Beaumont v Police
[2022] NZHC 472
•16 March 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-43
[2022] NZHC 472
BETWEEN BLAIR DAVID BEAUMONT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 February 2022 Appearances:
S A Saunderson-Warner for Appellant C E R Power for Respondent
Judgment:
16 March 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 16 March 2022 at 10.30 pm
Registrar/Deputy Registrar Date:
BEAUMONT v NEW ZEALAND POLICE [2022] NZHC 472 [16 March 2022]
Introduction
[1] Blair Beaumont pleaded guilty to and was convicted of 39 dishonesty charges, comprising:
(a)obtaining by deception (over $1,000) (x 16);1
(b)causing loss by deception (over $1,000) (x 2);2
(c)theft over $1,000;3
(d)unlawfully taking a motor vehicle;4
(e)obtaining by deception ($500-$1,000) (x 11);5
(f)causing loss by deception ($500-$1,000) (x 3);6
(g)obtaining by deception (under $500) (x 4);7 and
(h)causing loss by deception (under $500).8
[2] On 30 September 2021, Mr Beaumont was sentenced in the Dunedin District Court by Judge M B T Turner to three years and seven months’ imprisonment.9
[3] Mr Beaumont has appealed against three of his convictions on the basis that, by dint of the charges’ maximum sentences, such charges were time-barred and those charges are therefore nullities. The Crown acknowledges that contention. That aspect of the appeal will be allowed and the convictions quashed.
1 Crimes Act 1961, s 240(1)(a)–(b) and 241(a) – maximum penalty of seven years’ imprisonment.
2 Crimes Act, ss 240(1)(d) and 241(a) – maximum penalty of seven years’ imprisonment.
3 Crimes Act, ss 219 and 223(b) – maximum penalty of seven years’ imprisonment.
4 Crimes Act, s 226(1) – maximum penalty of seven years’ imprisonment.
5 Crimes Act, ss 240(1)(a) and 241(b) – maximum penalty of one year’s imprisonment.
6 Crimes Act, ss 240(1)(d) and 241(b) – maximum penalty of one year’s imprisonment.
7 Crimes Act, ss 240(1)(a) and 241(c) – maximum penalty of three months’ imprisonment.
8 Crimes Act, ss 240(1)(d) and 241(c) – maximum penalty of three months’ imprisonment.
9 Police v Beaumont [2021] NZDC 19652.
[4] Mr Beaumont also appeals against his sentence on the basis it is manifestly excessive because the Judge adopted an excessively high starting point, imposed excessive uplifts for personal aggravating factors, and did not allow a discount for restorative justice.
Facts
[5] Mr Beaumont’s offending spanned the thirty-months period between 1 December 2018 and 21 May 2021, starting when he was 34 years old. It occurred across Central and North Otago, South Canterbury, Canterbury and Wellington. Numerous summaries of facts covered the offending. As was summarised by the sentencing Judge, it fell into five categories:
(a)Online sales of non-existent items (including containers, shelving, car parts, computers, a PlayStation console and other electronic equipment). Mr Beaumont took payment for the “goods” but did not deliver them. He initially made excuses for the non-delivery but later ceased communication with the purchasers.
(b)Repair work for which Mr Beaumont quoted and received a deposit, but did not do the work. (In that regard Mr Beaumont held himself out as a handyman).
(c)Debts for accommodation and meals, often charged to Mr Beaumont’s business.
(d)The conversion of a motor vehicle (a rental). Mr Beaumont rented it but failed to return it.
(e)Theft of a commercial floor scrubber valued at $3,000 from a residential property Mr Beaumont was renting. He later sold it to a pawn shop for $500.
[6] Mr Beaumont’s offending spree resulted in his 39 victims (comprising both individuals and businesses) incurring total losses of close to $65,000. There has been and will not be any recovery of those funds.
[7] Mr Beaumont had an extensive criminal history — 46 previous convictions for dishonesty offences beginning in 2003 (when he was 19 years old), 36 of which he committed between 2012 and 2017. The early part of the present offending occurred while Mr Beaumont was subject to a Court sentence and release conditions, having been released from prison on his previous (20 months) sentence in May 2018. Many of his previous offences and many of the current offences have been committed while on bail.
Leave to appeal
[8] The notice of appeal against conviction was filed out of time and the appellant seeks that the Court extend the time allowed for filing the notice of appeal. The touchstone for a court’s decision about whether to grant an extension under s 231(3) of the Criminal Procedure Act 2011 (CPA) is the interests of justice.10 Here the appeal was filed out of time because counsel did not act for the appellant in the District Court and says she did not appreciate the claimed jurisdictional issue until perusing the file in preparation for the sentence appeal. There was then some delay in counsel being able to notify the appellant of the issue and taking instructions as to whether he wished to appeal. Given these circumstances, the relatively short delay, and the lack of prejudice to the Crown (which does not appear to have taken issue with this point), it is in the interests of justice that leave be granted.
Principles on appeal against conviction
[9] This Court must allow an appeal against conviction if satisfied, in the case of a judge-alone trial, that the Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”11 A miscarriage of justice means any error,
10 C (CA667/2020) v R [2021] NZCA 271 at [6].
11 Criminal Procedure Act 2011, s 232(2)(b)–(c).
irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.12
[10] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.13 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.14 The onus is on the appellant to show that an error occurred.
Convictions (on three charges)
[11] Mr Beaumont appeals against his conviction on three charges in particular. These charges were originally laid as charges of accessing a computer system for a dishonest purpose (maximum penalty of seven years’ imprisonment)15 but were subsequently amended to charges of obtaining by deception (under $500) (maximum penalty of three months’ imprisonment).16
[12] For Mr Beaumont, Ms Saunderson-Warner submitted that because the amended charges carried a maximum penalty of three months’ imprisonment, under s 25(3)(a)(i) of the CPA they had to be filed within six months after the date on which the offence was committed. However, in each case the charges were both filed and amended well outside that timeframe:
(a)a charge related to offending on 16 May 2019 was filed on 22 December 2020 and amended on 13 August 2021.
(b)a charge related to offending between 27 December 2018 and 8 January 2019 was filed on 22 December 2020 and amended on 13 August 2021.
(c)a charge related to offending on 27 December 2018 was filed on 22 December 2020 and amended on 13 August 2021.
12 Section 232(4).
13 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
14 At [38].
15 Crimes Act, s 249(1).
16 Crimes Act, ss 240(1)(a) and 241(c).
[13] Ms Saunderson-Warner submitted the three (amended) charges of obtaining by deception (under $500) were each outside the time-limit for filing. That is, the charges were and remain nullities and must be dismissed.
[14] Mr Bates appropriately conceded the appeal against the three convictions should be allowed on the basis the charges were nullities. He referred in particular to the observation of the Court of Appeal in Talley’s Group Ltd v Worksafe New Zealand (Talley’s).17 In Talley’s, the Court, in identifying defects in a charging document that cannot be cured under s 379 CPA referred to a charging document that is not in time, with the result that there is nothing before the Court capable of rectification.18
[15]The appeal against the three convictions will be allowed.
The appeal against sentence
The principles
[16] Appeals against sentence are allowed as of right by s 244 of the CPA, and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed only if the Court is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.19 As the Court of Appeal recorded in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.20 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.21
District Court decision
[17] The Judge explained he intended to approach Mr Beaumont’s sentencing by assessing his offending globally rather than by adopting a series of individual cumulative sentences. In relation to the nature and extent of the offending, he noted
17 Talley’s Group Ltd v WorkSafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198.
18 At [45].
19 Criminal Procedure Act, ss 250(2) and 250(3).
20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
21 Ripia v R [2011] NZCA 101 at [15].
the 39 instances of offences over a two and a half year period. Twenty of the 39 charges carried maximum sentences of seven years’ imprisonment. The Judge viewed the offending as premeditated, persistent and part of a pattern of deceit stretching back at least a decade. The Judge observed the 39 victims, including people in strained financial circumstances who paid in good faith expecting goods to be sent, had suffered financially and emotionally. He noted the total loss of $65,000 and Mr Beaumont’s inability to repay the victims. Having regard to the quashing today of three convictions, the corrected reference would now be to 36 rather than 39 charges. As counsel recognised, that difference in numbers (and the little difference in value) cannot impact on the correct overall sentence.
[18] The Judge considered the offending was moderately sophisticated in that the online sales utilised photographs of goods obtained from the internet and Mr Beaumont remained in contact with the victims for a period after he received payment. In relation to the accommodation bookings, the Judge observed Mr Beaumont preyed on people’s emotions and fabricated stories to gain their trust and sympathy. The Judge considered there was an inherent trust relationship involved in online sales that Mr Beaumont breached and exploited on multiple occasions. In his view, there was also an element of trust involved in booking accommodation and paying at the end of the stay.
[19] His Honour noted Mr Beaumont attributed the offending to the need to sustain alcohol and gambling addictions but identified there was no independent report or evidence to establish those addictions (only Mr Beaumont’s inconsistent self- reporting).
[20] For Mr Beaumont, Ms Henderson had submitted that the offending was broadly similar to that in Blackmore v R.22 The Judge compared the offending in the two cases and found Mr Beaumont’s to be far more serious, having regard to offences, the period of offending and the value of the property taken.
[21]The Judge adopted a starting point of three years and 10 months’ imprisonment.
22 Blackmore v R [2014] NZCA 109.
[22] Turning to personal mitigating factors, the Judge reluctantly allowed Mr Beaumont a full credit of 25 per cent for his guilty pleas. This was despite Mr Beaumont having initially pleaded not guilty to most of the charges (to secure time for the police and his counsel to review the file) and despite the Judge regarding the police case as overwhelmingly strong.
[23] With regard to remorse, the Judge stated Mr Beaumont’s modus operandi was to say whatever it takes to achieve his ends. The short letters he had written to his victims saying he was “very sorry” did not demonstrate genuine remorse for his offending.
[24] The Judge referred to the fact Mr Beaumont had attended a restorative justice conference with one victim and had made an offer to pay towards his victims between
$200 and $300 per week in reparation.
[25] The Judge considered it inappropriate, given Mr Beaumont’s history, to provide any discount for his reparation offer or attendance at a restorative justice conference with one victim. In light of Mr Beaumont’s previously breaching arrangements for payment, there being a warrant for his arrest in respect of outstanding fines, and the fact he had no assets or savings, the Judge considered his reparation offer was hollow, unrealistic and part of his pattern of deceit. The Judge noted that the probation report did not countenance the offer of reparation. He recorded Mr Beaumont’s history of making but failing to fulfil promises.
[26] The Judge acknowledged Mr Beaumont’s expressed desire to engage with rehabilitation services but did not place weight on this having regard to Mr Beaumont’s propensity for deception and the absence of any independent verified information regarding relevant background factors connected to the offending. The Judge referred to the record relating to Mr Beaumont’s previous offending in 2017 when the sentencing judge found Mr Beaumont, who had “begged for a second chance” to be inherently dishonest and a recidivist offender. The Judge noted Probation’s assessment that Mr Beaumont is at a high likelihood of further offending.
[27] The Judge in these circumstances provided no discount for personal mitigating factors other than the guilty pleas. He considered Mr Beaumont to be a recidivist offender engaging in predatory behaviour who presents a continuing risk to society. The 25 per cent discount reduced the sentence to 34 months.
[28] The Judge then evaluated Mr Beaumont’s personal aggravating factors. The Judge considered an uplift of nine months’ imprisonment was appropriate, taking into account Mr Beaumont’s history of dishonesty offending and that the offending occurred while subject to sentence and release conditions and while on bail.
[29] This resulted in a sentence of three years and seven months’ imprisonment. The Judge declined to impose a minimum period of imprisonment but cautioned that Mr Beaumont was rapidly reaching the point where this would be required. No orders were made for reparation. The Judge remitted Mr Beaumont’s outstanding fines of
$2,177.
Submissions
Appellant’s submissions
[30] Ms Saunderson-Warner accepted the offending was serious and that the starting point adopted would have seemed available when the Judge was referred to Blackmore only. However, she submitted additional authorities (Chapman v Police,23 Gobey v Police,24 Helsby-Knight v R25 point to (for this case) a range of starting points available between three years’ and three years and six months’ imprisonment. On this basis she submitted the starting point adopted of three years and 10 months was manifestly excessive.
[31] Ms Saunderson-Warner accepted an uplift was justified to reflect Mr Beaumont’s personal aggravating factors. However, she submitted the overall uplift of nine months’ imprisonment was excessive as it was not proportionate to the starting point and involved punishing the offender twice for the same offending. On this basis
23 Chapman v Police [2015] NZHC 498.
24 Gobey v Police [2018] NZHC 1555.
25 Helsby-Knight v R [2015] NZCA 315.
she argued an uplift of no more than six months was justified and more consistent with the uplifts imposed in similar cases.
[32] Thirdly, it was submitted a modest allowance in the region of a two months’ discount should have been afforded to reflect that Mr Beaumont had attended a restorative justice conference with one of the victims. Ms Saunderson-Warner emphasised, although there was a large number of victims, restorative justice appeared to have been explored with only two of them, with one then willing to participate. She submitted the conference was beneficial to the victim and Mr Beaumont deserved credit for being willing to acknowledge and apologise for his offending and offering to undertake work for the victim once he had employment.
[33] On her calculations, after adopting a starting point of no more than three years and six months, applying an uplift of no more than six months for personal aggravating factors, credit of two months for restorative justice and 25 per cent for guilty pleas, this would result in an end sentence of 34.5 months’ imprisonment.26
Respondent’s submissions
[34] Mr Bates submitted the starting point adopted by the Judge, whilst on the high side, was within range. He submitted that the effect of the cases cited for the appellant is that, for offending of this type and seriousness, a general starting point range of approximately three to four years’ imprisonment was available. He suggested the cases cited with starting points of less than three years were all considerably less serious than the present offending. Mr Bates further submitted that the fact there have been more serious cases with slightly lower starting points does not alter the starting point range available. He emphasised the importance of starting point ranges, which are designed to avoid an outlier sentence reducing, across the board, sentencing levels for subsequent offending.
26 I note that this methodology does not comply with Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 as Ms Saunderson-Warner applied the uplift and discounts sequentially rather than combining the adjustments and applying that combined figure to the starting point. A Moses-compliant calculation of Ms Saunderson-Warner’s figures would instead result in an end sentence of 35.5 months’ imprisonment.
[35] Secondly, Mr Bates submitted the uplift imposed for personal aggravating factors was proportionate having regard to the multiple factors it reflected. He observed the nine-month uplift was roughly 20 per cent of the starting point. He emphasised the need to take into account that this uplift reflected not only Mr Beaumont’s previous convictions but his offending when subject to sentence and release conditions and whilst on bail. He submitted a six-month uplift would have been justified for Mr Beaumont’s identical and recent previous offending alone. A further uplift of three months for offending while on sentence (for similar offending) and on bail (for similar charges) was then, in his submission, not excessive.
[36] Mr Bates further submitted that no discrete reduction was required for Mr Beaumont’s attendance at one restorative justice meeting. He submitted that a Judge is entitled to decline to allow a reduction for a restorative justice conference in a situation where there have been multiple victims and only one such conference occurs, with hollow offers of remorse and restitution.
Analysis
Starting point
[37] It is a well-established sentencing principle that “planned and repeated dishonesty for financial gain typically constitutes serious offending, warranting a clear element of denunciation”.27 Although there is no tariff case for dishonesty-related offending because of the wide range of circumstances in which it can occur, in R v Varjan the Court of Appeal outlined principles for assessing culpability in cases of fraud and dishonesty offending:28
[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.
[23] It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation
27 Arnott v R [2015] NZCA 236 at [8], citing R v Rose (1990) 5 CRNZ 638 (CA) at 642.
28 R v Varjan CA97/03, 26 June 2003, approved in McGregor v R [2015] NZCA 565 at [13].
with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.
[38] In Rako v R, the Court of Appeal again referred to the principles in Varjan and stated:29
Culpability 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.
[39] Having regard to the emphasis placed by Ms Saunderson-Warner on the cases she referred to, I have reviewed their features:
(a)In Chapman v Police,30 the appellant was convicted on eight charges of obtaining by deception (with five involving property worth over
$1,000, two involving property between $500 and $1,000, and one involving property less than $500), three of unlawfully taking a motor vehicle, and one each of receiving over $1,000, burglary and breaching sentence. The deception offending involved a similar modus operandi to Mr Beaumont’s. The total loss caused was approximately $50,000 and involved 24 victims. The offending occurred across 14 occasions over a five-month period. Clifford J noted the offending was relatively unsophisticated and did not target private individuals. A starting point for the dishonesty offending (excluding the burglary, which attracted a six-month cumulative sentence) in the vicinity of two and a half years’ imprisonment was considered appropriate.
(b)In Gobey v Police,31 the appellant was convicted on four charges of using a document for pecuniary advantage, one of accessing a computer system for a dishonest purpose (as well as one of intending to do so), three of either obtaining by deception or causing loss by deception (over $1,000), three of either obtaining by deception or causing loss by deception ($500 to $1,000), two charges of theft and one of
29 Rako v R [2015] NZCA 463 at [10] (footnote omitted).
30 Chapman v Police, above n 23.
31 Gobey v Police, above n 24.
impersonating a police officer (in addition to non-compliance charges). The offending took place over a six-month period and caused loss of approximately $41,000. The Judge considered it was repeated offending with at least a moderate degree of premeditation, planning and sophistication. It involved multiple victims who suffered varying degrees of financial loss. It was aggravated by the fact that some of the charges involved impersonating a police officer. A starting point of two years and nine months’ imprisonment was upheld on appeal, which the Judge described as being “at the higher end” but within range.
(c)In Blackmore v R,32 the Court of Appeal substituted a sentence of three years and eight months’ imprisonment for the District Court’s sentence of five years and seven months’ imprisonment. The appellant had pleaded guilty to 18 charges of dishonesty offending (including 13 charges of obtaining by deception (over $1,000), one of obtaining by deception ($500 to $1,000), two of using a document for a pecuniary advantage, one of unlawfully taking a motor vehicle, and one of obtaining accommodation by fraud) and two charges of breaching release conditions. The offending occurred over a nine-month period and mainly involved the appellant’s offering to repair or sell people’s vehicles under assumed identities and taking payment without performing the work. In total there were 17 victims and the loss caused was $16,395.50 (the balance of the total property stolen of $62,420.50 having been recovered). The Court of Appeal considered the offending was moderately serious as it involved a sustained spate of offending against a number of vulnerable victims. The offending was not particularly sophisticated and did not involve a serious breach of trust. It was opportunistic and, once property was recovered, the permanent loss suffered was relatively small. The Court of Appeal found a starting point of three years and six months’ imprisonment to be appropriate (rather than the four years adopted in the District Court).
32 Blackmore v R, above n 22.
(d)In Helsby-Knight v R:33 the appellant pleaded guilty to 117 charges, comprising 48 of using a document with intent to obtain a pecuniary advantage, and 69 of causing loss by deception. The offending occurred over a one-year period and related to three schemes whereby the appellant created false documentation and advertising for fictitious businesses in order to defraud prospective customers. There were 113 victims who suffered a total loss of $156,790. The Court considered the offending amounted to fraud on a commercial scale and involved considerable sophistication and significant premeditation (the appellant seemed to have treated fraud as his occupation). The Court determined the starting point adopted by the sentencing Judge of three years and six months’ imprisonment was “within, albeit at the lower end of, the available range” and “could well have been higher”.34 The Court did not increase the sentence given the “unusual circumstances” of the case.
[40] Here, Mr Beaumont was sentenced on 39 dishonesty charges, 20 of which carried a maximum penalty of seven years’ imprisonment. He dishonestly obtained from 39 victims a total of $65,000, none of which has been recovered. The offending was sustained over the course of two and a half years across widespread regions of the country. I consider Mr Beaumont’s offending had a relatively moderate degree of sophistication and premeditation. On the multiple occasions Mr Beaumont incurred debt for accommodation, he manufactured emotive stories to gain people’s trust, such as falsely telling one motelier his wife was recently deceased and he was left with an infant child. These acts of deception had a significant emotional and financial impact on the victims, with the losses being exacerbated for accommodation providers in the context of COVID-19 travel restrictions. There was a distinct element of breach of trust in the offending.
[41] The offending here is considerably more serious than that in Chapman or Gobey. The period of offending, number of offences and separate victims and the unrecovered loss all distinguish Mr Beaumont’s offending. Unlike Chapman, some of the victims were known to Mr Beaumont who targeted private individuals. Ms
33 Helsby-Knight v R, above n 25.
34 At [49].
Saunderson-Warner submitted the offending in Gobey was comparable in terms of the degree of premeditation and sophistication involved. However, I consider the significantly greater duration and number of victims involved in Mr Beaumont’s deception must heighten his culpability. By contrast, Mr Beaumont’s offending is distinctly less serious than that in Helsby-Knight, which involved a far greater loss, more victims, and a much more sophisticated set of commercial-scale schemes. Blackmore remains the most analogous case, although the offending there was aggravated by an incident in which the appellant preyed upon a mental health patient but mitigated by the fact most of the losses were recovered.
[42] I consider the culpability of Mr Beaumont’s offending sits somewhere between that of the defendants in Blackmore and Helsby-Knight. In my view, the very top of the range of an appropriate starting point for Mr Beaumont’s offending was three years and nine months’ imprisonment. This is just one month less than the Judge adopted as his starting point.
Uplift for personal aggravating factors
[43] Ms Saunderson-Warner submitted the overall uplift of nine months’ imprisonment for Mr Beaumont’s personal aggravating factors was excessive. It was common ground that uplifts for previous convictions must be proportionate to the overall starting point adopted.35
[44] In Chapman, the appellant had 34 convictions in the nine to 10 years prior to the present offending.36 The Judge noted uplifts of 12 months could be appropriate for significant recidivist dishonesty offending but was hesitant to describe the appellant as a recidivist offender because he had not offended between 2009 and 2013. Clifford J referred to Ropiha v Police where the appellant had a “very prolific” history comprising 76 dishonesty convictions and a six-month uplift was imposed.37 On this basis, Clifford J considered a three-month uplift (to a starting point of two and a half years) was appropriate for the appellant’s previous offending.
35 Enoka v R [2018] NZCA 185 at [28].
36 Chapman v Police, above n 23.
37 At [24], citing Ropiha v Police HC Rotorua CRI-2004-463-74, 22 July 2004 at [28].
[45] In Blackmore (where the starting point was set at three years and six months’ imprisonment), the appellant had more than 300 convictions for dishonesty related offending (84 of which had been committed in the 11 years before the current offending).38 The current offending had been committed when on parole or release conditions. The Court of Appeal noted a stern response was necessary as the appellant had shown that sentences for his previous offending, including a recall to prison for offending on parole, had not deterred him. He had also re-offended shortly after release from prison on multiple occasions. Hence, the Court stated:39
The sentence imposed therefore needed to take into account that there was a particular need for individual deterrence and a need to protect the community from the ongoing nuisance and upset caused by Mr Blackmore’s continual offending. The response to those matters, however, needed to keep in mind that Mr Blackmore was being sentenced for this offending, not being repunished for his previous offending.
[46] In this context, the Court in Blackmore considered an uplift of three and a half years (which nearly doubled the four year starting point adopted by the District Court) was disproportionate to the culpability of the appellant’s offending. The Court instead determined an uplift of around 12 months (equating to 28 per cent) appropriately recognised the need for deterrence and to protect the community, while maintaining a reasonable relationship with the gravity of the offending.40
[47] Of Mr Beaumont’s 46 previous convictions for dishonesty, 36 were for his offending between 2012 and 2017. He was convicted in February 2018 of two charges of obtaining by deception and sentenced to two months’ imprisonment, that being cumulative on a sentence of one year and six months’ imprisonment imposed on him in July 2017 in relation to 22 charges of obtaining by deception, theft and receiving. In May 2018, Mr Beaumont was then released on those charges subject to release conditions expiring on 18 September 2019. The present offending commenced during this period and Mr Beaumont committed 13 offences while subject to release conditions. On 9 October 2020, Mr Beaumont appeared in court on a number of the charges relating to the current sentencing and was released on bail. Between that date
38 Blackmore v R, above n 22.
39 At [12].
40 At [13].
and his remand in custody on 22 May 2021, Mr Beaumont committed a further 20 offences on bail.
[48] The nine-month uplift imposed in the present case was just under 20 per cent of the starting point of three years and 10 months (nine months’ uplift represents exactly 20 per cent of three years and nine months). Although such a degree of uplift is stern and at the upper limit of what would be proportionate relative to the starting point imposed, I consider the uplift was justified to provide a sufficient degree of deterrence whilst protecting the community against Mr Beaumont’s sustained offending. His recidivism, recognised by the sentencing Judge in 2017, has clearly become fully entrenched. As the Judge below observed — Mr Beaumont is “a recidivist offender engaging in predatory behaviour and present[s] a risk to society as a whole”.41 It is apparent that previous sentences of imprisonment failed to deter Mr Beaumont. His dishonesty offending has instead escalated in frequency and seriousness since his previous sentences. In light of the multitude of personal aggravating factors the uplift reflected, I am not persuaded the uplift imposed by the Judge was excessive.
Restorative justice/offer of reparation
[49] In terms of personal mitigating factors, no issue was taken with the Judge’s refusal to provide a discount for remorse or personal circumstances. However, Ms Saunderson-Warner submitted a two-month discount was justified to reflect Mr Beaumont attending a restorative justice conference with one of the victims.
[50] Section 10 Sentencing Act 2002 requires a court to take into account any offer, agreement, response, measure or action taken to make amends. In deciding whether and to what extent such matters should be taken into account, the court must consider whether the offer, agreement or actions were genuine and capable of fulfilment, and whether they have been accepted by the victim as expiating or mitigating the wrong.42
41 Police v Beaumont, above n 9, at [61].
42 Sentencing Act 2002, s 10(2).
[51]The learned authors of Adams on Criminal Law state that:43
Participation by an offender in a restorative justice process prior to sentence provides the opportunity for the expression of genuine remorse and contrition, and enables the victim and the offender to agree on the means by which the offender can make appropriate amends. It affords the offender a way of demonstrating his or her remorse and thus operates to mitigate sentence …
As an indication of genuine remorse, an offender’s engagement in restorative justice is recognised by a reduction in sentence …
[52] At the restorative justice conference, Mr Beaumont apologised, offered to turn his life around, to carry out work for that victim in the evenings and weekends, and to pay the balance of the debt owed to that victim when he obtained a job. He described how he intended to engage in counselling and treatment for his drinking and gambling. The notes taken at the conference indicated that his victim supported Mr Beaumont in pursuing treatment programmes and his plan to obtain employment to pay off his debts.
[53] Mr Beaumont had previously breached arrangements for payment of reparation and, before the Judge remitted $2,177 in fines, had a warrant for his arrest in respect of those. The reparation report provided by Corrections noted he had no assets or savings. No verification had been provided of his wages or other income. In these circumstances, and taking into account the two and a half years of deception that characterised Mr Beaumont’s offending, I consider the Judge was entitled to take the view that his offers of amends were neither genuine nor reasonably capable of fulfilment, and therefore it did not justify what would amount to a reduction of approximately five per cent from the starting point. As the Judge noted, Mr Beaumont has a history of making promises to address what he claims to be the underlying causes of his offending but has yet to have taken any steps to fulfil them. Instead he simply continues to offend in the same manner as previously. I do not consider the Judge erred in refusing to provide a discount for Mr Beaumont’s attendance at one restorative justice conference.
43 Simon France (ed) Adams on Criminal Law: Sentencing (online ed, Thomson Reuters) at [SA10.03].
Application of methodology in Moses v R
[54] Applying the methodology in Moses v R,44 from the starting point of 45 months’ imprisonment there would fall to be deducted a net five per cent (25 per cent discount for guilty plea offset against 20 per cent uplift for personal aggravating features). Such produces an overall sentence of 42 or 43 months’ imprisonment. The imposed sentence was 43 months.
[55] The end sentence adopted by the Judge cannot be criticised when the Moses methodology is adopted, even when the slight adjustment to the starting point is made that I find to be required.
[56] Nor can it be said, standing back, that the sentence of three years and seven months’ imprisonment was manifestly excessive.
Order
[57]I order:
(a)The defendant’s conviction on the following three charges are quashed, and the sentences on those convictions set aside, namely:
(i)a charge related to offending on 16 May 2019 that was filed on 22 December 2020, and amended on 13 August 2021;
(ii)a charge related to offending between 27 December 2018 and 8 January 2019 that was filed on 22 December 2020 and amended on 13 August 2021; and
(iii)a charge related to offending on 27 December 2018 that was filed on 22 December 2020 and amended on 13 August 2021.
44 Moses v R, above n 26.
(b)The appeal against sentence on the remaining charges is dismissed.
Osborne J
Solicitors:
Crown Solicitor, Dunedin
Copy to: S A Saunderson-Warner, Barrister, Dunedin
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