Chapman v Police
[2015] NZHC 498
•17 March 2015
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2014-454-000021 [2015] NZHC 498
BETWEEN CHRISTOPHER MICHAEL CHAPMAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 February 2015 Appearances:
F Steedman for appellant
E M Fitzherbert for respondentJudgment:
17 March 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Christopher Chapman, pleaded guilty to 17 charges of dishonesty (laid by the police) and two of breach (laid by the Department of Corrections). Mr Chapman was subsequently sentenced by Judge Smith in the District Court at Palmerston North to four years, eight months and two weeks’ imprisonment.1
[2] Mr Chapman now appeals that sentence as being manifestly excessive on the ground that the Judge did not apply the totality principle correctly.2
1 Police v Chapman DC Palmerston North CRI-2014-043-002350, 12 November 2014.
2The totality principle is reflected in s 85(2) of the Sentencing Act 2001, which provides: If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
CHAPMAN v POLICE [2015] NZHC 498 [17 March 2015]
Facts
[3] The offending to which Mr Chapman pleaded guilty occurred between May and September 2014. It comprised:
(a) Obtaining by deception (May/June 2010): Mr Chapman went to a number of suppliers of merchandise (such as RDI and Repco), and charged goods (such as power tools, farm supplies and milk powder) to accounts of previous employers. As a result he faced eight separate charges of obtaining property by deception. Five of those charges (19 May; 20 May (x 2); 27 May; 30 May and 11 June) involved
property worth more than $1,000.3 Two charges (27 May) involved
property worth more than $500 but less than $1,0004 and one (27 May also) involved property worth less than $500.5 Reparation of
$20,367.18 was sought. In addition, on 20 June Mr Chapman, acting with an associate, rang a tractor dismantling business and offered to sell a tractor for $7,000. The operator of the business subsequently paid Mr Chapman a $3,000 deposit. Mr Chapman acknowledged having no tractor to sell. One further charge, obtaining by deception, reflected that offending. Reparation of $15,000 was sought from Mr Chapman on that charge.
(b) Conversion (June/July 2014): On three separate occasions (22 June,
12 and 14 July) Mr Chapman took vehicles for test drives and did not return them. On 14 July he used the converted vehicle to hire a trailer for a day. He did not return that trailer either. The total value of the property involved was some $53,000. One of the vehicles, valued at
$23,990, was never recovered. The others were. Reparation of that amount was sought.
(c) Receiving (August 2014): Between 10 and 14 August police found
Mr Chapman and an associate in a vehicle. Mr Chapman admitted
3 Carrying a maximum penalty of seven years’ imprisonment, Crimes Act 1961, s 241(a).
4 Carrying a maximum penalty of one year’s imprisonment, Crimes Act 1961, s 241(b).
5 Carrying a maximum penalty of three months’ imprisonment, Crimes Act 1961, s 241(c).
paying $500 for the vehicle, knowing it to be stolen. The vehicle was valued at $3,020.
(d)Obtaining by deception (August 2014): On 13 and 14 August Mr Chapman used a stolen credit card (twice successfully and three times unsuccessfully) to obtain $2,000, for which reparation was sought. One representative charge reflected that offending.
(e) Burglary (September 2013): Mr Chapman and an associate entered a private home during daytime on Sunday 12 September 2014. They took five air rifles out to their vehicle. They returned, picked up a television, were interrupted by the occupier, dropped the television and fled. The occupier noted their vehicle’s registration number. The vehicle belonged to Mr Chapman’s employer, who took him to the police the next day. The stolen property was returned.
(f) Breach (April and May 2014): Mr Chapman breached sentences of supervision and community work, imposed for previous dishonesty offending. He faced two representative charges accordingly.
[4] Mr Chapman has a relevant history of offending associated, as is the offending to which this appeal relates, with his use of methamphetamine. The Judge summarised Mr Chapman’s previous offending in this way:6
[18] Before I begin going through the sentences I want to note in particular your previous history. You began appearing before the Courts in
2004 and that has continued through until 2013 although, as I have noted
during Mr Steedman’s submissions, you were clean for a period from 2009
until April of 2013 in terms of methamphetamine use and that your offending did not occur at that time. During the last approximately nine and a half years you have convictions for three receiving charges, one theft ex car, 14 previous obtaining by deception, five shoplifting convictions, nine for theft, one for theft of a motor vehicle, one for unlawfully taking a motor vehicle, one for possession of a needle or syringe, several for driving while disqualified and excess blood alcohol, driving under the influence, giving false details, failure to answer bail, breach of community work, unlawful possession of a firearm plus a couple of other traffic offences.
6 Police v Chapman, above n 1.
The sentencing decision
[5] For Mr Chapman, Mr Steedman makes the single submission that the Judge failed to adjust the sentence he arrived at for totality correctly. On that basis, my discussion of the Judge’s sentencing decision can be relatively brief.
[6] The Judge arrived at that overall sentence on the basis of discrete cumulative sentences for the May/June obtaining by deception offending, the June/July conversion offending, and the separate receiving, obtaining by deception, burglary and breach charges. For the deception, conversion and breach charges, the Judge sentenced Mr Chapman concurrently with respect to the various individual charges involved:
(a) Obtaining by deception: Starting point, two years and six months; uplift for previous offending, 12 months; discount for remorse, three months; discount for guilty pleas, 25 per cent; end sentence, two years four months and two weeks.
(b)Conversion: Starting point, two years; uplift for previous convictions, three months; discount for remorse and personal circumstances, three months; guilty plea discount, 25 per cent; end sentence one year and six months.
(c) Receiving: Starting point, three months; uplift for previous offending, two months; deduction for remorse “a third of a month”; guilty plea discount, 25 per cent; end sentence, three and a half months.
(d)Obtaining by deception: Starting point, two months; uplift for previous convictions, two weeks; deduction for remorse, one week; guilty plea discount, two weeks; end sentence, one month and three weeks.
(e) Burglary: Starting point, five months; discount for remorse, two weeks; guilty plea discount, 25 per cent; end sentence, three months and one week.
(f) Breach: (no discrete starting point identified) one month two weeks.
[7] In other words, and taken overall: starting point, five years, five months and two weeks;7 uplift for previous offending, one year, five months and two weeks (i.e. six years and 11 months before personal mitigating factors); discount for remorse, seven months, on the basis that the sum of a third of a month, one week and two weeks is approximately a month (i.e. six years and four months at this point); guilty plea discount, 25 per cent or one year and seven months; end sentence, (by my calculation) four years and nine months.
[8] The Judge then considered the resulting end sentence being, by his calculation, four years, eight months and two weeks, in terms of totality. With reference to the Court of Appeal’s decision in Blackmore v R,8 and noting in particular that the maximum sentence for burglary is 10 years, and that Mr Chapman’s burglary involved a home invasion, the Judge reached the view that that sentence was not wholly out of proportion to the gravity of the offending. Accordingly the Judge saw no need to adjust for totality.
[9] Mr Steedman was hesitant to challenge any of the individual components of the sentencing exercise, other than the overall uplift for previous offending. His submission was that, when seen against the end sentence, the total uplift of sixteen and a half months was significant. Notwithstanding the fact that the Judge had acknowledged he was concerned not to double count, Mr Steedman submitted that there had been in fact double counting. His submission was that the end sentence should be four years or thereabouts.
[10] For the Crown, Ms Fitzherbert’s submission was that the Judge had carried
out a careful and detailed sentencing exercise and that the end point reached was not manifestly excessive.
7 Sentencing is not a precise, arithmetic exercise. In my view judges should wherever possible – which will be almost all the time – avoid determining a sentence by reference to a period of less than a month. Unnecessary complexity otherwise results, as can be seen from this appeal.
8 Blackmore v R [2014] NZCA 109.
Analysis
[11] As Mr Steedman correctly acknowledged, the starting point and end sentences that the Judge identified for what he described as each of the “groups” of offending cannot be said – when individually assessed – to be manifestly excessive. It might be said that the starting point sentence of two years for the conversion offending is high. By the same token, the Judge adopted a reasonably lenient sentence for the one charge of burglary. The question is whether, when assessed for totality, and by reference to the uplift for previous offending or any other factor, the end sentence arrived at was manifestly excessive.
[12] The Judge’s cumulative starting point sentence, including uplifts for previous offending was – although the Judge never explicitly identified this – six years and nine months. Acknowledging that that was a notional starting point, before allowance for guilty pleas and other mitigating factors, it is very high – to say the least. In my view, that is particularly the case given the nature of Mr Chapman’s offending and that the total loss caused was approximately $50,000.
[13] The following discussion from in R v Varjan is informative:9
[19] In Clark,10 a self employed businessman who had pleaded guilty to
22 charges mainly of obtaining money by false pretences had his sentence of imprisonment for four years reduced to three years on appeal. He had induced investors, with promises of high returns to invest money for bogus business transactions. The total losses were $386,000. The Court said four to five years was the appropriate starting point. O’Brien and McMahon were convicted after a lengthy trial on 12 and 31 charges respectively arising out of fraudulent business transactions.11 Sentences of four years were upheld on appeal. Net losses were at least $1 million.
[14] Equally informative are the sentences imposed in Esau, Tallentire and Singh.12 Charges of theft from an employer, theft by a person in a special relationship and fraud were involved. In each case, the amount involved was in excess of $1,000.000. In Tallentire, a finance company case, it was $12 million. It
was theft on a grand scale, as the Court of Appeal observed. A starting point
9 R v Varjan CA97/03, 20 June 2003.
10 R v Clark CA364/99, 23 November 1999.
11 R v O’Brien and McMahon CA39 and CA40/97.
12 Esau v R [2014] NZHC 997; Tallentire v R [2013] 1 NZLR 548 (CA); Singh v Serious Fraud
Office HC Auckland CRI-2008-404-361, 4 March 2009.
sentence after trial of six years’ imprisonment was upheld, determined by applying the Varjan factors. In Esau and Singh, appeals against sentences imposed following guilty pleas, starting point sentences of six and a half and six years were upheld before guilty plea discounts were applied.
[15] Those comparators, by themselves, establish that the Judge’s six years and nine months’ – pre-guilty plea – starting point was manifestly excessive by a considerable margin.
[16] I do not think that error is corrected here by the guilty plea and other discounts: if a starting point sentence, before correct reductions for guilty plea and other mitigating factors, is manifestly excessive then so will be the end sentence imposed. That position will be different where a too high starting point is off-set by an overly generous personal circumstance or guilty plea discount. Any generosity in the Judge’s approach cannot have that effect here.
[17] The Judge’s approach to sentencing this offending was more than a little unusual. As the summary of facts set out at [3] shows, the core offending (obtaining by deception, conversion and receiving) is of a similar kind: that is, it involves conscious action to obtain money or property to which a person is not entitled. Moreover, that offending occurred over an approximately three month period (May through August) in 2014. The various types of offending can be seen as involving a series of mini “sprees”. Therefore an alternative, and in my view preferable, approach to sentencing would have been to impose concurrent sentences for all that offending. A cumulative sentence for the burglary charge, and perhaps the breach offending, would then have been appropriate. My concern is that, in taking the approach he did and not adjusting for totality, the Judge has arrived at a starting point that was, as Mr Steedman submitted, too high.
[18] It would have been advisable moreover, if the Judge had – in his totality exercise – considered the relationship between Mr Chapman’s culpability overall, and that notional starting point sentence, by reference to other decisions. The Judge
did, at this point, refer again to the Court of Appeal’s decision in Blackmore.13 He
13 Blackmore v R, above n 8.
compared the number of victims (16 in Blackmore and here 24) and the amount involved (in Blackmore just under $16,500, here slightly in excess of $50,000). He referred to the fact of the burglary charge, and that it involved a home invasion. On that basis he concluded that the end sentence in Blackmore of three years and nine months, supported his end sentence of four years eight months and two weeks. I do not agree. As I read Blackmore, on appeal a starting point of three and a half years was identified, very much in the context of an overall assessment that the appropriate sentence, before discount for guilty plea, was five years, as opposed to the seven and
a half year starting point identified by the Judge. The Court also observed:14
A comparison might be made with other kinds of offending that fall within the same charges. In cases where significantly larger sums are taken over a period of time by a person in a position of trust starting points of around three and a half years’ imprisonment are common.
[19] I do not think Blackmore supplies the support for the Judge’s sentence that he thought it did. Nor am I sure what the Judge meant by referring to the burglary charge as involving a home invasion. The phrase “home invasion” is generally used in the context of violent offending that is aggravated by reason of the fact that it occurs in a person’s house where the offender is unlawfully present, often having forced entry. The fact that Mr Chapman burgled a person’s home aggravates his offending. But it is not a home invasion as that phrase is generally used.
[20] I agree with Mr Steedman that the cumulative uplift of 17 and a half months was excessive. In Blackmore the Court of Appeal indicated that an uplift of 12 months could be appropriate for recidivist dishonesty offending. Mr Blackmore had over 300 convictions for dishonesty, including 84 since 2001. All of the offending involved in the sentence on appeal had occurred whilst Mr Blackmore was on parole. Mr Chapman’s 34 convictions since 2004 for dishonesty, whilst warranting an uplift, are not as serious as those of Mr Blackmore, or of others referred to by the Court of Appeal when indicating that 12 month uplift. Moreover, the concept of a recidivist offender is one I am hesitant to apply to Mr Chapman, given the gap in his offending between 2009 and 2013. At least, as applied to Mr Chapman, the implication of that term needs to be properly understood. A 12 month uplift is itself high. Seventeen
and a half months is manifestly excessive, again by a considerable margin.
14 Blackmore v R, above n 8, at [11].
[21] But the question is, at the end of the day, what overall sentence should have been imposed?
[22] As I have indicated, I think the cumulative approach to what the Judge described as groups of offending, in the case of the obtaining by deception, conversion and receiving offending, was the source of the problem as to totality. I think that may have been avoided if the approach I have identified as safer and preferable had been taken. Taking that approach helps identify the extent to which the Judge’s starting point and end sentences were, in my view, manifestly excessive.
[23] Each case has to be decided on its facts. Mr Chapman’s offending was relatively unsophisticated and, whilst the amount involved was not insignificant, Mr Chapman’s offending did not target private individuals. He did, however, offend on some 14 separate occasions over a period of some three months. I think a starting point sentence for the dishonesty offending in the vicinity of two and a half years was called for. In reaching that conclusion I have received guidance from two
decisions in particular, Lee v Police and Ip v Police.15 In Lee, the defendant obtained
$71,000 by using false documentation, which itself involved passport offending. Andrews J set a starting point of two years and six months’ imprisonment. In Ip, an employee fraudulently made claims on her employer’s reward schemes and sold items on Trade Me. The amount involved was $62,000. The High Court affirmed a starting point of two and a half years’ imprisonment.
[24] Given Mr Chapman’s record of previous offending, I think some uplift to recognise that aggravating personal factor is required. As I have noted, uplifts of 12 months can be appropriate for significant recidivist dishonesty offending. I do not think Mr Chapman’s previous offending calls for an uplift of that magnitude. In Ropiha v Police the appellant’s previous history was described as “very prolific
indeed”.16 It comprised 76 dishonesty convictions and included a previous sentence
of 18 months' imprisonment. There Keane J concluded that a six month uplift was the most that could be justified. Nor do I think Mr Chapman’s previous offending is
as serious as that. An uplift of three months would have been appropriate.
15 Ip v Police HC Auckland CRI-2008-404-000330, 10 February 2009; Lee v Police HC Auckland
CRI-2009-404-000231, 23 October 2009.
16 Ropiha v Police HC Rotorua CRI-2004-463-74, 22 July 2004 at [28].
[25] Finally, a cumulative sentence of six months for the burglary would have been appropriate. I do not think a separate cumulative sentence or uplift for the breach offending was, in these circumstances, necessary. The relevant previous offending can be seen here as being recognised by the three month uplift. That gives, before discounts for personal factors and guilty plea, an overall starting point sentence of three years and three months.
[26] I am not persuaded that a discount for remorse above that recognised in Mr Chapman’s guilty plea discount is called for. I am also not persuaded that, in this context, it is either meaningful or appropriate to give very small discounts (two instances of one month) for the impact of self-reported depression and relationship difficulties. By my assessment, therefore, an end sentence of two years and five months’ imprisonment results.
[27] I therefore allow Mr Chapman’s appeal, quash his sentence and substitute an overall sentence of two years and five months’ imprisonment in its place, made up as follows:
(a) I take as the lead charges those for obtaining by deception goods or money to the value of more than $1000, an offence which carries a maximum penalty of seven years’ imprisonment. These are:
(i) CRN 2907; (ii) CRN 3013; (iii) CRN 2901; (iv) CRN 2903; (v) CRN 3014; (vi) CRN 2904;
(vii) CRN 2899; and
(viii) CRN 3398.
(b)On these charges, I impose concurrent terms of two years and one month imprisonment.
(c) On the obtaining by deception charges CRN 2905 and CRN 2908, I impose sentences of three months’ imprisonment, and CRN 2900, one month imprisonment.
(d)For the four conversion charges (CRN 2896, 2897, 2898, 2895) I impose a sentence of six months’ imprisonment, concurrent with the above.
(e) On the receiving charge (CRN 3184), I impose a sentence of three
months’ imprisonment, also concurrent with the above.
(f) The sentences for the breach charges are also concurrent. For each of those charges, I impose a sentence of one month imprisonment.
(g) The sentence for the burglary charge is cumulative. For that charge, I
impose a sentence of four months’ imprisonment.
“Clifford J”
Solicitors:
Fergus Steedman, Palmerston North for appellant. Crown Solicitor, Palmerston North for respondent.
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