Brooks v The Queen
[2017] NZHC 851
•2 May 2017
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2017-412-000011 [2017] NZHC 851
BETWEEN PETER GRAHAM BROOKS
Appellant
AND
THE QUEEN Respondent
Hearing: 26 April 2017 Appearances:
B P Kilkelly for Appellant
R Thomson for CrownJudgment:
2 May 2017
JUDGMENT OF DUNNINGHAM J
[1] On 13 February 2017, the appellant was sentenced to three years and one month imprisonment on two charges of dishonestly using a document, and one charge of theft by a person in a special relationship.1 Mr Brooks appeals on the basis that:
(a) the starting pointed adopted was too high;
(b)the six month uplift for the theft charge did not properly reflect the totality principle;
(c) some discount should have been given for the guilty pleas and remorse.
[2] Taking these errors into account, the end sentence is said to have been manifestly excessive.
1 R v Brooks [2017] NZDC 2802.
BROOKS v THE QUEEN [2017] NZHC 851 [2 May 2017]
Background
[3] In late 2011, the appellant, who was then in his early sixties, met and befriended the victim, another man of similar age, when both were living in a motor camp in South Otago. The victim was unwell at the time and needed help buying his everyday provisions. The appellant offered to help the victim, so the victim gave the appellant his bank card and PIN number. Over a period of two months between mid-August 2012 to mid-October 2012, the appellant made 76 unauthorised withdrawals on the card, totalling $34,503.
[4] The victim also asked the appellant to sell a caravan he owned on his behalf. In return, the appellant would receive a commission. It was agreed that the asking price for the caravan would be $10,000. The appellant sold the caravan for $5,800 and retained the sale proceeds without telling the victim the caravan was sold. By the time the offending was discovered, the appellant had moved elsewhere.
[5] The appellant initially pleaded not guilty when charges were laid in February 2014. After twice failing to appear for a case review hearing, a warrant was issued for the appellant’s arrest on 6 June 2014. A few days later the appellant voluntarily appeared and not guilty pleas were entered to the charges on
24 June 2014. The matter was scheduled for trial on 18 May 2015. However, the appellant absconded and a warrant for his arrest was issued. Approximately
18 months later, the appellant made a voluntary appearance in the Greymouth District Court and pleaded guilty to the charges on 20 December 2016. He was then sentenced in February 2017. Had he not pleaded guilty, counsel agree that a hearing of some four to five days would have been required, and would not have occurred until sometime later in 2017.
District Court decision
[6] The Judge highlighted the serious impact that the offending had had on the victim. He felt betrayed by someone he considered a friend and whom he had trusted while grieving the death of his sister. He was ill and vulnerable and the appellant was aware of that. The money was the victim’s entire retirement savings and he is now left living on the pension from week to week.
[7] Utilising the Court of Appeal’s guidance in R v Varjan, Judge Turner discussed various aggravating factors present in the offending.2 He concluded that the breach of trust was at the highest end of the scale and that the offending in general was very serious.
[8] In setting the starting point the Judge had regard to the cases Rako v R,3
Turner v R,4 and Luoni v Police.5 He considered that the key aggravating factors of the offending were the vulnerability of the victim, the enormous breach of trust, the large number of transactions carried out over a two month period, and the effect of the offending on the victim. In light of this and the cases referred to, Judge Turner took a starting point of two years and nine months imprisonment for the charges of dishonestly using a document. Judge Turner uplifted that by six months for the theft charge. No uplift was taken for the appellant’s previous convictions because they were not for offending of this type.
[9] Judge Turner gave a five per cent discount for the appellant’s personal mitigating factors. These included his age and the fact that, in his general circumstances, imprisonment would be difficult for him. The Judge found that the appellant had not showed remorse.
[10] The Judge did not give any discount for the appellant’s guilty pleas. The appellant had absconded before his trial. The victim had been prepared for trial and had to wait 18 months for the appellant to return to find out that a trial was not required. Therefore the Judge considered that the reasons supporting a guilty plea discount were not present.
[11] The end sentence was therefore three years and one month’s imprisonment on
each charge of dishonestly using a document and six months for the charge of theft by a person in a special relationship, all served concurrently.
2 R v Varjan CA97/03, 26 June 2003.
3 Rako v R [2015] NZCA 463.
4 Turner v R [2014] NZCA 454.
5 Luoni v Police [2016] NZHC 695.
[12] The Judge also ordered reparation in the sum of $15,000 at the rate of $20 a week. This was considerably less than the full amount of the victim’s loss, but was set in light of the appellant’s personal circumstances.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence
should be imposed.6 It is only appropriate for this Court to intervene and substitute
its own views if the sentence being appealed is “manifestly excessive” and not
justified by the relevant sentencing principles.7
Submissions
Submissions for the appellant
[14] The submissions for the appellant primarily focused on the appropriateness of the starting point and the failure to provide a discount for the guilty pleas.
[15] The appellant referred to the cases of Tiopira v Police,8 Palmer v Police,9 and Simpson v Police,10 noting that while the offending in the present case was more serious, the appellant did not have the history of dishonesty convictions that the defendants in those cases had, and so they should not have guided the starting point. Instead, this case was more akin to McMahon v Police11 and Lee v Police,12 and warranted a lower starting point and a smaller uplift for the theft charge.
[16] The appellant also argues that the Judge should have allowed a credit of at least five per cent for the pleas of guilty, in addition to the five per cent given for
personal factors. While acknowledging that the appellant absconded for a significant
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
8 Tiopira v Police [2012] NZHC 1720.
9 Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009.
10 Simpson v Police HC Auckland CRI-2005-404-68, 12 August 2005.
11 McMahon v Police [2017] NZHC 78.
12 Lee v Police HC Auckland CRI-2009-404-231, 23 October 2009.
period of time, and that this did him no credit, the guilty pleas nevertheless prevented the need for a trial which saved considerable time and cost. It would be inappropriate to decline any recognition for the guilty pleas.
Submissions for the respondent
[17] The respondent does not accept that the decision was inconsistent with the sentences in Tiopira, Palmer and Simpson, saying that those three cases all involved lesser culpability. While accepting that McMahon v Police involved more serious offending (the theft of $65,110 over several years from two dependent family members), a three year starting point was taken in that case, albeit it was held to be at the higher end of the Judge’s discretion. However, in light of the three cases cited above (which were not referred to in McMahon), the suggestion that the three years was at the higher end may not be correct. The starting point in the present case also
compared appropriately with the sentence in Rako v R,13 where the offender stole a
backpacker’s debit card and used it to steal $1,800. There, a starting point of
18 months was upheld as “at the top of the acceptable range but…[not] manifestly excessive”.14
[18] The respondent also argues that the Judge’s decision to give no discount for Mr Brooks’ guilty pleas was available to him. In Hessell v R,15 the Supreme Court deliberately moved away from the Court of Appeal’s sliding scale which would have granted around 10 per cent for a plea entered three weeks before trial.16 In calculating the appropriate discount, the Court is entitled to take into account not just when a guilty plea is entered but also acceptance of responsibility, any changes to the charges before resolution, and the benefits to the criminal justice system and victims of an early plea. In this case, Mr Brooks had not fully accepted responsibility, he had benefitted from a reduction in charges and had forced his victim to endure an
18 month wait before entering his pleas.17 In those circumstances, the Judge was
within his sentencing discretion to allow no discount for the guilty pleas.
13 Rako v R, above n 3.
14 At [11].
15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
16 In R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [18], [62].
17 For example, by telling the pre-sentence report writers that he had permission to use the debit card and to take the caravan, he benefited from a reduction in the charges and he brought his
Analysis
Starting point
[19] The appellant relied on comparisons with sentences imposed in other cases, to argue that the starting point was too high. It is instructive, therefore, to consider those cases.
[20] In Palmer v Police, the appellant had found an EFTPOS card with the PIN number written on it. He used it to obtain $10,200. While the sentencing Judge took a starting point of two years imprisonment, on appeal, a starting point of nine months imprisonment was taken because of the opportunistic nature of the offending. In my view, Palmer is a significantly less serious case than the present case, because it did not involve the significant breach of trust that the current offending involved. Furthermore, this case involved a significantly greater sum of money which comprised the victim’s entire retirement savings.
[21] In Simpson v Police, the defendant defrauded an elderly woman who was previously unknown to him of $12,300, by persuading her to lend him money. On appeal, Venning J held that a starting point of two years and six months imprisonment was available. The offending in that case took place over a week, whereas here, the offending took place over three months. The present offending involved an even more serious breach of trust than in Simpson, given the long term friendship established with the victim. Furthermore, the amount obtained in this case was significantly greater. These factors all make the present offending more serious and justify a starting point higher than two years and six months.
[22] In Tiopira v Police, the appellant was sentenced for 33 charges of dishonestly using a document and four charges of receiving stolen credit cards. He had used the cards over a period of 14 days to obtain money and goods totalling $11,606.21. The Judge took a starting point of two years and six months, which was uplifted by six months for the appellant’s 71 previous convictions, many of which were for
dishonesty. The sentence was upheld on appeal.
victim to the brink of trial after an 18 month delay caused by his absconding, the Judge’s
decision not to allow any reduction in sentence was within his sentencing discretion.
[23] Again, the present case can be distinguished in that it involved a greater amount of money and a greater breach of trust, thus warranting the higher starting point.
[24] Finally, I have already considered the case of McMahon v Police, where the
Judge took a starting point of three years to reflect the seriousness of the offending.18
The slightly higher starting point in that case was appropriate because of the greater breach of trust and the greater amount of money taken.
[25] However, in summary, I consider the cases referred to by the appellant demonstrate that the starting point of two years and nine months was within range given the seriousness of the offending. I therefore do not consider that the starting point was outside the range that the Judge could fix in the proper exercise of his sentencing discretion.
Uplift
[26] The Judge uplifted the starting point by six months to reflect the theft charge, for selling the caravan and retaining the proceeds of sale. The appellant submits that the Judge did not take the principle of totality into account, and that the cases above show that the starting point, when combined with the uplift, was too high.
[27] The totality principle is enshrined in s 85 Sentencing Act 2002 and requires the Judge to ensure that the end sentence is not wholly out of proportion to the gravity of the overall offending. The question on appeal is whether the total sentence imposed does, in fact, represent the totality of the particular offending.
[28] While Judge Turner did not expressly state that he considered the end sentence reflected the totality of the offending, the respondent nevertheless maintains that the 39 month starting point taken by the Judge for the totality of the charges was not excessive.
[29] I accept that the charge of theft by a person in a special relationship, which involved the sum of $5,800 from the caravan proceeds, was a serious offence and I
18 See [17] above.
do not consider that the six month uplift was inappropriate. The combined start point of three years and three months was high, but not wholly out of proportion to the gravity of the overall offending.
Guilty plea
[30] The remaining ground focuses on the Judge’s failure to apply a guilty plea discount. The Supreme Court in Hessell v R explained that, in the administration of criminal justice, the Courts give credit in sentencing for a guilty plea principally for policy reasons.19 Section 9(2)(b) of the Sentencing Act 2002 also reflects the fact that a guilty plea delivers some benefit to the administration of justice and to those who would otherwise have to participate in the trial process. Even very late guilty pleas, so long as delivered before the trial is underway, will deliver some benefits, both for the administration of justice and for the victims who would otherwise have
to participate in the trial process.
[31] In my view, this was not a case where a guilty plea was given so late that it delivered no practical benefits. For example, it can be distinguished from R v Stewart, where no discount was given after a guilty plea was entered a week into the trial.20 In that case, the Court of Appeal said that the refusal to give a discount was warranted, as none of the usual justifications, such as the manifestation of remorse, or the saving of time, inconvenience and expense in connection with the judicial process, were present.21
[32] Here, I consider it was entirely appropriate to substantially reduce any guilty plea discount given the defendant absconded for 18 months. However, I still consider it appropriate to recognise that the appellant did, in the end, voluntarily present himself to police and enter a guilty plea. The guilty plea saved the time and cost of a four to five day trial, which would not have taken place for several months after his pleas were entered. Notwithstanding the delays, I consider that a principled
application of the guilty plea discount should have recognised this benefit, and
19 At [45].
20 R v Stewart CA271/98, 2 March 1999.
21 At 5.
afforded a modest discount on sentence. In this case, a discount of five per cent would have been sufficient to reflect the policy considerations at play.
[33] This would have reduced the end sentence of three years and one month to a sentence of two years and 11 months. While only a modest adjustment, I consider it appropriate to allow the appeal to reflect the fact that his guilty pleas should have been taken into account.
Result
[34] The end sentence of three years and one month imprisonment on the two charges of dishonestly using a document is quashed. A sentence of two years and
11 months is substituted. In all other respects the sentencing decision is upheld.
Solicitors:
Brian Kilkelly, Barrister, Dunedin
Crown Law, Wellington
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