Cavanagh v Police

[2013] NZHC 2232

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000019 [2013] NZHC 2232

NATHAN JOHN DE SEYMOUR

v

NEW ZEALAND POLICE

Hearing:                   29 August 2013

Counsel:                  A Dawson for Appellant

R D Smith for the Crown

Judgment:                29 August 2013

JUDGMENT OF PANCKHURST J

[1]      The appellant Mr De Seymour was sentenced to two years and three months imprisonment for dishonesty offending on 16 July 2013.  This end sentence has been challenged  by Mr  Dawson  on  the basis  that  the starting points  adopted  by the learned Judge were too high, and that the prospect of payment of reparations was discounted on an unreasonable basis.

[2]      The appellant faced four charges.  The first was termed historic since it had occurred in November 2008, being an offence of unlawful taking of a motorbike. Curiously there was no summary of facts available in the District Court, nor in this Court.  However, a victim impact statement is on file.  It reveals that the appellant borrowed a motorcycle worth about $650 from someone he knew.  He did not return it and it has not been seen since.

[3]      In the event the Judge did not impose a separate penalty in relation to this matter, rather dealt with it on what he termed a totality basis, which I take it to mean

SEYMOUR v NEW ZEALAND POLICE [2013] NZHC 2232 [29 August 2013]

that it was covered by the sentences imposed for the two matters I am about to refer to.

[4]      The   first   of   those   is   another   unlawful   taking   which   occurred   in December 2011.  The appellant persuaded the owner of a vehicle that was for sale to take it for a test drive.   It was a car worth about $12,000.   The appellant did not return it.  It was stored for a time in Christchurch and then transported or driven to Queenstown.   There, the appellant set about spray painting the vehicle a different colour, but also removed any identifying plates on the motor and the like as well, as the registration plates.  In the course of this operation, however, the police located the vehicle and the appellant was charged with unlawful taking.  The vehicle was in such a state that the reparation sought in the District Court was a sum of $11,000, almost the full value of the vehicle.

[5]      As Mr Smith, for the Crown, pointed out this morning, the appellant was granted bail in relation to that offence, but did not answer to it.   Instead he disappeared and the next offence was the one committed in May 2012.

[6]      This was somewhat more sophisticated offending.  The appellant advertised a portable sawmill for sale on Trade Me.  The winning bid was one of $8,000.  The appellant persuaded the bidder to pay into his bank account the full purchase price. He then gave instructions that the purchaser should uplift the portable sawmill from an address in Hawarden, North Canterbury for which he provided an address, telephone number and  other details.   Needless  to say, these were false and the purchaser had parted with her money, but was not to see the portable sawmill.

[7]      The fourth charge was a breach of bail, which again was not specifically dealt with in the District Court and one would assume it was met with a conviction and discharge.

[8]      Judge Crosbie described the offending as serious dishonesty.   Indeed, he termed the appellant a “consummate con artist”.   He fixed a starting point of two years imprisonment for the unlawful taking of the car and  a further 18 months imprisonment for the obtaining by deception.   The Judge then imposed what he

termed a “modest” uplift of three months in light of the appellant’s poor previous record.  This produced an indicated sentence of three years and nine months, but the Judge then made an 18 month discount to arrive at the end sentence of two years and three months.   I shall return to the justification for the discount in a moment.   In relation to reparation, an order was made for payment of $19,000, albeit the Judge said that he held out little hope the obligation would be met, rather he likened making the order to “writing on water”.

[9]      Mr Dawson submitted that the two year starting point for unlawful taking was excessive as was the 18 months for the obtaining by deception charge.  He did not criticise the uplift of three months but did contend that the offer of reparation should have been viewed much more seriously, not the least because of evidence now available which shows that the appellant had made substantial payments to the Ministry of Justice in relation to outstanding reparation and unpaid fines as I will confirm shortly.

[10]     The appellant was aged 23 years at the time of the deception charge and

24 years by the time he was sentenced.   He has a formidable list for offences of dishonesty.  The Judge had counted them at 68 in total, although many of these were in the Youth Court, but there were still 25 relevant convictions in the District Court. He had also, I note, received sentences of imprisonment in 2007, 2009 and 2011. Despite  this  somewhat  pessimistic  background,  he  still  received  a  favourable, perhaps charitable, pre-sentence report.  It included this:

Based on his criminal history and current circumstances I assess his risk of harm to others as low and likelihood of reoffending as high, although it is noted that his offending is abating.  Given that he has advised of changing his lifestyle and has work opportunities in Dunedin, I assess him as able to comply with the recommended sentence of community detention, intensive supervision and as able to service reparation when employed.  This will hold him to account, provide a loss of liberty, enable him to address his complex needs with a psychologist and make amends to his victims.

The recommendation which followed was for a sentence of community detention, coupled with intensive supervision and payment of reparation.

[11]     Mr Dawson drew attention to a print-out from the Ministry which confirmed that the appellant had made reparation and fine payments totalling well over $8,000

in the period from May 2011 to July 2013.  This was despite his having incurred a number of fines during that period which of course increased his debt.  I cannot help but note that the vast bulk of the repayments was a sum of $7,600 paid by cheque at the outset, following which the appellant paid amounts of about $20 or $25 a week over an extended period.  This, of course, was relied upon to doubt the assessment of the Judge as to the likelihood of future reparation payments.

[12]     More than that, however, counsel also challenged the starting points adopted for the main offences.  It was submitted that these were not supported by precedents and were simply beyond the available range for offences of this kind.

[13]     It is convenient to note the submissions of Mr Smith before I respond to the appellant’s submissions.  He filed a written submission in advance of the hearing, but also made an oral submission before the lunch break.  In that, Mr Smith expressed a number of concerns about the sentencing process and posed by way of an alternative approach that it was perhaps appropriate for this Court to revisit the sentencing exercise afresh.   His concerns related to the starting points adopted, particularly when coupled with the three month uplift for previous convictions.  But of greater concern, was the reduction of 18 months which was applied to reduce the indicated sentence of three years and nine months back to one of two years and three months.

[14]     Mr Smith submitted that this reduction simply did not bear scrutiny; there was no rational basis upon which the pleas of guilty or personal mitigating factors could account for such a reduction.  I agree.  Indeed the 45 percent discount must be described as unprincipled.   To my mind, it discredits the sentencing exercise as a whole and I therefore intend to adopt Mr Smith’s suggestion that it is appropriate to approach the sentencing exercise afresh.

[15]     As to that, he submitted that sentences of 18 months for the unlawful taking,

12 months for the obtaining by deception, plus a six month uplift for his previous record warranted an indicated sentence of three years imprisonment.   Mr Smith submitted as well that any discount in recognition of guilty pleas could not possibly be more  than 15  percent,  even  accepting that  there  was  the possibility of,  and

inclination to pay, reparation.  On this basis an end sentence, rounded slightly, would be two and a half years imprisonment.

[16]     Mr Dawson, on the other hand, contended that even with only a 15 percent reduction for the belated pleas of guilty and some allowance for the reparation offer, that an end sentence well under two years imprisonment should result.

[17]     In my view, the appropriate starting point for the two lead offences were

12 months and nine months, respectively.  These were both serious offences of their kind, but the sentences indicated are at the appropriate level.  To that, I adopt the uplift that the Judge applied of three months to arrive at an end sentence of two years imprisonment.

[18]     I agree with the suggestion that a 15 percent reduction is as much as is indicated  for  what  were  late  pleas  of  guilty  and  the  offer  of  reparation.    This produces an end sentence of 20 months imprisonment.  It also of course opens the door to  commute the prison  sentence in  favour of home detention,  or the like. However, I am far from persuaded that this is appropriate.

[19]     I agree with Judge Crosbie that the appellant is a conman.  About the only positive indicator on the horizon is the fact that he did pay a substantial amount of reparation in the period I mentioned earlier.  Otherwise, he has offended repeatedly for a significant period and also acted less than responsibly when, for example, released on bail.  Accordingly, the sentence reduced to 20 months is one which will have to be served.

[20]     The terms are 11 and nine months, respectively.   In relation to the other charges of unlawful taking and breach of bail, the appellant is simply convicted, but discharged.

Solicitors:

A Dawson, Public Defence Service, Dunedin

R D Smith, Dunedin