Anderton v Police

[2018] NZHC 437

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-3

[2018] NZHC 437

BETWEEN

JOSHUA KENNETH ANDERTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 March 2018
Appearances:	G Prentice for Appellant M Dillon for Respondent
Judgment:	14 March 2018

JUDGMENT OF TOOGOOD J

Anderton v New Zealand Police [2018] NZHC 437 [14 March 2018]

Introduction

[1]    Joshua Kenneth Anderton, aged 23, pleaded guilty to 34 dishonesty related charges including causing loss by deception (involving over $1,000),1 causing loss by deception (involving $500 to $1,000),2 obtaining by deception (involving $500 to

$1,000),3 obtaining by deception (involving over $1,000),4 accessing a computer system for a dishonest purpose,5 and making a false statement to police.6

[2]    Mr Anderton was sentenced by Judge T R Ingram in the Hamilton District Court to 18 months’ imprisonment.7 He now appeals against the Judge’s refusal to convert the prison sentence to one of home detention.

The offending

[3]    The events giving rise to the charges extended to well over a year. The nature of the offending is apparent from the charges which speak, somewhat eloquently, of Mr Anderton’s lying and deceptive behaviour. Most of the charges arise out of transactions on TradeMe or other online trading platforms. Mr Anderton advertised items for sale using a number of different accounts and bank accounts. On one occasion, he accessed and changed his mother’s TradeMe password and began fraudulently trading from her account. In each case, he received payment but provided no goods to any of the buyers. The total amount fraudulently obtained by Mr Anderton is $48,405.

District Court decision

[4]    Judge Ingram listed a number of aggravating features of the offending, including the prolonged period of time over which the offending occurred; the multiple victims; the serious breach of trust and the substantial amount involved in the fraud. A particularly aggravating factor was that “a good half” of the offences occurred while

1      Crimes Act 1961, ss 240(1)(d) and 241(a): maximum penalty of seven years’ imprisonment.

2      Sections 240(1)(d) and 241(b): maximum penalty of one year imprisonment.

3      Sections 240(1)(a) and 241(b): maximum penalty of one year imprisonment.

4      Sections 240(1)(a) and 241(a): maximum penalty of seven years’ imprisonment.

5      Section 249(1): maximum penalty of seven years’ imprisonment.

6      Summary Offences Act 1981, s 24: maximum penalty of three months’ imprisonment.

7      New Zealand Police v Anderton [2017] NZDC 27546.

Mr Anderton was on bail for the first set of dishonesty offences. The District Court Judge described the offending as “a pretty determined and reasonably sophisticated effort to hoodwink people and take their money”. Altogether, the Judge adopted a starting point of two-and-a-half years’ imprisonment.8 On behalf of Mr Anderton,  Mr Prentice takes no issue with the starting point. That is not surprising, because it could have been longer.

[5]    In terms of personal mitigating features, Judge Ingram reduced the sentence by six months for Mr Anderton’s guilty pleas and a further six months to account for his youth, relatively good record - or at least an absence of relevant prior offending - and an offer to pay reparation. That resulted in the Judge reaching a sentence of 18 months’ imprisonment as appropriate. The Judge declined to order home detention in lieu of imprisonment given the nature of the offending and fact that Mr Anderton continued to defraud while on bail.

Approach on appeal

[6]    Mr Anderton appeals as of right.9 Section 250 of the  Criminal  Procedure  Act 2011 requires that the appeal be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.10 In any other case the appeal must be dismissed.11 To allow the appeal, the Court must be satisfied that the sentence imposed is “manifestly excessive”.12 An appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Submissions

[7]    For the appellant, Mr Prentice submits that the District Court made an error of law by not properly considering whether the purposes and principles of sentencing might be met by a sentence of home detention. He argues that the Judge focused entirely on the need to denounce the appellant’s offending because he had offended on

8      New Zealand Police v Anderton [2017] NZDC 27546 at [19].

9      Criminal Procedure Act 2011, s 244.

10     Section 250(2).

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

bail. Mr Prentice says the Judge did not consider other factors in deciding whether or not home detention was appropriate. Mr Prentice submits that as Mr Anderton had not previously received a term of imprisonment and did not have any relevant prior convictions, the purposes and principles of sentencing could have been met by a sentence of home detention.

[8]    In his submissions Mr Dillon, for the respondent, refers to the decision in Tonks v New Zealand Police13 where the appellant was denied home detention primarily because he committed further fraud offending while on bail for fraud charges.

Discussion

[9]    Section 15A(1) of the Sentencing Act 2002 authorises the imposition of home detention if:

(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and

(b)the court would otherwise sentence the offender to a short-term sentence of imprisonment.

A short-term sentence of imprisonment is one for two years or less.

[10]   Whether a sentence of short-term imprisonment should be commuted to home detention conventionally involves a two-step process.14 First, that the appropriate sentence would be two years’ imprisonment or less; and then the Court must exercise a discretion whether to commute the sentence to home detention. There is no presumption that imprisonment or home detention is to be preferred.15 The Judge must undertake an evaluative exercise considering the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.

[11]   As I have said, Mr Prentice submits that the District Court Judge focussed “entirely on the need to denounce the fact that the appellant had offended on bail and did not consider any other purposes and principles of sentencing”. I acknowledge that

13     Tonks v New Zealand Police [2017] NZHC 880.

14     R v Vhavha [2009] NZCA 588.

15     Osman v R [2010] NZCA 199.

an assessment that focusses only on one purpose to the exclusion of others when considering s 15A(1) amounts to an error of law,16 but I do not accept Mr Prentice’s submission that there was an error here. The relevant paragraphs in the Judge’s Sentencing Notes are these:

[16]      I have to impose the least restrictive outcome that is appropriate in the circumstances and I have already expressed my view that in these circumstances a sentence of imprisonment is the only sentence which adequately meets the needs of the situation. It is a serious aggravating factor that this second set of offending occurred whilst on bail an detail is what makes the difference between home detention being considered as an appropriate sentence and excluding that possibility. In my view, people who cynically use the opportunity on bail to continue to offend in the same way cannot look to the Courts for a sentence of home detention.

[17]      I need to take into account the extent of the losses and the harm resulting from your behaviour, the trust that was placed in you which has been abused, the vulnerability of the victims to your predatory behaviour. It is all premeditated. It is not as though you come before the Court with a clean record, it is true that that [sic] you do not have a record for dishonesty before, but you have been before the Courts and you have not even completed the sentence imposed in relation to the driving offences, a relatively light sentence of community work and you could not even do that. I take into account the fact that you are relatively young, you are entitled to credit for a guilty plea, you have made an offer to pay reparation and I take all those matters into account.

[12]   While I accept that the Judge said that the serious aggravating factor of offending while on bail was what makes the difference between home detention being considered as an appropriate sentence and excluding that possibility, that observation needs to be considered in the light of what the Judge then said at [17], where he referred to the extent of the losses and the harm resulting to the victims; the trust which had been abused; the vulnerability of the victims; and premeditation.

[13]   It is apparent that Judge Ingram properly turned his mind to those factors in considering other purposes and principles of sentencing, including the need to hold Mr Anderton accountable; the need to impose the least restrictive outcome that is appropriate in the circumstances; and the need to consider the effect of the offending on the victims.

16     Manikpersadh v R [2011] NZCA 452.

[14]Even if Judge Ingram did make an error by confining his remarks at paragraph

[16] to the continued offending after Mr Anderton had been arrested, charged and bailed on the first set of offending of a similar kind, the Judge was entitled to give considerable weight to that factor. A recent history of failure to comply with a sentence of home detention or other Court orders, such as grant of bail, may tip the balance in favour of imprisonment for deterrent reasons.17 Here, a deterrent sentence was plainly called for because of the nature and course of the offending. Moreover, in my view, the Judge treated Mr Anderton leniently by allowing a discount for his youth and relatively good record.

[15]   This was sophisticated, carefully planned offending not susceptible to considerations of youthful impetuosity or a failure to fully appreciate the consequences of the offending. The way in which the offending was set up and its repetitive nature, particularly after the initial arrest, negated such mitigating effects of Mr Anderton’s past behaviour as might have been recognised and disqualified him, in my view, from any youth discount.

[16]   The integrity and convenience of online trading of the kind giving rise to this offending are seriously undermined if participants do not deal with each other honestly and in good faith. Exploiting the trust of others by deliberate dishonesty and deception warrants a deterrent approach to sentencing which would not have been reflected adequately in this case by a sentence of home detention.

Conclusions and result

[17]   I consider the Judge made no error in his approach; but if he did, then the error was not one which gave rise to a miscarriage of justice because plainly this was a case which called for a term of imprisonment. Bearing in mind that the starting point could well have been higher and that the Judge allowed discounts from the starting point which I consider to have been unjustified, a proper approach in this case would have resulted in an inevitable sentence of imprisonment and probably for more than two years.

17     Hampton v Police [2014] NZHC 2423.

[18]I dismiss the appeal.

…………………….

Toogood J