Chapman v Police
[2020] NZHC 2108
•20 August 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000080
[2020] NZHC 2108
BETWEEN VINNIE LEE CHAPMAN
Appellant
AND
NEW ZEALAND POLICE and DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 20 August 2020 Appearances:
R Ward for the Appellant
K Courteney for the Respondent
Judgment:
20 August 2020
JUDGMENT OF WOOLFORD J
Solicitors: Raymond Donnelly & Co (Office of the Crown Solicitor), Christchurch Counsel: R Ward, Barrister, Christchurch
CHAPMAN v NZ POLICE and DEPARTMENT OF CORRECTIONS [2020] NZHC 2108 [20 August 2020]
[1] On 27 May 2020, Vinnie Lee Chapman was sentenced to two years and four months’ imprisonment on a variety of charges. He was also re-sentenced on other charges to a cumulative four months’ imprisonment, making the total sentence one of two years and eight months’ imprisonment. He now appeals against the sentence as being manifestly excessive.
Factual background
[2] On 15 May 2018, Mr Chapman was sentenced to 90 hours’ community work for operating a motor vehicle with sustained loss of traction. His reporting on community work was poor and he eventually disengaged with the Department of Corrections. At the time of his disengagement, 62 hours were owing.
[3] On 12 September 2019, Mr Chapman was sentenced to three months’ community detention and 12 months’ intensive supervision on three charges of failing to answer court bail, two charges of wilful damage, one charge of driving while disqualified and one charge of possession of an offensive weapon. The wilful damage charges related to breaking two windows in a car belonging to his partner and, on another occasion, breaking a window of his partner’s flat and using a knife to cut his partner’s bed base after flipping it up against a wall. The charge of possession of an offensive weapon related to a tomahawk found under the driver’s seat of a car in which Mr Chapman was a passenger in the right rear seat, immediately behind the driver’s seat.
[4] The community detention to which Mr Chapman was sentenced required him to be present at his curfew address from 8.00 pm until 6.00 am. He returned late on two occasions and then did not return at all from 20 October 2019. Mr Chapman was also required to report weekly to the Department of Corrections in terms of his intensive supervision sentence. Although he initially began the sentence well, he failed to report on 23 October 2019 or thereafter.
[5] On 6 December 2019, Mr Chapman obtained 25 Diesel watches and two watch boxes by deception. The victim was selling Diesel watches on Facebook Marketplace. Mr Chapman contacted him via Messenger. They agreed on a price of $5,500 for the sale and purchase of 25 Diesel watches and two watch boxes. It was agreed that
Mr Chapman would make an internet bank transfer of $5,500 at the time of inspection and collection of the Diesel watches and watch boxes. Mr Chapman met the victim’s girlfriend in a car park that day. After receiving the Diesel watches and two watch boxes, Mr Chapman used his mobile phone to make what appeared to be a phone call to the ANZ Bank to transfer $5,500 into the victim’s ANZ bank account as agreed. Several minutes later, the victim’s girlfriend received what she believed to be a text message from an ANZ Bank customer representative confirming successful payment of $5,500 into her partner’s ANZ Bank account. Believing that her partner had been successfully paid as agreed, she thanked Mr Chapman and left. Approximately 10 minutes later, the victim checked his Facebook account and noticed he had been blocked by Mr Chapman.
[6] Then on 25 December 2019, Mr Chapman again drove while disqualified. His new partner was also in the car. They had an argument and Mr Chapman stopped the vehicle. Both he and his partner exited the car. The argument escalated resulting in Mr Chapman’s partner slapping him in the face, followed by Mr Chapman pushing her away. He then grabbed his partner and threw her into a rock bank, causing her feet to leave the ground. She was unable to get back to her feet immediately.
[7] Mr Chapman’s partner then leaned in to the back seat of the car to retrieve her dog. Mr Chapman hit the windows of the vehicle multiple times before coming up behind her and grabbing her around the neck. She could barely breathe due to Mr Chapman’s grip on her throat. This led to a charge of strangulation. Mr Chapman let his grip go and she moved to the driver’s seat in the car. As a result, Mr Chapman’s partner suffered bruising to her right upper arm, a sore throat and general soreness over her body as a result of being thrown onto rocks.
[8] Mr Chapman then breached his bail on 17 January 2020 while he was found to be in possession of a small amount of methamphetamine upon his arrest on 29 January 2020.
District Court sentencing
[9] The sentencing of Mr Chapman took place in the Christchurch District Court on 27 May 2020 before Judge A D Garland.1 At the outset, the Judge noted the eight charges on which Mr Chapman was to be sentenced, as follows:
(a)19 October 2019: breach of community work by failing to report to work centre;
(b)21 October 2019: breach of community detention by failing to return to curfew address;
(c)23 October 2019: breach of intensive supervision by failing to report to a probation officer;
(d)6 December 2019: obtaining 25 Diesel watches and two watch boxes by deception;
(e)25 December 2019: disqualified driving (third or subsequent) and strangulation;
(f)17 January 2020: breach of District Court bail; and
(g)29 January 2020: possession of methamphetamine.
[10] At the outset, the Judge set out the facts of the offending before turning to the pre-sentence report. He noted that there had been six family violence callouts attended by Police — four in 2018 relating to Mr Chapman’s former partner, and two in 2019 relating to his current partner. The Judge noted that Mr Chapman gave no clear indication to the report writer for disengaging with the Department of Corrections, nor for committing the dishonesty offence.
[11] The Judge noted that Mr Chapman said he was consuming alcohol about once a week, but using methamphetamine daily.
1 Police v Chapman [2020] NZDC 9503.
[12] The report writer noted that Mr Chapman blamed his partner for absconding from his community detention address as well as attacking him during the course of the incident on Christmas Day. The Judge noted that the report writer was of the opinion that Mr Chapman could not be relied upon to comply with either of the electronically monitored sentencing options of community detention or home detention. The report writer also requested that the sentences of intensive supervision and community work be cancelled, the sentence of community detention having expired.
[13] After referring to submissions made on behalf of Mr Chapman and the Police, the Judge found that the strangulation charge was the lead charge. It carried a maximum penalty of seven years’ imprisonment. He adopted a starting point of 15 months’ imprisonment, which placed the offending towards the top of band one as set out in Ackland v Police.2
[14] As to the charge of obtaining by deception, the Judge was of the view that it was a highly premeditated deception which caused substantial loss for the victim. He therefore adopted a starting point on that charge of 12 months’ imprisonment. He then turned to the charges of breaching the sentences of community work, community detention and intensive supervision. The starting point he adopted for these three offences, considered in totality, was six months’ imprisonment.
[15] The Judge then referred to the remaining charges of driving while disqualified (third or subsequent), breach of District Court bail and possession of methamphetamine and found that overall a starting point of two months’ imprisonment for these offences was appropriate. That resulted in an overall starting point of two years and eleven months’ imprisonment. The Judge then allowed a reduction of approximately 20 per cent for Mr Chapman’s guilty pleas, which resulted in a sentence of two years and four months’ imprisonment.
[16] He therefore imposed a total sentence of two years and four months’ imprisonment as follows:3
2 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.
3 Police v Chapman, above n 1, at [19].
(a)Two years and four months’ imprisonment on the charge of strangulation.
(b)Two months’ imprisonment on each of the charges of breach of community work; breach of community detention; and breach of supervision, to be served concurrently.
(c)Twelve months’ imprisonment on the charge of obtaining by deception, to be served concurrently.
(d)One month’s imprisonment on the charge of driving while disqualified (third or subsequent), to be served concurrently. In addition, Mr Chapman was disqualified from holding or obtaining a driver’s licence for a period of one year.
(e)Two months’ imprisonment on the charge of breach of bail to be served concurrently.
(f)One months’ imprisonment on the charge of possession of methamphetamine, to be served concurrently.
[17] The Judge also cancelled the sentence of community work and intensive supervision. In lieu of the sentence of community work, there being 62 hours owing, the Judge sentenced Mr Chapman to one month’s imprisonment on the charge of driving with a sustained loss of traction, to be served concurrently. In relation to the charges on which he has been sentenced to intensive supervision, the Judge re- sentenced Mr Chapman to three months’ imprisonment, also to be served cumultively.
[18] Overall, the sentence imposed by the Judge was one of two years and eight months’ imprisonment. The Judge concluded by saying that in his view, that did not offend against the totality principle.
Appellant’s submissions
[19]Mr Chapman appeals against the sentence on the following grounds:
(a)The starting point adopted by the Judge for the charge of obtaining by deception was too high;
(b)The Judge failed to adequately apply the totality principle; and
(c)The Judge placed inadequate weight on his personal circumstances and there should have been a discrete discount to reflect these.
[20] Mr Chapman submits that the Judge should have reached an end sentence within jurisdiction for a sentence of home detention. He requests this Court, on appeal, to impose such a sentence.
Discussion
[21] Starting with the lead offence of strangulation, there is, in this case, a lack of any real detail in the summary of facts. This was the last charge to which Mr Chapman pleaded guilty. While he pleaded guilty to other charges earlier, including obtaining by deception on 26 March 2020, Mr Chapman maintained his not guilty plea on the strangulation charge, indicating to the Court that he denied impeding his partner’s breathing.
[22] Mr Chapman’s brother was killed in a road traffic accident on 21 April 2020. Mr Chapman was by all accounts quite distraught at this time because he was in custody on remand and unable to be with his family. When he appeared in court on 28 April 2020, Mr Chapman indicated through counsel that he wished to make a compassionate bail application to allow him to attend his brother’s funeral. On the same day, he pleaded guilty to the strangulation charge. The District Court Judge has recorded on the Record of Hearing Sheet:
(Pleaded G after discussions with counsel in Ct in front him on SOF and my explanation change their to her).
The next day, Mr Chapman was granted compassionate bail between 9.00 am and
5.00 pm on 1 May 2020 to allow him to attend the funeral.
[23] As to the offence of strangulation, the summary of facts records Mr Chapman’s explanation as follows:
I had to push her as I wanted to get away from her and she was stopping me from leaving. She never left her feet as a result of the push.
[24] As recorded in the pre-sentence report, Mr Chapman stated that he did not strangle his partner, but just held on to her.
[25] As to the factors set out in Ackland, which are said to be relevant in assessing the seriousness of the offending, the summary of facts does not disclose any threats, any loss of consciousness, multiple events, significant impact on others (particularly children), or breach of a protection order.
[26]As noted in Ackland:4
[30] At the lower end would be offending involving strangulation as an intentional result of pressure being applied to the throat for a brief period, potentially without any of the above factors being present. Such offending might attract a starting point of six months to two years’ imprisonment.
[27] Without necessarily endorsing the bands in Ackland, I am of the view that a starting point of 15 months’ imprisonment was within the range available to the Judge. The question really is whether the initial starting point was then properly able to be increased by 130 per cent to reflect the totality of the offending for which Mr Chapman was being sentenced.
[28] The other major offence for which Mr Chapman was being sentenced was one charge of obtaining by deception. There is no tariff case for sentencing fraud offenders as circumstances vary widely. The amount defrauded is obviously a factor, but cannot be determinative of the seriousness of the offending. In Rako v R, the Court of Appeal stated:5
[10] … Culpability is not to be measured solely or even primarily by reference to the amount at issue. Other aggravating factors are relevant. In particular, we refer to the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.
[29] A similar approach was taken in the earlier case of R v Varjan, in which the Court of Appeal stated:6
[22] Culpability is to be assessed 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
4 Ackland v Police, above n 2.
5 Rako v R [2015] NZCA 463.
6 R v Varjan CA97/03, 26 June 2003.
offending occurred; the seriousness of breaches of trust involved; and the impact on victims.
[30] Looking at these factors, unlike virtually all other fraud offending, this is a one- off offence. Although premeditated, it was not particularly sophisticated. Mr Chapman contacted the victim via Messenger using a Facebook account in his own name, so detection and apprehension was inevitable. There was only one victim, who was not especially vulnerable, being a trader on Facebook Marketplace. There was no breach of trust involved.
[31]As to the impact on the victim, he stated in his Victim Impact Statement:
I am lucky enough that I am living with my partner’s parents in Christchurch and that I don’t have to pay much rent there. I was also currently working at the time so I had money coming in. Overall, I was very disappointed because I always believed that people are good and I believe Vinnie would have paid the money into my account. This has definitely changed the way I think now and I would only ever do cash deals now so I am sure to get the money.
[32] In these circumstances, I am of the view that imprisonment is not inevitable, although there are cases where reasonably substantial terms of imprisonment have been imposed for similar amounts. These usually involve multiple offences, however.
[33] In the present case, the Judge adopted a “starting point” of 12 months’ imprisonment on the charge of obtaining by deception. It is, however, more appropriate to refer to it as an uplift because that is how the final sentence was built- up. It was not a starting point as such. The Judge said he had regard to the totality principle in doing so.
[34] Rather than looking at the uplift in isolation, I am of the view that it should been seen in the context that two further uplifts were applied by the Judge.
[35] The Judge then applied a further uplift of six months for three offences of breaching community work, community detention and intensive supervision. In respect of all three offences, Mr Chapman disengaged with the Department of Corrections more or less at the same time. This is a significant uplift in itself, when the maximum penalty is three months’ imprisonment for breach of community work
and six months’ imprisonment for breach of community detention and intensive supervision.
[36] The Judge then applied a further uplift of two months’ imprisonment for the remaining offences of driving while disqualified (third or subsequent), breach of District Court bail and possession of methamphetamine.
[37] The total uplifts applied to the starting point of 15 months for the offence of strangulation to take account of the other offending were therefore 20 months, which had the effect of more than doubling the starting point for the lead offence.
[38] Standing back and looking at the overall sentence, I am of the view that the adjusted starting point of 35 months’ imprisonment for the offence of strangulation was manifestly excessive. The uplifts of 12 months for the offence of obtaining by deception and six months for the breaches of community work, community detention and intensive supervision should be reduced to six months and two months respectively.
[39] These are uplifts to the sentence on the lead offence and not starting points for the sentences themselves to be imposed for these offences. The sentences for these offences imposed by the Judge were appropriate.7
[40] This would lead to an adjusted starting point for the offence of strangulation of 25 months’ imprisonment. A 20 per cent discount for Mr Chapman’s guilty pleas brings that down to 20 months’ imprisonment.
[41] To this sentence is to be added the cumulative sentences of four months’ imprisonment imposed by the Judge on the original charges on which Mr Chapman was re-sentenced. This brings Mr Chapman’s end sentence to one of 24 months’ imprisonment.
7 12 months’ imprisonment on the charge of obtaining by deception, two months’ imprisonment on each of the charges of breach of community work, breach of community detention and breach of intensive supervision, all to be served concurrently.
[42] Being a short-term sentence, this sentence is able to be commuted to one of home detention. Mr Chapman’s uncle has offered his home in Hinds, near Ashburton, as an address at which Mr Chapman could serve a sentence of home detention. The pre-sentence report notes that the address is suitable as is Mr Chapman’s uncle.
[43] The writer of the pre-sentence report is, however, of the opinion that Mr Chapman is not suitable for an electronically monitored sentence as he has failed to comply with a previous sentence of community work. He has also absconded from his address while on community detention and has failed to report as directed in terms of a sentence of intensive supervision. The report writer also points to many instances of Mr Chapman’s failure to answer District Court bail.
[44] It is here that Mr Chapman’s personal circumstances can most properly be taken into account. He is aged 25 and has never been sentenced to imprisonment before. He has had a difficult background in that he has been exposed to offending and a negative peer group from a young age with little positive influences. He has been involved in alcohol/drug use since a young age. Counsel characterised Mr Chapman’s life, prior to being remanded in custody, as having become increasingly chaotic with no fixed abode and using methamphetamine on a daily basis. He requires stability and rehabilitation. With a sentence of home detention he will have the stability of a residential address and a measure of support from his uncle. Conditions are also able to be imposed which will require him to attend alcohol/drug rehabilitation courses at the direction of the Department of Corrections.
[45] On the other hand, a lengthy prison sentence will place him at risk of becoming more entrenched in his anti-social attitudes and less likely to positively co-operate with rehabilitative efforts.
[46] Although the pre-sentence report stated that Mr Chapman lacked remorse, the Judge noted the advice from counsel that at the time he was interviewed his brother had just died and it was a difficult time for him as the funeral had yet to take place. The Judge also recorded counsel’s submission that Mr Chapman was now indeed remorseful.
[47] This really is Mr Chapman’s last chance to turn his life around. If he breaches the conditions of home detention, I imagine the Department of Corrections will apply to have the sentence cancelled and Mr Chapman re-sentenced, in which case there will be little option but to sentence him to imprisonment.
[48] Accordingly, the appeal is allowed and the sentence of two years and four months’ imprisonment on the charge of strangulation is quashed. In its place, Mr Chapman is sentenced to nine months’ home detention on the basis that he has been in custody for almost six months awaiting sentence and the appeal hearing. All other sentences are also quashed and replaced with concurrent sentences of home detention, as follows:
(a)
Obtaining by deception
Six months’ home detention
(b)
Breach of community work
One months’ home detention
(c)
Breach of community detention
One months’ home detention
(d)
Breach of intensive supervision
One months’ home detention
(e)
Breach of bail
One month’s home detention
(f)
Driving while disqualified
Two weeks’ home detention
(g)
Possession of methamphetamine
Two weeks’ home detention
[49] The cumulative sentences of imprisonment to which Mr Chapman was resentenced are also quashed and replaced with concurrent sentences of home detention, as follows:
(a)
Driving with a sustained loss of traction
Two weeks’ home detention
(b)
Breach of bail (x 3), wilful damage (x 2), driving while disqualified and possession of an offensive weapon
Six weeks’ home detention
[50] The disqualification from holding or obtaining a driver’s licence for a period of one year remains.
[51] The sentences of home detention are on the standard conditions and the following special conditions as outlined in the presentence report.
(a)Not to possess, consume or use any alcohol or drugs not prescribed.
(b)To attend and complete an appropriate alcohol and drug abuse programme to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.
(c)Not to associate with or contact the person named in the pre-sentence report without the prior written approval of a probation officer.
(d)To attend and complete an appropriate family violence programme to the satisfaction of the probation officer. The specific details of the appropriate programme shall be determined by a probation officer.
[52] The sentence of home detention is to be served at the home detention residence specified in the pre-sentence report. On release from prison, Mr Chapman is to travel directly without any deviation to the approved address and await the arrival of the monitoring company in order to be fitted with a GPS tracking device.
Woolford J
2
2
0