Chapman v Police

[2022] NZHC 2585

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-18

[2022] NZHC 2585

BETWEEN

SEAN CHAPMAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

5 October 2022

Appearances:

L Grant for Appellant

B McKenzie for Respondent

Judgment:

6 October 2022

JUDGMENT OF McQUEEN J

[1]                   Mr Chapman was sentenced to two years and six months’ imprisonment in the Hastings District Court1 following his guilty pleas to a number of dishonesty offences,2 breaching release conditions3 and failing to answer bail.4 He now appeals his sentence on the grounds that the District Court Judge erred by failing to provide a full discount for his early guilty pleas or a discount for his genuine remorse.

1      Police v Chapman [2022] NZDC 13779.

2      Burglary (Crimes Act 1961, s 231; maximum penalty 10 years’ imprisonment); unlawful taking of a motor vehicle (Crimes Act, s 226(2); maximum penalty two years’ imprisonment); obtaining by deception (over $1000) (Crimes Act, ss 240 and 241(a); maximum penalty seven years’ imprisonment); obtaining by deception (under $500) (Crimes Act, ss 240 and 241(c); maximum penalty three months’ imprisonment); and theft (under $500) (Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment).

3      Sentencing Act 2002, s 96(1); maximum penalty one year’s imprisonment or $2,000 fine.

4      Bail Act 2000, s 24; maximum penalty three months’ imprisonment or $1,000 fine.

CHAPMAN v NEW ZEALAND POLICE [2022] NZHC 2585 [6 October 2022]

Background

[2]                   The majority of Mr Chapman’s offending is captured by eight obtaining by deception charges. These charges concern the period between July and September 2021 where Mr Chapman used Facebook marketplace to scam other users. Using fake online personas, he would contact people who had placed “wanted to buy” advertisements on the site and tell them he had the items that they were looking for. Following full or partial payment for the items, he would block or stop replying to the purchasers. On two occasions, Mr Chapman advertised the sale of items himself, which he then failed to provide to the purchaser. He obtained $19,822.40 through this scheme.

[3]                   Mr Chapman also pleaded guilty to charges of burglary and the attempted unlawful taking of a motor vehicle, both relating to incidents where Mr Chapman sought to steal two boats between 15 October 2021 and 21 October 2021.

[4]The attempt charge relates to two attempts to steal the same boat, valued at

$27,000, from the owner’s driveway. Mr Chapman and an associate arrived at the address where the boat was parked and, after ascertaining that the victim was not home, Mr Chapman attempted to hook the boat trailer to his vehicle. This was not possible, due to a lock on the trailer, and they drove away. The next day, Mr Chapman and his associate returned to the address, this time with a battery saw, to cut the lock. A witness passing by confronted the pair and prevented them from taking the boat. Both attempts were captured by CCTV footage.

[5]                   Sometime  in  the  four  days   following   those   unsuccessful   attempts,   Mr Chapman broke into a holiday home in Taupō and took a boat valued at $28,500. He subsequently drove to Hamilton with the boat and left it at an associate’s address.

[6]                   The theft charges relate to two petrol drive offs, where Mr Chapman filled his vehicle with petrol and drove off without making any attempt to pay or interact with staff members at the service station.

[7]                   All of the offending occurred while Mr Chapman was subject to release conditions, and seven of the offences (including the burglary, attempted unlawful

taking and theft offending) occurred while he was on bail and following his failure to appear on 22 September 2021.

District Court decision

[8]The Judge took a starting point of 50 months’ imprisonment, constituting:5

(a)18 months for the burglary offence;

(b)two years for the obtaining by deception charges;

(c)six months for the attempted unlawful taking of the boat;

(d)one month for the theft charges; and

(e)one month for breaching release conditions.

[9]                   The Judge noted that Mr Chapman has been previously convicted for serious fraud offending on four occasions, for which he had been sentenced to terms of imprisonment.6 An uplift of six months’ imprisonment for these previous convictions was imposed.7

[10]               Stepping back, the Judge considered 56 months’ imprisonment was too high in the circumstances and made a totality adjustment, reducing this to an adjusted starting point of 50 months’ imprisonment. The Judge observed that this adequately reflected the “seriousness and volume of the offending and the number of victims who have lost in a substantial way here.”8

[11]               The Judge then considered that Mr Chapman was entitled to a 20 per cent discount for his guilty pleas, and a further 20 per cent discount for his personal circumstances.9 Applied to the starting point, this resulted in the end sentence of two years and six months’ imprisonment.

5      Police v Chapman, above n 1, at [8]–[10].

6 At [5].

7 At [10].

8 At [11].

9 At [12].

[12]               Even if there were other discounts available, the Judge said he would not grant them:

[13]                In my view here to set the discounts at greater than 40 per cent would be to lose sight of what has actually happened, and the criminality involved here. In any event, a 40 per cent discount is a substantial discount from the starting point.

Principles on appeal

[13]   The appeal is brought under ss 244 and 250 of the Criminal Procedure Act 2011. If satisfied there has been an error in the sentence and a different sentence should have been imposed, the Court must allow the appeal.10 In any other case, the Court must dismiss the appeal.11 The Court will not intervene when the sentence imposed was within a range that can be properly justified by accepted sentencing principles.12

Submissions

[14]   Mr Chapman says that he was entitled to the full 25 per cent discount for his guilty pleas, as they were entered at the earliest opportunity following full disclosure and legal advice. Full disclosure was completed on 8 February 2022 and guilty pleas were entered on 16 May 2022 at the case review hearing. Mr Chapman relies on R v Vaine, where the Court of Appeal recognised that where guilty pleas were entered promptly after receiving proper legal advice, they should be treated as made at the first reasonable opportunity.13

[15]   Mr Chapman also submits that a discount of seven per cent for his remorse should have been afforded to him by the Judge. He says that his genuine remorse is evidenced through the cultural report and pre-sentence report provided to the court, and a letter provided by him. He also relies on the fact that he has indicated that he would have liked to pay reparation for his offending but given he has been remanded in custody since November 2021, he has been unable to obtain employment to pay back the victims of his offending.

10     Criminal Procedure Act 2011, ss 250(2).

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [20].

13     R v Vaine [2011] NZCA 283 at [35].

[16]   If these discounts are accepted by the Court, Mr Chapman’s counsel notes that his sentence will be reduced to 24 months’ imprisonment, being a short-term sentence under which he would be entitled to an early release at half of his sentence. He says this earlier release means he will be able to start earning money and therefore paying reparations to the victims sooner.

[17]   The Police opposes the appeal. It is submitted that the starting point was within range and the discounts afforded to Mr Chapman were generous. The Police emphasises that, as the Court of Appeal recently confirmed in Wira v R, the focus must be on the end sentence,14 which in this case the Police says cannot be seen as manifestly excessive.

Discussion

Guilty Plea

[18]   I do not accept that the Court erred in declining to provide a full 25 per cent discount for Mr Chapman’s guilty plea. As the Police notes, the timing of the guilty plea is only one of the relevant factors to consider. The strength of the prosecution case and other relevant circumstances must also be assessed.15

[19]   I accept the Police’s submission that the prosecution case was very strong, supported by Facebook messages, Mr Chapman’s bank accounts and the existence of CCTV footage. Much of this evidence would have been known to Mr Chapman to exist even prior to disclosure, which I accept was protracted due to the fact the offending occurred across many districts and required additional efforts to consolidate.

[20]   Early in the hearing, Ms Grant, counsel for Mr Chapman, proposed that should further evidence about the delays in disclosure and its impact on Mr Chapman’s inability to enter pleas be useful to the Court, she would seek an adjournment of the hearing to allow that evidence to be provided. Ms McKenzie submitted that the matter should not be adjourned to allow the filing of further evidence as the end sentence is not manifestly excessive, the end sentence is shorter than would have been the case if

14     Wira v R [2021] NZCA 98.

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [72].

an orthodox approach had been adopted by the Judge, and the timing of the plea is only one factor in the consideration of the discount for an early guilty plea. I indicated that I was not minded to adjourn the hearing for the purpose of permitting further evidence to be filed. The appellant has had the opportunity to bring such evidence and has not done so.

[21]   I am satisfied the 20 per cent guilty plea discount imposed by the District Court Judge was appropriate in the circumstances.

Remorse

[22]   Discounts may be available for offenders where there is tangible evidence of genuine remorse. This is a question of fact and judgement. Mr Chapman relies on R v Rowles and R v Watene.16 In both cases, expressions of remorse by the appellant contained either in letters of remorse or expressed to report writers were seen as demonstrative of genuine remorse by the Court of Appeal.17

[23]   Mr Chapman also says he wishes to pay reparations and that this is relevant to an assessment of remorse. I note that counsel for Mr Chapman submitted to the District Court Judge that no reparation should be ordered as there was no realistic prospect of repayment and an order might act as a trigger for Mr Chapman to return to crime to make ends meet, and the Judge concluded that there was “no utility “in imposing reparation.18

[24]   However, where there has been recidivist offending, the Court is entitled to place little weight on expressions of remorse.19 As the District Court Judge noted,  Mr Chapman has a lengthy criminal history of fraudulent offending. By my count, since November 2015, Mr Chapman has been convicted on 70 charges of accessing a computer system with a dishonest purpose. Most  recently, on 19 February 2021,   Mr Chapman was convicted on 14 charges of accessing a computer system for a

16 Rowles v R [2016] NZCA 208; and Watene v R [2014] NZCA 381.

17 In Rowles v R, there was an additional attempt to engage in restorative justice by the appellant. I note that in this case, Mr Chapman’s initial sentencing submissions refer to his attempts to engage in restorative justice, but that an accidental omission by the Court prevented this from occurring.

18 Police v Chapman, above n 1, at [14].

19 Ngamo v R [2009] NZCA 512 at [9].

dishonest purpose and was sentenced to 10 months’ imprisonment. Mr Chapman was released from prison on 14 July 2021 and that same month began the Facebook marketplace scam for which he is currently before the Court. Albeit more dated, he also has a history of burglary, theft and unlawfully taking or interfering with motor vehicles.

[25]   Further, the current offending spanned several months and involved the scamming of numerous individuals in this time frame. I consider that both factors cast doubt on the genuineness of the remorse that Mr Chapman now expresses.

[26]   The District Court Judge did not explicitly address Mr Chapman’s remorse in his judgment. However, he had written submissions before him on the matter which he plainly did not accept. I consider that it was open to the Judge to decline a further discount for remorse, taking into account Mr Chapman’s repeated offending of this nature.

Other matters

[27]   Even if I considered the discounts advanced by Mr Chapman were appropriate, I do not accept that this would have made the end sentence imposed manifestly excessive.

[28]   First, I accept, as the Police submit, the discount provided for cultural factors of 20 per cent was on the higher side. There is little information about a clear nexus between his background and the offending, which further points to the discount being generous.

[29]   Second, in any case, the sentencing method taken by the District Court Judge favoured Mr Chapman. The Judge incorporated Mr Chapman’s previous offending (typically a step two sentencing consideration)20 into the starting point assessment and then made a reduction for totality. Given the Judge was clear that 50 months appropriately reflected the seriousness and volume of the total offending (and thus was

20     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].

the appropriate starting point from a totality perspective),21 it is likely that if the Moses v R methodology was followed and Mr Chapman’s conviction history considered at the second step,22 the end sentence reached would have been six months greater, as seen below:

Step one: adjusted starting point
Starting point (and totality consideration)	50 months
Step two: personal aggravating and mitigating factors
Uplift for previous convictions	+ 6 months
Guilty plea	-10 months (20 per cent)
Personal circumstances	-10 months (20 per cent)
End sentence	36 months

[30]   Accordingly, an end sentence of 30 months cannot be said to be outside of the range available to the Judge. In fact, if the discounts advanced by Mr Chapman were applied to the correct Moses method, the sentence would have been 30 months in any event.

Conclusion

[31]   In light of the above, I do not accept that the sentence reached by the Judge was manifestly excessive.

21     Police v Chapman, above n 1, at [11].

22     Moses v R, above n 20.

Result

[32]The appeal is dismissed.

McQueen J

Solicitors:

Crown Solicitor, Napier for Respondent