course of justice.  The former related to the invoice that he had presented to the complainant and his insurer; the latter to the concocted letter produced to the referee at the Disputes Tribunal.

5. Part way through a District Court jury trial before Judge Turner, Mr Abbott pleaded guilty to these charges and was sentenced to seven months’ home detention.[1]

   [1]R v Abbott [2015] NZDC 4415.

6. He now appeals against that sentence.

Sentencing decision

1. Judge Turner took, as the lead offence, the charge of attempting to pervert the course of justice.  He took the view that the starting point range for that offence should be between ten and 15 months’ imprisonment.  The Judge opted for 12 months as his starting point.  He uplifted that by four months for the two other charges of dishonestly using a document.  He uplifted the sentence again by two months, because of Mr Abbott’s large number of prior convictions for dishonesty.  At this stage, then, 18 months.  Mr Abbott had offered to pay reparation of $3,000 for emotional harm to the victim, and to repay the insurer $766.  The Judge accepted, contrary to the pre-sentence report, that some remorse was exhibited.  The lateness of the guilty pleas enabled a discount of only five per cent for that.  Taken together, a discount of three months was given.  The net result was an end sentence of 15 months’ imprisonment.  The Judge then commuted that to a sentence of home detention of seven months.

Appeal

1. Mr Westgate, appearing for Mr Abbott, did not contest the choice of lead offence, or the starting point of 12 months adopted for it.  However he submitted that the uplift of four months for the other two charges was excessive and disproportionate.  The victim was not as vulnerable as suggested, having lived in New Zealand for six years and was employed as a taxi driver in Queenstown.  An uplift of no more than two months would have been appropriate.  Further, the uplift of two months for historical dishonesty offending was excessive because the offending was at least ten years old and was outweighed by references supplied to the Court showing Mr Abbott was capable of working honestly and appropriately within his area of expertise.  Finally, the three month discount for reparation, remorse and the guilty plea was insufficient.  Counsel submitted a sentence of five to six months’ home detention would have been appropriate.

Discussion

1. No possible basis exists on which the sentence in this case should be altered.

2. First, in our view the starting point of 12 months on the charge of attempting to pervert the course of justice was lenient.  Mr Westgate described the attempt as “ham-fisted”.  We do not agree.  The attempt succeeded.  The referee was deceived by the letter concocted by Mr Abbott.  As the sentencing Judge noted, the referee placed weight on it in dismissing the complainant’s claim. 

3. Perverting the course of justice is a serious offence.  A starting point of 18 months’ imprisonment would have been appropriate, and consistent with other authority.[2]  This sort of offending impairs the proper administration of justice.  Due denunciation and deterrence are fundamental in such cases.  No mitigating considerations diminish Mr Abbott’s culpability for this offence. 

   [2]Clarke v R [2011] NZCA 336 and Fitzgerald v R [2012] NZCA 558. In Manukau v R [2013] NZCA 217 a two and a half year starting point was adopted in a case involving a concocted text message and affidavit to show a fabricated complaint.

4. Secondly, the uplift of four months, bearing in mind the other two offences committed by Mr Abbott, was orthodox.  It cannot sensibly be objected to.

5. Thirdly, the further uplift of two months reflecting Mr Abbott’s prior offending was also entirely appropriate.  The offending in this case occurred in 2012.  In 2005 Mr Abbott was convicted of two counts of theft of a motor vehicle and one count of obtaining property by deception.  A term of imprisonment of one year (with leave to apply for home detention) was imposed.  In 2004 he was convicted of six counts of using a document for a pecuniary advantage.  In 1998 he faced four counts of receiving property of over $5,000 in value and a further count of receiving property below that value. 

6. The events in 2012 giving rise to the present convictions, set in that context, demanded at least the response given by the sentencing Judge.  No complaint can be made about the two month uplift applied. 

7. Fourthly, the five per cent discount for Mr Abbott’s guilty plea, made only during the course of trial and after the complainant had given evidence, was (as Ms Hamill submitted) generous in light of the Supreme Court’s observation in Hessell v R that real justification is required before any allowance is made after trial has commenced.[3]  As to remorse, Mr Abbott may have written a letter of apology, and certainly the reparation has been paid, but the pre-sentence report expresses only “some remorse”, and it appeared to be “more about the stressful situation he has put himself and his partner in than about any harm caused to the victim.”  In these circumstances the further 12 per cent discount for remorse and reparation could be regarded as generous. 

   [3]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [76].

8. Finally, regardless of the internal composition of the sentencing decision, the ultimate endpoint was entirely appropriate, and not excessive.

Result

1. The appeal against sentence is dismissed.

1. We observe that appeals proposing tinkering with home detention or other community-based sentences are not to be encouraged.

Solicitors:
Crown Law Office, Wellington for Respondent