Beckford v New Zealand Police HC PMN CRI 2008-454-000003

[2008] NZHC 2308

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2008-454-000003

BETWEEN  JASON ADAM BECKFORD Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 May 2008

Counsel:         O S Winter for the Appellant

E C Killeen for the Respondent

Judgment:      8 May 2008

ORAL JUDGMENT OF WILD J

[1]     Mr Beckford appeals against a total effective sentence of 18 months imprisonment imposed on him in the District Court at Palmerston North on 16

January 2008 by Judge Dawson.

[2]      As stated in his Notice of Appeal, dated 12 February, the grounds of the appeal are:

The  sentence  imposed  on  me  comprises,  in  part,  cumulative  maximum sentences despite my plea of guilty to those informations.

Particularly  for  that  reason,  and  generally,  the  sentence  imposed  is manifestly excessive.

[3]      In developing that ground, Mr Winter referred to the case law establishing that a discount from sentence to reflect a guilty plea is generally appropriate.   He also submitted that the sentences under appeal made no allowance for the fact that

the  appellant  had  spent  2  months  on  restrictive  bail  terms,  including  electronic

BECKFORD V NEW ZEALAND POLICE HC PMN CRI 2008-454-000003  8 May 2008

monitoring.  Mr Winter submitted that allowance for that 2 month period also ought to have been made.   He referred to the decisions of the Court of Appeal in R v Faisandier CA185/00 12 October 2000 and R v Tamou [2008] NZCA 88.

[4]      Mr  Beckford  appeared  for  sentence  on  five  charges  of  obtaining  by deception, one charge of being in breach of release  conditions, four charges of driving while forbidden and one charge of giving the Police false information.  The deception  charges,  which  span  the  period  July  2006-July  2007,  involved  the appellant using credit cards or credit card details to which he had no right to obtain accommodation, transport and to buy various things at various places around New Zealand.  The breach charge arises from the appellant’s failure to report in terms of his release conditions, almost immediately after he was released from prison in July

2006.  The driving charges are self-explanatory.  The false information charge arises from the appellant giving false details to the Police when stopped in September

2006, and, I might add, again it seems in January 2007.

[5]      This is what Judge Dawson said in imposing the sentence under appeal:

[13]      Mr Beckford, it is apparent that you offend at will and you do so all over the country.  I note that the charges for which you are sentenced today were laid in five different courts around the country.  You do not pay your fines or your reparation that you already owe.   You did not comply with community based sentences.  You continue to defraud people and businesses at will.   Your history for fraudulent offending is appalling.   Therefore maximum sentences must be imposed for this offending.   If maximum sentences cannot be imposed for your offending, it is difficult to see when they ever could be, to be perfectly blunt.

[14]      Each charge of obtaining by deception carries a maximum sentence of three months.   On all five charges of obtaining by deception you are convicted and sentenced to a term of imprisonment of three months each, to be served cumulatively.

[6]      At  the  age  of  39, Mr Beckford  was  appearing before  the  District  Court already with 279 convictions, 242 of them for fraud.

[7]      Mr Beckford’s attitude is captured in this part of the probation report:

Mr Beckford failed to comply with this sentence and as a result there is a Breach of Release Conditions.   Since being released on electronic bail his address has been visited by his Probation Officer and Mr Beckford has asked the Probation Officer to leave his address as he was not interested in his

sentence of Release on Conditions, “if I wasn’t on electronic bail, I would not be reporting as I don’t want to, so I don’t want you to come here”.

At  interview,  the  writer  discussed  with  Mr  Beckford  what  intervention would reduce the likelihood of him committing any further offending of this nature.  Mr Beckford made it very clear at interview that he has no intention to  comply  with  any  community  based  sentence,  if  such  a  sentence  is imposed, “I just won’t do it, I know I won’t.  I’d rather do a longer lag and get up.  If they impose a community based sentence, you guys (Community Probation Service) will just be breaching me, cause I have no interest in reporting”.  Later in the interview, Mr Beckford stated that if he wanted to address his drug use he would go to counselling on his own.

[8]      The  total  effective  sentence  under  appeal  was  thoroughly  justified.    In particular, imposition of the maximum available sentences for each of the five deception charges was justified.  I would not disturb those sentences, had the Judge not erred in not discounting them to reflect the appellant’s guilty pleas.

[9]      A fairly minimal discount was appropriate given these factors:

•The pleas were entered at what the Judge described as “a relatively late stage”, although Ms Killeen concedes Mr Winter’s point that they were entered promptly once full disclosure was made.

•They were entered in the face of an overwhelmingly strong Crown case.  Mr Beckford was identified by fingerprints, video surveillance and also through use of Police photo-montages.

•There was not the slightest indication of remorse from Mr Beckford, and thus no prospect for rehabilitation.

•Although the guilty pleas saved the expense (public as well as private) of a trial, or possibly a number of trials, these were not charges that spared the complainants the emotional trauma of having to give evidence.  This would have been an altogether different trial(s) from one involving, for example, historic sex charges.

[10]     In response to a question from me, Mr Winter said that in his experience discounts for guilty pleas ranged from 10-25%.  Ms Killeen agreed.  I read the Court

of Appeal’s decision in R v Hannagan (CA396/04, 9 June 2005, Glazebrook, Hammond and Chambers JJ) as giving general approval to a discount range of 10 to

33%.  But, in doing that, the Hannagan Court also approved this statement by the

Court of Appeal in the well known case of R v Mako [2000] 2 NZLR 170:

[14]     …   The Court has resisted laying down any specific quantum or proportion for such discount (for a guilty plea(s)) because of the widely varying circumstances in which it might be entered.

[11]     I think that a discount of approximately 15% was the one appropriate here. That reflects also some allowance for the 2 months Mr Beckford spent on bail on restrictive terms, including electronic monitoring.  Allowance for such a period was mandated, if appropriate, by the Court of Appeal in R v Tamou:

[18]      This Court in R v Faisandier CA185/00 12 October 2000 indicated at [28] that there may be a need for a Judge, in determining mitigating factors,  to reflect  the  fact  of  a  restrictive  bail  regime  which  would  not otherwise be taken into account in the manner in which a sentence of imprisonment was calculated.  The possibility was affirmed recently in R v Cristia [2008] NZCA 19.

[12]     Applying 15% discount to each of the sentences of 3 months (12 weeks) imprisonment imposed on each of the five deception charges and also on the breach charge, reduces each of those sentences to 10 weeks (rounded).

[13]     The 3 month sentence of imprisonment on each of the five deception charges, and on the breach charge, is quashed.  On each of those six charges a sentence of 10 weeks  imprisonment  is  substituted.    Those  sentences  remain  cumulative,  now totalling to an effective term of 60 weeks or 15 months imprisonment.

Solicitors:

WinterWoods Lawyers, Palmerston North for the Appellant

Crown Solicitor, Palmerston North for the Respondent