Baker v Police
[2012] NZHC 2355
•13 September 2012
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2012-412-000038 [2012] NZHC 2355
BETWEEN CLAYTON TERRY BAKER Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 12 September 2012
Counsel: S A Saunderson-Warner and D J Matthews for Appellant
R D Smith for Respondent
Judgment: 13 September 2012
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 13th day of September 2012.
RESERVED JUDGMENT OF COLLINS J
Introduction
[1] Mr Baker was sentenced to 18 months’ imprisonment in the Dunedin District
Court on 17 July 2012. This sentence was imposed after Mr Baker pleaded guilty to
23 charges concerning dishonesty offending.
[2] Mr Baker appeals against his sentence on the basis that it is manifestly excessive.
BAKER V NEW ZEALAND POLICE HC DUN CRI-2012-412-000038 [13 September 2012]
The offending
[3] Ms Saunderson-Warner, counsel for Mr Baker has very conveniently analysed the 23 instances of dishonesty to which Mr Baker pleaded guilty. She divides the offending into five categories:
(1)The first set of offending occurred when Mr Baker was living with a former flatmate in Mangere, Auckland. This offending occurred between December 2010 and January 2011. Mr Baker’s flatmate agreed to lend Mr Baker their credit card so that he could buy a mobile phone on TradeMe. Mr Baker retained the credit card details and over the following month used the card a further nine times without his flatmate’s authority. The transactions he made totalled
$684.83. As a consequence, Mr Baker was charged with nine offences of using a document to obtain a pecuniary advantage contrary to s 228 of the Crimes Act 1961.
(2) The second group of offences occurred between 15 April 2011 and
16 September 2011. On these occasions Mr Baker listed four separate items for auction on TradeMe. Purchasers availed themselves of the “Buy Now” function to purchase the items and transferred the required funds to Mr Baker’s bank account. Mr Baker never sent the items to the purchasers. This resulted in Mr Baker facing four charges of obtaining by deception contrary to ss 240(1)(a) and 241(b) of the Crimes Act 1961.
(3)The third set of offences occurred on 5 November 2011 when Mr Baker was working at a restaurant in Auckland. When a customer paid, Mr Baker wrote down the customer’s credit card details and used them to order a television and laptop on the internet. However, the bank recognised the fraudulent nature of the transaction and cancelled the payments. This resulted in Mr Baker facing two charges of using a document for a pecuniary advantage contrary to s 228 of the Crimes Act 1961.
(4)The fourth instance of offending occurred on 24 January 2012 when Mr Baker entered an agreement with a family friend to purchase their motor vehicle. He handed the victim’s partner an envelope containing internet banking printouts which showed he had transferred $2,500 to the victim’s bank account. However, the victim never received this money. Two charges of obtaining by deception contrary to s 228 of the Crimes Act 1961 resulted from this offending.
(5) The fifth group of offences commenced on 24 November 2011.
Mr Baker was working as a waiter at a restaurant in Auckland and as he processed a credit card payment he noted the victim’s name and credit card details. Following this he used the details to buy tickets worth $243 and a laptop worth $1,220.26. He then unsuccessfully attempted to purchase two more laptops. This resulted in five further charges of using a document for pecuniary advantage contrary to s 228 of the Crimes Act 1961.
District Court Judge’s sentencing decision
[4] In his sentencing notes the District Court Judge identified the aggravating factors as being the number of charges, the period of time over which the offending took place, premeditation, breach of trust, loss to the victims, and Mr Baker’s previous criminal history. The only significant mitigating factor was Mr Baker’s guilty plea.
[5] The District Court Judge reflected upon the pre-sentence advice provided to the Court. The pre-sentence report noted Mr Baker represented a high risk of reoffending and recommended imprisonment.
[6] The District Court Judge adopted a starting point for all offences of
18 months’ imprisonment. This was increased by six months to reflect Mr Baker’s previous convictions and the fact that he had offended whilst on bail. The District Court Judge then reduced the sentence by six months (25 per cent) to reflect Mr Baker’s guilty pleas. Thus, the final sentence was 18 months’ imprisonment.
[7] The District Court Judge declined to activate sentences for earlier offending. An order for $2,914.83 reparation was also made.
Submissions on appeal
[8] In her very helpful submissions Ms Saunderson-Warner urges me to accept that the District Court Judge adopted too high a starting point. She submits that the
18 months’ starting point was manifestly excessive in the circumstances of this case and that a more appropriate starting point was in the region of 12 months.
[9] Ms Saunderson-Warner drew support for her submissions from the following cases:
(1)Tiopira v Police,[1] where Lang J noted that as a general proposition, a starting point of 12 to 18 months’ imprisonment appeared to be the norm where the offending results in losses of around $2,000 to $3,000 and where an offender has made use of multiple stolen credit cards or cheques. On this basis, Ms Saunderson-Warner submitted that the starting point taken in respect of Mr Baker was at the upper end of the scale.
[1] Tiopira v Police [2012] NZHC 1720 at [7].
(2)Edwards v Police,[2] in which the High Court considered an appeal where, on 10 separate occasions over a month the offender visited supermarkets and presented cheques to the value of $6,244.31 knowing he did not have the money to honour those cheques. The original starting point taken at sentencing was one of 12 months’ imprisonment. On appeal, Heath J stated that the starting point for the actual offending was too low and could easily have been pitched
[2] Edwards v Police [2012] NZHC 737
at the level of 18 months.[3]
[3] At [11].
(3)Walsh v Police,[4] where the offender committed a variety of dishonesty offences using a relative’s EFTPOS card to withdraw a number of sums of money totalling $2,700. Two months later he stole $550 from another person. A week later he used an EFTPOS card unlawfully to withdraw $100. In that case, Woodhouse J thought that a starting point for the dishonesty offences of 12 months’ imprisonment was “a reasonably stern starting point for the totality of the dishonesty offences”. The offender in that case was 19 years old and had a history of dishonesty offending.
[4] Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.
(4) Pratheepan v Police,[5] where the offender had been sentenced to
[5] Pratheepan v Police HC Auckland CRI-2004-404-436, 10 December 2004 at [11].
12 months’ imprisonment after pleading guilty to three representative charges of fraudulently using a document for the purposes of obtaining a pecuniary advantage. The offender gained approximately
$37,000. The sentencing Judge adopted a starting point of 18 months’ imprisonment. On appeal, Courtney J considered that a “starting point of 18 months was not beyond the range open to the learned Judge”.
(5)R v Singh,[6] where the offender used details of another person’s credit cards to fraudulently purchase items totalling $3,000. On appeal it was held that a sentence of two years’ imprisonment was outside the acceptable range available in relation to the appellant’s offending and was therefore manifestly excessive.
[6] R v Singh (2003) 20 CRNZ 158 (CA).
[10] Ms Saunderson-Warner also submitted that the District Court Judge failed to give appropriate weight to mitigating factors. In particular, she emphasises that Mr Baker had completed two courses at Community Alcohol and Drug Services (CADS) in Kingsland in Auckland. Ms Saunderson-Warner also urges me to take account of the submission that Mr Baker has not resorted to drugs since December
2011 and was also enrolled to start a Computing IT and Web Design Course at Otago
Polytechnic in the second semester. Ms Saunderson-Warner submits the fact that
Mr Baker has not incurred any further criminal charges since completing the CADS course and coming to Dunedin shows that he was entitled to have at least some weight placed upon the submission that he has made strenuous efforts to change the course of his life.
Submissions from the Crown
[11] The Crown points to Mr Baker’s previous record of criminal offending. Mr Baker was convicted in the Hamilton District Court on 17 December 2004 on a number of charges of obtaining credit by deception and theft. He was sentenced to
300 hours’ community work. In March 2006 Mr Baker was sentenced to three years six months’ imprisonment for serious drug offending. His dishonesty offending resulted in him appearing again before the District Court on 1 July 2008 when he was convicted of four charges of using a document for pecuniary advantage. He was again sentenced to community work. Mr Baker was again before the Courts on charges relating to the obtaining by deception on 31 August 2010 when he was sentenced to nine months’ supervision. In June 2011 Mr Baker was again before the Courts in relation to charges of obtaining by deception. He was sentenced on the basis that he would be called upon for sentence if convicted of another offence.
[12] On the basis of this record, and on the basis of the authorities to which the District Court Judge referred, the Crown submits that the starting point adopted by his Honour of 18 months’ imprisonment was within the range reasonably available having regard to the circumstances of the offending, including the amount dishonestly obtained and the period of the offending. The Crown also submits that the District Court Judge’s decision not to activate the suspended sentence was a particularly lenient decision and if invoked, could have resulted in a much higher starting point.
Analysis
[13] This Court’s jurisdiction to hear and determine the appeal is derived from s
121 of the Summary Proceedings Act 1957. In the circumstances of this appeal, the
Court may allow the appeal if it considers that the sentence imposed by the District
Court was “clearly excessive or inadequate or inappropriate” (“manifestly
excessive”).
[14] In R v Monkman, the Court of Appeal explained the term “manifestly excessive” in the following terms:[7]
Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).
[7] R v Monkman CA445/02, 3 March 2003 at [6].
[15] When considering if the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal observed in Ripia v R:[8]
... this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.
[8] Ripia v R [2011] NZCA 101 at [15].
[16] In addition to the authorities that counsel have kindly referred to me, I have also reflected on the following decisions:
(1)Keenan v Police,[9] where the offending was similar to the present case in that the appellant entered her ex-partner’s house without permission, took cash and EFTPOS cards and used them on 31 occasions to obtain approximately $4,750. Fogarty J held a starting point of 18 months was appropriate.
[9] Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007.
(2)Puna v R,[10] where the prisoner pleaded guilty to 12 charges of using a document for pecuniary advantage, receiving, shoplifting, possessing methamphetamine and possessing a utensil for using methamphetamine. Her partner had stolen a wallet from a woman at
[10] Puna v R [2010] NZCA 572 at [12].
a shopping centre. Both then used the cards inside on 44 occasions
over the following two weeks, obtaining cash and property worth a little over $10,000. Her partner used the credit cards 26 times while she used them 14 times (independently). The Court of Appeal substituted a starting point of 18 months with one of 15 months to reflect her lesser culpability. Her partner stole the cards in the first
place, and was described as the ringleader.
Analysis
[17] In my assessment the starting point of 18 months’ imprisonment was within the range that was reasonably available to the District Court Judge in the circumstances of this case. I am particularly persuaded by:
(1) The period over which the offending took place;
(2) The clear breach of trust that was involved in the offending;
(3) The obvious premeditation that was involved in the offending; and
(4) The loss to victims which they are likely to have to bear themselves. [18] For these reasons, I believe the District Court Judge adopted a starting point
that should not be interfered with on appeal. The starting point was not manifestly excessive.
[19] The uplift of six months’ imprisonment to reflect previous convictions was also, a decision that cannot be criticised in my assessment. Mr Baker’s previous convictions are serious and needed to be reflected in the approach to sentencing which was taken on this occasion.
[20] The reduction of six months reflecting a 25 per cent discount for the guilty plea was entirely orthodox.
[21] The only matter that concerns me in this case was that it would appear the
District Court Judge did not have the information about Mr Baker’s personal
circumstances which indicates he may have made genuine efforts to change the direction of his life since attending the two CADS courses in Auckland. It would seem this information was not made available to the District Court Judge for reasons that are not entirely clear.
[22] The District Court Judge who sentenced Mr Baker is a very experienced and highly respected Judge who would in all likelihood have wished to give Mr Baker some credit for his apparent redirection in life, if that information had been brought to his attention.
[23] I have determined that in this case Mr Baker is entitled to a little credit for the fact that he has not offended since attending the CADS programmes and has taken steps to improve his education prior to being sentenced to prison. In my view those factors justify a further three month reduction in sentence.
Conclusion
[24] For these reasons, the appeal is allowed to the extent that the end sentence of
18 months’ imprisonment is quashed and substituted with a sentence of 15 months’
imprisonment. All other orders made by the District Court Judge are upheld.
D B Collins J
Solicitors:
Aspinall Joel, Dunedin for Appellant
Crown Solicitor, Dunedin for Respondent
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