Calder v Police

[2017] NZHC 1430

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000107

[2017] NZHC 1430

IN THE MATTER OF

an appeal against sentence

BETWEEN

NATHAN PETER CALDER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 June 2017
Counsel:	N Soondram for the Appellant A D Luck for the Respondent
Judgment:	26 June 2017

(ORAL) JUDGMENT OF EDWARDS J

Solicitors:    Ministry of Justice (Public Defence Service), Auckland Meredith Connell, Auckland

CALDER v POLICE [2017] NZHC 1430 [26 June 2017]

[1]    Mr Calder was sentenced to 25 months’ imprisonment and ordered to pay reparation in the sum of $17,200.1 This followed guilty pleas to the following charges:

(a)Two charges of obtaining by deception (over $1,000);2

(b)One charge of obtaining a document for pecuniary advantage;3

(c)One charge of attempting to obtain a document for pecuniary advantage;4 and

(d)One charge of using a document for pecuniary advantage.5

[2]    Mr Calder appeals that sentence on the grounds that the starting point adopted by the District Court Judge was too high and resulted in a manifestly excessive sentence. He submits that a community-based electronically monitored sentence was appropriate in all the circumstances.

The offending

[3]    In late 2015, Mr Calder accessed a public internet website looking for details of people who were born in New Zealand but who had died overseas. He found the biographical details for Mr Kless and Mr Rohdes. The appellant used those details to support false applications for New Zealand passports.

[4]    An application for a passport in the name of Mr Rohdes was completed on    5 October 2015. That passport was issued on 16 October 2015. In between that date, and January 2016, Mr Calder used that passport to obtain a cheque account and obtain personal loans in Mr Rohdes’ name totalling $17,200.

1      Police v Calder [2017] NZDC 4653.

2      Crimes Act 1961, ss 240(1)(a) and 241(a). Maximum penalty seven years’ imprisonment.

3      Crimes Act, s 228(1)(a). Maximum penalty seven years’ imprisonment.

4      Crimes Act, ss 72 and 228(1)(a). Maximum penalty three and a half years’ imprisonment.

5      Crimes Act, s 228(1)(b). Maximum penalty seven years’ imprisonment.

[5]    On 30 September 2016, Mr Calder applied for another passport in the name of Mr Kless. The Department of Internal Affairs became aware that the application was false and informed the Auckland Police.

Personal circumstances

[6]    At the time of the offending, Mr Calder was 22 years of age and a university student. He has eight prior convictions: a drink driving offence committed in 2011, six other fraud related charges from 2013 and 2014, and a conviction for failing to answer District Court bail in 2015.

[7]    The pre-sentence report assessed Mr Calder’s risk of reoffending as low. Substance abuse and an unstructured lifestyle were identified as contributing factors to his offending.

[8]    As recorded in the report, Mr Calder had already made considerable efforts at rehabilitation. Those included engaging in focused casework sessions with the probation officer and enrolling in a CADS course. He did not complete that course as he did not like the group environment, but he nevertheless continued with one on one sessions with a psychologist. Mr Calder had also completed a one year programme through Radio Broadcasting New Zealand and was in full-time employment.

[9]    The report writer noted that Mr Calder demonstrated genuine remorse for the families of the deceased persons that he used to secure the passports. It is also recorded that he has been diagnosed with depression and anxiety for which he is receiving treatment.

[10]   A proposed address to serve an electronically monitored sentence was identified. The occupant, Mr Calder’s grandmother, was assessed as suitable, but the property was not. The pre-sentence report writer’s sentence recommendation was for community work.

District Court decision

[11]   The District Court Judge reviewed the nature of Mr Calder’s offending and his personal circumstances in some detail.

[12]   He identified the numerous aggravating features of his offending. Firstly, he classified the offending as sophisticated, planned and premeditated. Further, he considered the offending to be repetitive in nature and an attack on the integrity of the passport system. He identified the victims as vulnerable. The fact that the offending took place whilst facing Court charges for fraud, and being subject to a sentence of supervision, was a further aggravating factor which the Judge labelled as “somewhat brazen”.6

[13]The Judge considered the loss

[14]   The Judge considered the loss to the victims was significant and the offer to pay reparation was meaningless, given Mr Calder had not made any payments to date.

[15]   In fixing a starting point, the Judge referred to the general principles relating to sentencing for fraud related offending as set out in R v Varjan.7 He then sentenced Mr Calder as follows:

(a)He adopted a starting point of 30 months’ imprisonment for the charges of using a document for pecuniary advantage;

(b)He applied a three month uplift to take into account Mr Calder’s other charges;

(c)He applied a three month uplift to reflect previous convictions;

(d)He reduced the sentence by two months to reflect Mr Calder’s youth and expressions of remorse; and

6      Police v Calder, above n 1, at [33].

7      R v Varjan CA 97/03, 26 June 2003; R v Varjan (No 2) CA 97/03, 1 July 2003.

(e)He applied a 25 per cent discount for guilty pleas.

1. Mr Calder was also ordered to pay $17,200 in reparation.

Approach on appeal

[17]   Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[18]   In any other case, the Court must dismiss the appeal.8 An appeal court will not intervene unless there is a material error and, if so, the appeal court will then go on to form its own view of an appropriate sentence.9

Was the starting point too high?

[19]   There is no tariff decision for offending of this nature. In R v Varjan, the Court of Appeal noted that the circumstances of the offending and the culpability of the offender vary widely and that culpability is to be assessed:

[22] … 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.

[20]   A particularly aggravating feature of Mr Calder’s offending was the use of the identities of deceased persons to facilitate the fraud. No doubt that would have caused significant distress to the deceased persons’ families. Further, as the Judge identified, this was planned and premeditated offending. The fact that the offending occurred while subject to orders of the Court is another aggravating feature. In terms of losses, the sum obtained was $17,200.

8      Criminal Procedure Act 2011, s 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

[21]   The Crown referred me to two cases.10 I do not consider either of them to be directly comparable as the offending was significantly more serious than in the instant case. In Cole v Police, false names had been taken from the headstones of deceased children and used to open bank accounts, from which the appellant obtained 18 credit cards. The amount taken was $450,000.

[22]   The case of Rogers v R also involved the use of birth certificates of three deceased children. Those birth certificates were used to claim welfare payments. There was separate offending involving the withdrawal of money from the accounts of two other deceased individuals. The total losses caused by the offending amounted to approximately $180,000, from which the appellant obtained approximately

$85,000. The appellant had also absconded whilst on bail. The four year starting point was regarded as stern in that case and only just within range.11

[23]   Mr Calder’s counsel also referred me to two cases which I consider are more directly on point. In Fannin v Police, the appellant faced six charges of obtaining by deception (over $1,000), five charges of using a document for a pecuniary advantage, and two charges of obtaining by deception ($500 – $1,000).12 Mr Fannin had obtained the name and date of birth of a missing person and used that information to obtain a copy of that person’s birth certificate. That birth certificate had been used to obtain a driver’s licence and three separate credit cards. Identity theft had also been committed against two of Mr Fannin’s work colleagues. He had taken their driver’s licences from their wallets and used their details to obtain four credit cards, two bank accounts and four loans. The total amount obtained from all of the victims was $67,408.

[24]   The District Court Judge in that case adopted a starting point of 15 months’ imprisonment due to the significant breach of trust, the high level of premeditation, the repetitious and ongoing nature of the offending and the significant loss that had resulted. A final sentence of nine months’ home detention was adopted. The reparation order made by the Judge was quashed on appeal but otherwise the decision was upheld and no adverse comment was made about the starting point.

10     Cole v Police [2001] 2 NZLR 139 (HC); Rogers v R [2010] NZCA 48.

11 At [15].

12     Fannin v Police [2016] NZHC 168.

[25]   However, I do note Mr Luck’s submission that the starting point was not directly before the Court.

[26]   In Clarke v Police, the appellant faced one charge of using a forged document and five charges of dishonestly using a document for a pecuniary advantage.13 The appellant in that case had used multiple identities to claim multiple benefits over a three year period. The total overpayment received by him was $41,214.92.

[27]   The Judge adopted a starting point of 20 months’ imprisonment in that case, noting the premeditation of the fraud, the quantum defrauded and the extended period of time over which the offending took place. That starting point was found to be clearly in range in that case.

[28]   I consider the offending in both Fannin and Clarke is more severe in some respects than the present offending. There were more charges before the Court and a higher amount was obtained in both cases. However, the fact that deceased persons’ identities were used by Mr Calder and the documents obtained were passports are aggravating features which places his offending at least on par with the offending in both of these cases.

[29]   In light of these cases, I consider a starting point of 17 months’ imprisonment would have been appropriate for the two charges of using a document for pecuniary advantage. It follows that the 30 months imprisonment selected by the Judge was outside the applicable range.

[30]   The Judge applied a three month uplift for the remaining charges (attempting to obtain a document for pecuniary advantage and two charges of obtaining by deception). Mr Calder does not directly challenge the quantum of that uplift, although submits that, applying totality principles, it should be reduced to one or two months if the starting point adopted is lowered. I agree with those submissions and apply an uplift of two months for those charges.

13     Clarke v Police [2015] NZHC 1692.

[31]   That brings the starting point for all of the offending to 19 months’ imprisonment before discounts for mitigating features and the guilty plea are applied.

Adjustments for personal mitigating and aggravating features

[32]   The selection of a starting point which is outside the applicable range does not necessarily result in a manifestly excessive sentence. The focus of appeal is on the end sentence, and not its individual components.14

[33]   The Crown submits that the adjustments made to the starting point were generous to Mr Calder. Counsel for the Crown submits that an uplift of greater than three months for Mr Calder’s previous convictions could have been applied. Further, that a discount of two months for Mr Calder’s relative youth and remorse was generous. Mr Calder was aged between 21 and 22 at the time of the offending, it was not his first offence, and the pre-sentence report writer had noted that his remorse “may be attributed to the interest from the media as he expressed feeling victimised by their portrayal of his offending”.

[34]   An uplift for prior convictions needs to be proportionate to the starting point selected. In light of the lower starting point adopted, I consider an uplift of two months for prior convictions is towards the higher end but nevertheless still within range.

[35]   I also consider that further discounts for personal mitigating features may have been available to Mr Calder, given the significant rehabilitative efforts he had already made by the time of sentencing. The fact that Mr Calder had been diagnosed with mental health issues may not have been expressly taken into account by the District Court Judge. Nevertheless, the two month discount was not directly challenged on appeal and it represents a greater discount than previously applied given the lower starting point adopted. Accordingly, I accept that the two month discount was appropriate.

[36]   Applying the 25 per cent discount for the guilty plea results in an end sentence of 14 months’ imprisonment.

14     Tutakangahau v R, above n 9, at [36].

Should home detention be considered?

[37]   As the end sentence reached is below the two year threshold, consideration of home detention or another community based sentence is required.

[38]   I consider there are a number of features which point towards home detention in this case. Mr Calder’s rehabilitative efforts, his genuine remorse and insight into his offending, coupled with his mental health issues lean heavily in favour of a home detention sentence.

[39]   However, as at this date, an appropriate address for an electronically monitored sentence has not been identified. No other options have yet been explored. If an appropriate address may be identified in the future, then application for home detention may be made in the District Court. I intend to reserve leave for that purpose.

[40]   Accordingly, in the circumstances, I allow the appeal, quash the sentence and substitute it with a sentence of 14 months’ imprisonment, with leave to apply for home detention in the event that a suitable address can be identified.

Result

[41]   The appeal is allowed. The sentence of 25 months’ imprisonment is quashed and substituted with a sentence of 14 months’ imprisonment. Leave to apply for home detention is reserved. The order of reparation remains the same.

Edwards J