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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chadderton v Police

Details

AGLC: Chadderton v Police [2019] NZHC 2072
Case: [2019] NZHC 2072
Decision Date: 22 August 2019

CaseChat Overview and Summary

The appellant, Jason Chadderton, appeals his sentence of 16 months' imprisonment, imposed following his guilty pleas on charges of receiving and dishonest use of a document. The District Court Judge had set a starting point of 17 months, considering multiple offences, multiple victims, and the proximity of the offending to burglaries and thefts as aggravating factors. Additionally, the Judge noted the deliberate, pre-planned nature of the offending and the irrecoverability of the victims' losses. The Judge also considered Chadderton's criminal history, which included multiple convictions for serious offences and non-compliance, and applied an uplift of three months. The sentence was reduced by 20% due to the guilty plea, resulting in a final sentence of 16 months' imprisonment.

The appellant's counsel submits that the sentence was manifestly excessive and argues that the Judge made a material factual error by describing the offending as having taken place "within literally minutes" of the burglaries. Counsel further argues that the uplift for failure to appear was not warranted and seeks an alternate sentence of 10 months' imprisonment. The Crown agrees that a starting point of 12 months would be appropriate.

The Court found that the Judge made a material error by considering an aggravating factor not apparent from the summary of facts or relied upon by the prosecution. The Court noted that sentencing must proceed on the basis of the summary of facts, and the Judge should have either sentenced on this basis or given Chadderton an opportunity to vacate his plea and proceed to a disputed facts hearing. The Court also found that the starting point of 17 months was too high, given the amount taken and the lack of some of the aggravating factors described in previous cases. A more appropriate starting point, the Court found, was 11 months, uplifted by one month for previous convictions, with a 20% reduction for the guilty plea. This results in an end sentence of 10 months.

The appeal is allowed, and the sentence of 16 months' imprisonment is quashed. The Court replaces it with a sentence of 10 months' imprisonment, and the standard and special post-release conditions remain undisturbed.

Orders