Blackmore v R
[2014] NZCA 109
•1 April 2014 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA591/2013 [2014] NZCA 109 |
| BETWEEN | THOMAS WILLIAM ZANE BLACKMORE |
| AND | THE QUEEN |
| Hearing: | 20 February 2014 |
Court: | Ellen France, MacKenzie and Mallon JJ |
Counsel: | S J Ross for Appellant |
Judgment: | 1 April 2014 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of five years and seven months is quashed and a sentence of three years and nine months’ imprisonment is substituted.
DThe minimum period of imprisonment of three years and eight months is quashed and a minimum period of imprisonment of one year and 11 months is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Blackmore pleaded guilty to 18 charges of dishonesty offending[1] and two charges of breach of release conditions.[2] He was sentenced to five years and seven months’ imprisonment with a minimum period of imprisonment (MPI) of three years and eight months. He appeals against his sentence on the ground that it is manifestly excessive. He also contends that a MPI was not required and, if it was required, the term imposed was manifestly excessive. The appeal was brought out of time due to an error. We grant the application for an extension of time to bring the appeal.
Background
[1]These included thirteen charges of obtaining by deception involving property or cash valued at over $1000 (Crimes Act 1961, ss 240(1)(a) and 241(a)); one charge of obtaining by deception involving property or cash of a value between $500 and $1000 (Crimes Act, ss 240(1)(a) and 241(b)); two charges of using a document for a pecuniary advantage (Crimes Act, s 228(b)); one charge of unlawfully taking a motor vehicle (Crimes Act, s 226(1)); and one charge of obtaining accommodation by fraud (Crimes Act, ss 240(1)(b) and 241(c)).
[2]Parole Act 2002, s 71.
The offending occurred between 2 June 2012 and 28 March 2013 in a number of places around New Zealand. It mainly involved Mr Blackmore approaching people and offering to carry out repairs on their vehicles and/or to sell the vehicles on their behalf. He provided written agreements using various assumed identities. Sometimes he used the cars as a “courtesy” car for another customer whose car he agreed to repair. He neither carried out the repairs nor sold the vehicles. In some instances he secured cash from his victims. In one instance he obtained cash by befriending a female mental health patient. He took the woman out of hospital for the day and helped himself to cash totalling $1,800 from her ATM bank card. In another instance he secured accommodation without paying for it.
In total there were 17 victims. The value of the property or cash taken from them ranged between $420.50 and $22,000 with a total value of $62,420.50. Many of the vehicles taken were subsequently recovered. The total loss in the end was $16,395.50.[3]
[3]This was recorded as the value of the reparation sought at sentencing: R v Blackmoore DC Wanganui CRI-2013-043-685, 8 July 2013 at [5].
Mr Blackmore is 47 years old. He has health, alcohol and gambling problems. He has a significant history of offending. He has over 300 convictions for dishonesty related offending, including 84 convictions since 2001.[4] The first four of the present charges occurred when he was on parole.[5] He was recalled to prison and released again.[6] A day later he committed the fifth of the present charges. The balance of the offending took place over the next three months, all while Mr Blackmore was on parole.
[4]The 84 convictions comprise two spates of offending. The first spate occurred between 17 February 2001 and 26 April 2001 and involved 22 offences for which he received a sentence of four years’ imprisonment. The second spate occurred between 7 June 2005 and 17 January 2006 and involved 62 offences for which he received a sentence of six years’ imprisonment.
[5]On 2 November 2006 Mr Blackmore was sentenced to six years’ imprisonment for 62 dishonesty offences committed between June 2005 and January 2006.
[6]Mr Blackmore was recalled on 22 August 2012. He was released on 9 January 2013 with release conditions to expire on 30 April 2013.
Mr Blackmore came before Judge Cameron for sentencing on the present matters.[7] The Judge adopted a starting point of four years’ imprisonment for the dishonesty offending. To that he applied an uplift of three years for Mr Blackmore’s previous offending and six months because the offending was committed on parole. He applied a discount of 25 per cent for Mr Blackmore’s guilty plea. This left an end sentence for the dishonesty offending of five years and seven months’ imprisonment. He considered a MPI of two thirds of that sentence was warranted. He convicted and discharged Mr Blackmore in respect of the breaches of release conditions.
Our assessment
[7]R v Blackmoore, above n 3.
Counsel for Mr Blackmore contends that the sentence was manifestly excessive because the Judge’s starting point was too high and the uplift for previous offending and offending while on parole was too great. He also contends that this was not offending in respect of which a MPI set at the maximum two thirds period[8] was called for. We agree.
The starting point
[8]Sentencing Act 2002, s 86(4).
This was moderately serious offending of its kind. The aggravating features were that it was a sustained spate of offending involving a number of victims, one of whom was particularly vulnerable. On the other hand, although the total value of property and cash taken was moderately high, the amount taken from each victim was of relatively small value and the total loss suffered was also relatively small once the property was recovered. The offending was also not particularly sophisticated and did not involve a serious breach of a position of trust. It involved little in the way of planning or targeting of victims. Rather opportunities presented themselves to Mr Blackmore as he noticed vehicles in need of repair or a person of whom he could take advantage.
The most serious of the dishonesty charges brought against Mr Blackmore each carry a maximum penalty of seven years’ imprisonment.[9]The other dishonesty charges carry maximum penalties of one year’s imprisonment[10] and three months’ imprisonment.[11] As moderately serious offending for its kind, a starting point of around three and a half years’ imprisonment would seem appropriate.
[9]Obtaining by deception (property valued at over $1000), using a document and unlawfully taking a vehicle.
[10]Obtaining by deception (property valued between $500 and $1000).
[11]Obtaining accommodation by fraud.
The starting point of four years’ imprisonment was set by the District Court Judge with reference to three cases. One of those cases is more relevant to the uplift than the starting point.[12] The other two cases are potentially of more assistance. They involved a number of victims from whom relatively small amounts were taken by a recidivist offender.[13] It might be said that those two cases were less serious than the present in that the number of victims and the total sums involved were less.[14] The offenders in those cases also had a smaller number of convictions than Mr Blackmore but nevertheless their histories disclosed significant previous offending.[15] On the other hand, a seriously aggravating feature in those cases, which is not present to the same degree here, is that the victims were all elderly and vulnerable. Overall the present offending is of broadly comparable seriousness to those two cases and so a comparable starting point would be appropriate.
[12]R v Ward [1976] 1 NZLR 588 (CA). In that case a sentence of four years’ imprisonment for a recidivist burglar was reduced on appeal to two years’ imprisonment.
[13]R v Simpson [2008] NZCA 467; Woodcock v Police HC Christchurch A140/02, 20 December 2002.
[14]In R v Simpson, above n 13, $19,200 was taken from four victims. In Woodcock v Police, above n 13, $6,000 was taken from four victims.
[15]In R v Simpson, above n 13, the offender had approximately 100 previous dishonesty convictions and in Woodcock v Police, above n 13, the offender had 43 previous dishonesty convictions.
The starting points in each of those two cases is not, however, clear which makes direct comparisons more difficult. What can be said is that the starting points together with the uplifts for previous offending would appear to have been around two years less in those cases than the starting point plus uplift applied here.[16] This supports our view that the starting point together with the uplift was too high in the present case.
[16]In Woodcock v Police, above n 13, the end sentence was four and a half years’ imprisonment. Assuming a 25 per cent discount for a guilty plea, that would indicate a starting point plus uplift of six years’ imprisonment. In R v Simpson, above n 13, at [13], this Court considered that the starting point plus uplift must have been at least five years’ imprisonment (depending on the guilty plea discount) in light of the end sentence of four years’ imprisonment.
A comparison might be made with other kinds of offending that fall within the same charges. In cases where significantly larger sums are taken over a period of time by a person in a position of trust starting points of around three and a half years’ imprisonment are common.[17] These cases indicate that the starting point of four years’ imprisonment was too high.
The uplift
[17]R v Hii CA99/05, 10 April 2006 ($127,000 taken, starting point of three and a half years’ imprisonment); R v Hapuku [2007] NZCA 368 ($126,887 taken, starting point of three years and three months’ imprisonment); Mamfredos v R [2010] NZCA 524 ($660,826 taken, starting point of three and a half years’ imprisonment); Down v R [2011] NZCA 138 ($850,000 taken, starting point of three years’ imprisonment); R v Davis [2009] NZCA 26 ($277,826.99 taken, starting point of four years’ imprisonment); Thomas v Police HC Auckland CRI-2008-404-343, 9 February 2009 ($312,467.27 taken, starting point of four years’ imprisonment); Sahib v Police [2012] NZHC 3324 ($272,000 taken, starting point of four years’ imprisonment); Mitha v Police HC Auckland CRI-2006-404-0266, 28 September 2006 ($346,672 taken, starting point of three years’ imprisonment).
To that high starting point an uplift of three and a half years’ imprisonment was imposed. There is no doubt that a stern response for the offending was necessary. Mr Blackmore had shown that the sentences for his previous offending, and his recall to prison for offending on parole, had not deterred him. He recommenced his offending on each occasion that he was released from prison within a short time frame of that release. 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.
Here the uplift nearly doubled what would otherwise have been an appropriate sentence for the present offending. An uplift of that size was disproportionate to the culpability of the offending for which Mr Blackmore was being sentenced. That this is so is illustrated by the absence of any examples where a comparable uplift has been imposed in respect of offending at this level of seriousness.[18] There are examples where an uplift of 12 months has been applied for recidivist dishonesty offending.[19] In our view an uplift of around that level gives appropriate recognition to the need to deter and protect the community while maintaining a reasonable relationship with the gravity of the offending.[20]
End sentence
[18]By way of comparison counsel for Mr Blackmore referred to Taylor v R [2012] NZCA 332. In that case, a starting point of four years’ imprisonment was uplifted by two years for offending while in prison, and by a further 12 months for previous offending. On appeal, this Court held that, although the sentencing Judge was right to impose uplifts for both reasons, the size of the aggregate uplift was disproportionate to the starting point. Counsel for the respondent referred to R v Columbus [2008] NZCA 192. In that case, this Court held that an uplift of 12 months’ imprisonment on a starting point of 18 months was appropriate. Counsel compared these uplifts by way of a percentage as the starting point. However, as counsel accepts, the appropriate level of uplift is not determined by percentages but rather by a careful assessment of the need for deterrence and other sentencing principles in arriving at the appropriate sentence for the offending in the relevant case.
[19] Ellis v R [2012] NZCA 513 (the uplift of 12 months was deemed appropriate on appeal because of previous dishonesty offending and because the present offending took place on parole); R v Stevens [2009] NZCA 190; and R v Van Wakeren [2008] NZCA 492.
[20]R v Simpson, above n 13, at [15].
From a starting point of three and a half years’ imprisonment an uplift of one year for previous offending, together with a further six months because the present offending was committed on parole, would be at the upper end of an appropriately stern response. If an already stern starting point of four years’ imprisonment is taken, then the total uplift should be no more than one year. Whichever way it is derived we consider that, before mitigating factors, an appropriate sentence would be five years’ imprisonment. With the 25 per cent discount for Mr Blackmore’s guilty pleas that would mean an end sentence of three years and nine months’ imprisonment. That compares with the five years and seven months’ imprisonment that was imposed. That sentence was therefore manifestly excessive.
Minimum period of imprisonment
It was not inevitable that a MPI would be imposed here.[21] Had it not been imposed, Mr Blackmore’s history would count against release after one third of his sentence anyway. That said, it was not wrong to impose a MPI. As Mr Blackmore’s history shows, he is at a high risk of reoffending. The public are entitled to a break from his offending. Mr Blackmore’s counsel does not dispute the imposition of a MPI.
[21]Compare Woodcock v Police, above n 13, where a minimum period of imprisonment was imposed and R v Simpson, above n 13, where it appears that one was not.
The Judge imposed the maximum period of two thirds of the end sentence. That maximum is imposed rarely and only in cases where the gravity of the offending is sufficiently serious to warrant it.[22] We agree with the submission for Mr Blackmore that the offending in this case was not of this kind. We consider that a MPI of 50 per cent was sufficient to meet the purposes of denunciation, deterrence and protection of the community.
Result
[22]See, for example, R v Gordon [2009] NZCA 145 and Choi v R [2011] NZCA 237 for discussions of cases where minimum periods of imprisonment have been imposed.
The appeal is allowed. The sentence of five years and seven months’ imprisonment with the minimum period of imprisonment of three years and eight months is quashed. In its place we substitute a sentence of three years’ and nine months’ imprisonment with a minimum period of imprisonment of one year and 11 months.
Solicitors:
Stephen Ross & Raukawa Simon, Whanganui for Appellant
Crown Law Office, Wellington for Respondent
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