Chadderton v Police

[2019] NZHC 2072

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-324

[2019] NZHC 2072

BETWEEN

JASON CHADDERTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 August 2019

Appearances:

T Clee for Appellant

E Wolley for Respondent

Judgment:

22 August 2019

ORAL JUDGMENT OF WALKER J

CHADDERTON v NEW ZEALAND POLICE [2019] NZHC 2072 [22 August 2019]

[1]    Mr Chadderton appeals his sentence of 16 months’ imprisonment on one count of receiving and nine counts of dishonest use of a document.1 This sentence was imposed following guilty pleas.

[2]    On behalf of Mr Chadderton, Mr Clee submits the sentence imposed was manifestly excessive. The Crown does not oppose the appeal. It observes that the starting point adopted by the District Court Judge does not sit comfortably alongside authorities involving more serious offending.

Offending

[3]    The receiving charge and one charge of dishonest use of a document were prosecuted by the Crown. A wallet was taken from a parked car, and a credit card was taken from a home while the victims were sleeping. Mr Chadderton and his partner and co-defendant, Ms Rewa, made use of these stolen credit cards. Over a period from 14 to 20 January 2018, Mr Chadderton and Ms Rewa used the stolen credit cards, unlawfully obtaining $998.69.

[4]    The remaining dishonest use of a document charges were prosecuted by the Police. These concerned the use of credit cards stolen from a victim’s home overnight. Between 16 and 19 January 2018, Mr Chadderton used these cards in a range of transactions, primarily at petrol stations. He unlawfully obtained a sum of $608.99.

[5]    Importantly, the summaries of facts to which Mr Chadderton pleaded guilty do not sheet home responsibility to Mr Chadderton for the taking of the credit cards. The charges relate only to the use of the stolen cards.

District Court decision

[6]    Judge Ronayne set a starting point of 17 months. His description of the aggravating features of the offending is of particular importance to this appeal and is set out in full:2

1      All charges carry a maximum of seven years’ imprisonment.

2      R v Chadderton [2019] NZDC 13162.

[12] The aggravating features are of course that you committed multiple offences, that there are multiple victims, that these cards that you received and used came into your possession in extremely close proximity to a burglary and a theft in which the cards were taken. It is impossible to imagine somebody committing a burglary and then within literally minutes, handing the card over to you. That is an aggravating factor that I cannot ignore. I do not know who was in that van or who was in that house, but you happened to be using the cards very soon afterwards.

[7]    The Judge also considered the offending was aggravated because it was deliberate, pre-planned and premeditated, and because it was motivated by pure greed. Additionally, the losses suffered by the victims were not recoverable.

[8]    The Judge made reference to Mr Chadderton’s criminal history and rejected defence counsel’s submission that there should be no uplift because of the age and nature of them. These included convictions in the District Court for burglary, theft, receiving, and car conversion, a number of violence convictions, and “no less than 41 non-compliance offences.”3 He recorded that almost a full range of sentencing options have been tried, from imprisonment down.

[9]    An uplift of three months was applied to reflect both this criminal history and a failure to appear by Mr Chadderton which had delayed the case without reasonable excuse. A 20 percent discount for guilty plea was applied, being the sole mitigating factor. This resulted in an end sentence of 16 months’ imprisonment. The Judge considered home detention was inappropriate in light of Mr Chadderton’s multiple previous bail breaches and non-compliance offences.

Submissions

[10]   Mr Clee submits the Judge made a material factual error by describing the offending as having taken place “within literally minutes” of the burglaries. He noted that in relation to the dishonest use of a document charge prosecuted by the Crown, the burglary could have taken place any time from 9.30 pm but the first use of the card was not until  2.52  am  the following morning.  He also  criticises  the  uplift  for  Mr Chadderton’s failure to appear.

3 At [8].

[11]   Mr Clee says the end sentence of 16 months is manifestly excessive and seeks an alternate sentence of 10 months’ imprisonment.

[12]   The Crown notes that the prosecution was managed in part by the Crown (who sought a start point of nine months) and in part by the Police (who sought a sentence of three to six months). Looking at the totality of the offending, the Crown accepts a global start point of 12 months would be appropriate.

[13]   Both Mr Clee and the Crown record that Mr Chadderton has already spent the equivalent  of  14 months  in  custody,   having  been  remanded  in  custody  since   9 February this year because of a breach of bail.

Jurisdiction on appeal

[14]   Appeals against sentence are governed by ss 244, 245 and 250 of the Criminal Procedure Act 2011. I must allow the appeal if the appellant can point to a material error, either intrinsic to the Judge’s reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.4 Without a material error, for example a sentence that is manifestly excessive, manifestly inadequate, or wrong in principle, I am not able to intervene.

Analysis

[15]   Having had the advantage of time to consider the principles at issue, I do consider Judge Ronayne made a material error. A sentencing Judge is entitled to draw inferences from agreed summaries of facts.5 However, there are limits. In Waiapu, Lang J described the extent to which Judges can draw inferences from summaries of facts at sentencing:6

… it is now well established that where a guilty plea has been entered on the basis of an agreed summary of facts, sentencing must proceed on the basis of that summary. Where the sentencing Judge proposes to take into account an aggravating factor that is not apparent from the summary of facts or relied upon by the prosecution, the Judge must indicate the weight likely to be given to the factor. If it is disputed, the defendant must have the opportunity to

4      Tutakangahau v R [2014] NZCA 279 at [29]-[31].

5      Pokai v R [2014] NZCA 356 at [31].

6      Waiapu v R [2016] NZHC 2491 at [14].

contest it at a disputed facts hearing. In the present case that would have placed the Crown in the invidious position of being required to side with the defence in disputing the aggravating factor that the Judge considered should be taken into account.

[16]   Waiapu concerned a sentence appeal where a Judge had treated an indecent assault charge as representative rather than limited to the specific incidents in the agreed summary of facts. Lang J considered the District Court should have sentenced on the basis of the summary of facts; or given the defendant an opportunity to vacate his plea and proceed to a disputed facts hearing.

[17]   I consider that a similar error is present here. The Judge treated the proximity of Mr Chadderton’s offending to the commission of a burglary as an aggravating factor. This is not a case of inferring an aggravating factor from the statement of facts; for example, inferring pre-meditation from the behaviour of the accused prior to the offending. Rather, in my view, the Judge implied criminality that Mr Chadderton had not pleaded guilty to and that was not relied on by the prosecution; Mr Chadderton was not charged with either theft or burglary, only with the use of the cards. While the Judge’s approach is understandable in context, I consider that sentencing may only proceed on the basis of the summary of facts.

Starting point

[18]   Even  if  it  was  available  to  the  Judge  to  treat  the  proximity  between  Mr Chadderton’s offending and the burglaries or thefts as aggravating, I consider the start point was manifestly excessive.

[19]   The parties have cited the following cases as providing assistance in determining the start point, Doctor v Police7  and Rako v R.8   In Doctor v Police,    Mr Doctor pleaded guilty to six charges of using a document for pecuniary advantage and two of theft. He broke into cars, stole EFTPOS/credit cards, and used them for a number of purchases. He illegally obtained several hundred dollars. On appeal, Mallon J imposed a start point of 12 months’ imprisonment.

7      Doctor v Police [2017] NZHC 1084.

8      Rako v R [2015] NZCA 463.

[20]   In Rako v R, Mr Rako was convicted of 11 charges of using a document for pecuniary advantage, theft, conversion of a motor vehicle, taking a motor vehicle, and driving while forbidden. Mr Rako took a house-guest’s debit card and made purchases totalling some $1,800. The Court of Appeal concluded “a starting point in a range from 12 to 18 months’ imprisonment has been applied where credit or debit cards are unlawfully used on multiple occasions resulting in losses of the order of $2,000 to

$6,000”.9   The  Court  also  noted  culpability  was  not  to  be  determined  solely by

reference to the amount taken but also to “the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim, and a breach of trust.”10 The Court considered the starting point of 18 months for the document offending was “at the top of the acceptable range” but did not disturb it, referring in particular to the breach of trust element.

[21]I have also found Linford v Police11 and Walsh v Police12 of some assistance:

(a)In Linford v Police, Brewer J upheld a start point of 18 months (and noted a higher start point would have been justified) for multiple counts of receiving and using credit cards. The offending involved four victims, over 40 transactions, and $4,508.58 illegally obtained.

(b)In Walsh v Police, Mr Walsh was convicted of the dishonest use of his aunt’s EFTPOS card, and the theft and use of two other EFTPOS cards (one theft involved “a brief tussle”). Across all offending a total of

$2,700 was taken. Woodhouse J substituted a start point of 12 months on appeal. I note, however, that the Court of Appeal in Rako suggested the Judge would have been entitled to adopt a higher start point.

[22]   My review of these cases leads me to conclude that the 17 month start point imposed by the sentencing Judge is too high. There are two reasons: First, it is near the top of the range identified in Rako for unlawful use of credit cards resulting in losses of $2,000-$6,000. In this case, a figure of only approximately $1,600, was

9 At [9].

10 At [10].

11     Linford v Police [2017] NZHC 2166.

12     Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.

taken. Secondly, this case lacks some of the aggravating factors described in Rako. There is no breach of trust element, and the offending appears to have been conducted in a relatively unsophisticated way.

[23]   In my view, a start point of 11 months is more appropriate. This offending is less serious than that in both Doctor and Walsh because it does not involve an actual theft.

[24]   The District Court Judge applied  a three-month  uplift to account for both  Mr Chadderton’s previous convictions and failure to appear. In my view, an uplift was appropriate; however, it requires adjustment downwards to reflect the lower start point I consider appropriate. In my view, a one-month uplift is appropriate.

[25]   The District Court applied a 20 percent discount for the guilty pleas. I understand these were entered at a case review hearing. Neither party has challenged the 20 percent guilty plea discount.

[26]   A start point of 11 months, uplifted by one month for previous convictions, with a 20 percent (two month) reduction for guilty plea, produces an end sentence of 10 months.

Conclusion

[27]   I allow the appeal. I quash the sentence of 16 months’ imprisonment. I replace it with a sentence of 10 months’ imprisonment. I do not disturb the standard and special post-release conditions, numbered 1 to 4 in the Pre-sentence report.

.................................................

Walker J