Chilcott v Police HC Dunedin CRI 2011-412-32

[2011] NZHC 1944

IN THE HIGH COURT OF NEW ZEALAND REGISTRY

CRI 2011-412-32

DONALD BRUCE CHILCOTT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 November 2011

Appearances: S A Saunderson-Warner for the Appellant

R D Smith for the Crown

Judgment:      1 December 2011

JUDGMENT OF WHITE J

This judgment was delivered by me on 1 December 2011 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel:            J Westgate, Barrister, PO Box 538, Dunedin

Solicitors:           Aspinall Joel, Dunedin: :  [email protected]

Crown Solicitors, PO Box 803, Dunedin 9054:  [email protected]

CHILCOTT V NZ POLICE HC CRI 2011-412-32 1 December 2011

[1]      Mr  Chilcott   appeals   against   his   sentence  of   two   years  six   months’ imprisonment imposed in the District Court at Dunedin on 22 September 2011 on the following charges:

(a)      11 charges of using a false travel document under s 29A(1)(b)(i) of the Passports Act 1992 for which the maximum penalty is 10 years’ imprisonment and/or a $250,000 fine; and

(b)two charges of making a false representation for the purposes of procuring a passport under s 32(1)(a) of the Passports Act 1992 for which the maximum penalty is  five  years’ imprisonment and/or  a

$15,000 fine.

[2]      Mr  Chilcott  appeals  on  the  grounds  that  his  sentence  was  manifestly excessive in that the District Court Judge’s starting point of four years’ imprisonment was too high and that a sentence of home detention should have been imposed.

Background

[3]      On 1 June 2000 Mr Chilcott made a false application for a New Zealand passport using the identity of another person.  The application was successful and between 13 June 2000 and 16 October 2009 Mr Chilcott used that false passport to pass through New Zealand’s border control on some 36 occasions.

[4]      As the false passport was due to expire on 6 June 2010, Mr Chilcott made another application on 23 November 2009 to renew the passport.  He then used that false passport for travel on at least four further occasions between 2 February 2010 and 8 June 2011.

[5]      Mr  Chilcott’s  offending  came  to  light  when  he  was  fingerprinted  at  the

United States of America border.  His true identity was revealed.

[6]      Mr Chilcott said that he had only used the passport to travel to the United States of America and back to New Zealand, but it seemed that on two occasions he may have also used the passport to travel to Australia.

[7]      The 11 charges of using a false travel document related to the 11 years 2000 to 2004 inclusive and 2006 to 2011 (to 8 June) inclusive.

Previous convictions

[8]      Mr  Chilcott  had  some  previous  convictions  dating  from  the  1950’s  and

1970’s, but they were not relevant to his sentencing on this occasion.

Personal background

[9]      Mr Chilcott, who is aged 72, lived in Dunedin.

[10]     He was a New Zealand citizen who for 36 years had been doing business in the United States of America.  On one of his business trips in 2000 he overstayed and was therefore not permitted to re-enter the United States.   At that time he had business  interests,  employees,  and  commercial  and  residential  properties  in  the United States.   He obtained the passports in order to continue with his business interests in the United States.

[11]     The United States immigration services chose not to charge Mr Chilcott.

[12]     The Probation Officer who prepared his Pre-Sentence Report recorded that Mr Chilcott was aware of his wrong choices, accepted responsibility and acknowledged  that  there  would  need  to  be  some  accountability for  his  actions. Mr Chilcott was assessed to be at a low risk of further offending and, in particular, at a low risk to others.

[13]   There were no barriers identified in respect of electronically monitored sentences.   Home detention was suggested in the Report as offering the strictest community-based sanction.

[14]     As Mr Chilcott had recently lost three fingers on his right hand, he was assessed as not suitable for “centre-based” community work.

[15]     Community detention was recommended.

[16]     Attached  to  the  Pre-Sentence  Report  was  an  appendix  confirming  the

suitability of Mr Chilcott’s home address for the purposes of home detention.

District Court decision

[17]     In sentencing Mr Chilcott, District Court Judge O’Driscoll recognised that the case involved a difficult sentencing exercise because there were no comparable cases where someone had entered and exited a country on a false passport on some

40 occasions.  The Judge recognised that there was nothing to indicate any sinister purpose in terms of their being other types of illegal activity in which Mr Chilcott was going to be involved.

[18]     In considering the relevant aggravating and mitigating factors the District

Court Judge said:

[4]       The  aggravating  factors  are  the  period  of  time  over  which  the offending took place, that being some 11 years and the number of occasions you used the false passport.  It seems that on at least 40 occasions you used that passport to enter and exit border control in New Zealand.  Further, there is the extent of your offending plus the renewal of the passport which clearly indicates premeditation on your part to continue the offending.  It is likely you would have continued to use that passport if you had not been apprehended.

[5]       In terms of the mitigating factors, there is your plea of guilty.  You have been described as a first offender, but little weight can be attached to that when there has been offending over an 11 year period.

[6]       Mr Westgate has highlighted the purpose of the offending was for financial gain.   That is not a mitigating factors but it is a matter which explains your offending.   You were not allowed into America.   You were regarded as an overstayer and that is why you were prohibited from going to America.  Had you used your correct name and identity you would not have been able to enter America.

[7]       It is clear from the material before me that your offending was not associated with any other illegal activity such as terrorism, people smuggling or other matters.

[19]     The District Court Judge referred to the increase in the maximum penalty for the  offence  of  using  a  false  travel  document  from  two  years  to  10  years  after

11 September 2001.   The Judge considered  that  the fundamental  reason  for the legislation was the inherent right of every sovereign state to know exactly who was

within its borders and that by using a false passport Mr Chilcott clearly deceived others.

[20]     After referring to the Pre-Sentence Report and the purposes and principles of sentencing, the District Court Judge said:

[16]     I would have thought the primary purpose of sentencing is that of deterrence. Deterrence is important because other offenders in similar situations need to be aware that sentences will be imposed such that the contemplated offending will be deterred by those sentences.

[17]      This was not a one-off incident. It was premeditated from when the original  passport  was  obtained  and  it  was  premeditated  when  the  new passport was obtained some 10 years later. Every entry and exit in and out of New Zealand constituted an offence. Another purpose of sentencing is to allow other countries to know that New Zealand is not a soft option when it comes to passport fraud.

[18]     The cases I have been provided with all have starting points of sentences  of  imprisonment.  The  cases  given  to  me  by  the  Crown  also indicate that imprisonment is an appropriate starting point. Sentences of imprisonment have been imposed in those cases where there have been one- off incidents. Your offending was not a one-off incident. It was something which occurred on numerous occasions over a decade. That is a matter which must be taken into account in determining the appropriate starting point.

...

[20]     The starting point must reflect the seriousness of the offence, the gravity of the offending and your culpability. As I have said, your offending was  persistent  and  premeditated.  I think it is  appropriate to look at the purpose  for  which  you  were  travelling.  I  accept  your  travel  was  not associated with any other illegal activity. As I have said, if you had used a passport in your own name you would not ever have been able enter the United States. This is a difficult sentencing exercise because I have not been provided with any cases where there has been persistent and repeated offending over a decade.

[21]     I think it is appropriate to say the starting point which I have been given on other cases must be increased to reflect the seriousness, the gravity and the repeated nature of the offending.

...

[23]     When looking at the totality of the offending, the seriousness of the offending, the undermining of the passport regime in New Zealand and all those matters, I have taken the view the appropriate starting point is one of four years’ imprisonment. I have decided to deduct 18 months from that sentence to take into account your guilty plea, your age and the other mitigating factors that have been placed before me. This was a strong case against you with fingerprint evidence. If I take the four years’ imprisonment

and reduce that by 18 months to take into account the matters I have mentioned, that means an end sentence of two years and six months’ imprisonment.

[21]     The District Court Judge then imposed those sentences of imprisonment on the charges from 2003 onwards when the maximum sentence was 10 years’ imprisonment.  On the other charges from 2000 to 2002, he imposed a sentence of nine months’ imprisonment. All sentences of imprisonment were to be concurrent.

[22]     Although  the  District  Court  Judge  did  not  refer  separately  to  specific sentences  for  the  two  charges  of  false  representation  under  s  32(1)(a)  of  the Passports Act 1992, it is apparent from the informations on the Court file that he imposed concurrent sentences of nine months’ imprisonment for the 2000 offence and two and a half years’ imprisonment for the 2009 offence.   These sentences confirm that the District Court Judge sentenced Mr Chilcott for the totality of his offending, with these particular offences being taken into account as showing premeditation on the part of Mr Chilcott.

Submissions for Mr Chilcott

[23]     In support of the appeal, Ms Saunderson-Warner submitted for Mr Chilcott that the starting point adopted by the District Court Judge of four years was too high and ought to have been three years.

[24]     It was accepted that the persistency of the offending was an aggravating feature, but this should have been balanced against the other circumstances of the case:

(a)      The fact  that  the travel  was  not  associated with  any other illegal activity, rather it was associated with commercial trade.

(b)The purpose of Mr Chilcott’s visits was to continue with his business in the United States of America and this distinguishes his case from any of the cases cited in the District Court.  It also distinguishes him from  those  offenders  who  were  the  focus  of  the  change  in  the

maximum penalty for the offence after the September 11 terrorist attacks.

(c)       The   United   States   Immigration   Services   chose   not   to   charge

Mr Chilcott.

(d)There was no forgery involved in this case.  The person whose name Mr Chilcott used was a real person who gave permission for the use of his identity.

(e)      Four years was dramatically higher than any other case and gave too much weight to the prolonged period of the offending and overlooked the purpose which justified a lower starting point.

(f)       With a starting point of three years and the discounts of approximately

37%, an end sentence of a little under two years would be reached.

[25]     Ms Saunderson-Warner then submitted that, if an end sentence of two years or lower were accepted, a sentence of home detention should be considered  as appropriate in this case.   She referred to the decision in Manikpersadh v R[1]  that home detention was itself a deterrent sentence and should be considered as the least restrictive appropriate outcome.  Here a sentence of imprisonment was not required to hold Mr Chilcott accountable, promote a sense of responsibility or protect the community.

[1] Manikpersadh v R [2011] NZCA 452

[26]     Ms Saunderson-Warner pointed out that Mr Chilcott’s home address was still

suitable and available if home detention were considered.

Submissions for the Crown

[27]     For the Crown, Mr Smith submitted that this was an unusual case and not an easy one. At the same time, it had aggravating features, namely:

(a)       the duration of the offending;

(b)      the number of occasions on which the false passport was presented;

and

(c)       the application to renew the false passport which was made after the increase in the maximum penalty.

[28]     Mr Smith pointed out that  cases of one-off offending cited to the Court involved sentences of two years’ imprisonment so that four years was open to the District Court Judge.

[29]     Mr Smith accepted that many of the cases cited by the Crown in the District Court were distinguishable, but this case was worse because Mr Chilcott was a New Zealand citizen who was lawfully entitled to be here.  The District Court Judge did not err in adopting a starting point to reflect the seriousness, the gravity and the repeated  nature of the  offending.   The District  Court  Judge  was  correct  to  say (at [17]) that New Zealand should not be viewed as “a soft option”.

[30]     Mr Smith also referred to the decision of William Young J in Lillandt v R[2] at

[21] about the importance of a New Zealand passport.

[2] Lillandt v R HC Christchurch A69/01, 9 August 2001

[31]     Mr Smith submitted that it was quite proper for the District Court Judge to adopt a deterrent sentence so that members of the New Zealand community are aware that passport fraud will be viewed very seriously.  This was recognised by the legislation which increased the maximum penalty so dramatically.  Border control is a very serious issue irrespective of a person’s motivation.

[32]     Mr Smith also pointed out that the District Court Judge had given particularly generous credit for the mitigating features in this case.  The fact that Mr Chilcott had a good character and lacked relevant previous convictions paled into insignificance against the 11 years of his offending.  A 25% discount for his guilty pleas was also

generous because the case against him was overwhelming once his fingerprints had been identified at the United States border: cf Hessell v R.[3]

[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[33]     The end result of two and a half years’ imprisonment was therefore well within range and available to the District Court Judge.  This meant that the question of home detention did not arise.

[34]     At the same time Mr Smith accepted that, if the submissions for Mr Chilcott were  accepted  and  an  end  sentence  of  two  years  or  less  were  adopted,  then  a sentence of home detention would be open to the Court.

Discussion

[35]     It should be recognised at the outset that a passport is an important document that confers significant rights on the lawful holder and that it is therefore necessary that the integrity of passports should be maintained: cf Daljit Singh.[4]   A passport is a document issued by the Government of one country to individual citizens to enable them to enter and travel safely in other countries.  A British passport was described in the following terms by Lord Alverston CJ in R v Brailsford:[5]

[4] Daljit Singh [1999] 1 Cr. App. R (S) 490 (EWCA) at 492.

[5] R v Brailsford [1905] 2 KB 730 (EWHC) at 745.

It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries, and it depends for its validity  upon  the  fact  that  the  Foreign  Office  in  an  official  document vouches the respectability of the person named.

Passports have been known and recognised as official documents for more than three centuries, and in the event of war breaking out become documents which may be necessary for the protection of the bearer, if the subject of a neutral State, as against the officials of the belligerents, and in time of peace in some countries, as in Russia, they are required to be carried by all travellers.

[36]     The New Zealand Passports Act 1992 contains the following definition of

“passport” in s 2:

passport means a document that is issued by or on behalf of the Government of any country, and that purports to establish the identity and nationality of the holder ...

Under s 3 of the Act, except as otherwise provided, every New Zealand citizen is entitled as of right to a New Zealand passport.

[37]     When the importance and significance of a passport and the rights it confers on the holder are taken into account, and the consequential need to maintain the integrity of passports in the interests of international comity is recognised, it is not surprising that knowingly obtaining and using false passports should  be serious offences carrying with them significant maximum penalties. As William Young J put it in Lillandt v R:[6]

[21]      ... A New Zealand passport is prima facie evidence of New Zealand citizenship. ... Of course, if the situation is allowed to develop that New Zealand passports are commonly obtained by criminals, then this is likely to have an effect on the way in which bona fide New Zealand travellers are treated in overseas jurisdictions. Further, the reality is that it is difficult to see why anyone would want a false New Zealand passport unless it was intended to be used in a way ancillary to some other offending. Such offending is likely to be serious or very serious.

[6] Lillandt v R HC Christchurch A 69/01, 9 August 2001, at [21].

[38]     In New Zealand the maximum penalties for these offences were increased from two years’ imprisonment and three months’ imprisonment respectively to their present levels by the Passports Amendment Act 2002 which came into force on

18 June  2002.     The  background  to  this  legislation  is  helpfully  explained  by Priestley J in Markevich v R.[7]    For present purposes, it is sufficient to note what Priestley J said at [25] and [30]:

[7] Markevich v R (2004) 21 CRNZ 41 (HC) at [25] – [31].

[25]     The mischief of using false passports to cross international frontiers and the risks which such offending represents to the integrity of New Zealand’s frontier, were clearly expressed by the responsible Minister who introduced the Bill which led to the Passports Amendment Act 2002 into Parliament (Transnational Organised Crime Bill) on 28 February 2002.

Part 5 amends the Passports Act to create new offences that increase the penalties of existing offences.  These amendments also help to implement Security Council Resolution 1373 on terrorism.      The forgery or falsification of New Zealand passports can damage the international reputation of passports, as well as jeopardising New Zealand’s visa-free access to many countries. [NZPD Vol 598, 14756]

...

[30]     It  is  abundantly  clear,  however,  that  Parliament  by  the  2002 amending legislation increased five-fold the maximum penalty for s 31 offences.   It clearly did so against the background of the need to prevent the movement of terrorists or terrorist groups by the means set out in Resolution

2(g) of the UN Security Council Resolution 1373.  But, as is clear from the

Minister’s remarks (above paragraph [25]) it also resolved to increase

the penalty as a matter of general policy.

(emphasis added)

[39]     Turning to the question of the appropriate approach to be adopted when sentencing persons who commit these passport offences, Priestley J had this to say in the case before him which involved a Ukrainian citizen who had purchased a false Israeli passport and used it to enter New Zealand:

[20]      In the current world security climate courts have a clear obligation to impose deterrent sentences for the use of false passports to cross frontiers with fictitious identities.   So too is deterrence legitimate to underpin New Zealand’s immigration controls and discourage illegal entry by fraud and deception.

...

[41]     There can be no quarrel with the aggravating and mitigating factors weighed by the Judge and indeed counsel do not attack these.   Denunciation and deterrence are legitimate and potent factors with offending of this type. The significant increase in 2002 of the prescribed maximum penalty from

2 years to 10 years reflects underlying parliamentary policy to which the Courts must obviously give weight.   The sentence, including its start point, must fit appropriately on the 10 year continuum.  (Section 8(d) Sentencing Act 2002).

[42]      The  following  circumstances  of  the  appellant’s  offending  are

important factors to weigh :

•The foreign passport used was issued by a country the citizens of which do not normally require visas for short term visits to New Zealand.

•The  passport  was  deliberately  obtained  by  the  appellant  for  the specific purpose of entering New Zealand illegally.

•The appellant, in a premeditated fashion, possessed the passport for the above reason.

•         The appellant deliberately used the passport in an attempt to pass

through New Zealand’s border.

•The passport was part of an elaborately planned and constructed “package” which included another document designed to flesh out the deception that the appellant was an Israeli national.

•The  appellant  did  not  obtain  the  false  passport  motivated  by  a genuine desire to escape persecution.   Rather, on detection, he attempted for a period of approximately 3 months to play the refugee claim card.

•The appellant was the user or client of a commercial enterprise of considerable   sophistication   gaining   financial   benefit   out   of supplying false passports to people in his position.  (That factor is not an aggravating factor so far as the appellant is concerned but has some relevance to the s 7 deterrence purpose).

•         The appellant is not a known criminal, terrorist, or a security risk. [43]      Those circumstances (with the exception of the last), in my judgment

justify the imposition of a significant penalty.     The elaborateness of the deception, its premeditation, and the insidious threat which offending of this type presents to New Zealand’s border security and immigration controls, clearly merit the Judge’s stipulated start point of 2 years.   Indeed, the brazenness of the offending and in particular its premeditated nature might have justified a higher start point of between 2 and 3 years.   Had such a higher  start point been deployed  I would  have  expected  slightly greater weight to be given to some mitigating factors.

...

[47]      I do not consider it desirable to indicate a tariff for sentencing under s 31 of the Passports Act 1992.  I note that the same maximum sentence is stipulated for a number of offences which are qualitatively different (above para [15]).     I am also conscious that, on a case by case basis, the circumstances of the offending in the case under appeal (above para [42]) will never be exactly replicated.    Degrees of culpability will vary.   So too will the personal circumstances of the offender and his or her motivation. The sophistication of the false passport may vary.    The more sophisticated the falsification and the more elaborate the deception, the greater in my view the culpability and the need to deter.

[48]      In  general terms unremarkable offending under s  31(1)(f) of the Passports Act 2002 motivated by a desire to enter New Zealand illegally, could justifiably attract sentences with start points ranging from 15 months to 3 years.   The relevant criteria of the Sentencing Act 2002 will obviously vary on a case by case basis as will the weighing exercise.    Factors which might   justify   leniency   would   include   an   early   confession   of   guilt; immediate or early abandonment of refugee claims which are false or manifestly unfounded;  a willingness to provide cogent information leading to the detection of co-offenders and people smugglers;  and an acceptance of and co-operation with a speedy return to the offender’s country of origin. Those factors should not minimise the  need for deterrence but could in appropriate cases temper it.

[49]     Offenders who do not meet the above criteria; whose motivation is sinister or unexplained;   or who deliberately and cynically endeavour to

exploit   New   Zealand’s   comparatively   liberal   refugee   determination procedures could well merit more severe treatment.

[40]     While recognising the obvious factual differences between Markevich and the present case, I find the general approach of Priestley J to be of considerable assistance, especially his emphasis on the need for denunciation and deterrence in the context of offending of this nature and his identification of a range of potential aggravating and mitigating factors relevant to the task of sentencing offenders for such passport offences.

[41]     In Mr Chilcott’s case, all the offending was of a similar nature and part of a course of conduct.  The two charges of making false representations arose from his applications in 2000 and 2009 to obtain a New Zealand Passport using the identity of another person because he had been an overstayer in the United States of America who was no longer permitted to enter the United States on his own passport.  The

11 charges of using a false travel document arose from his use of his false passports when leaving and returning to New Zealand for the purpose of his business trips to the United States between 2000 and 2011.  The interrelationship between the charges and their repetition means that the District Court Judge was correct to consider the

totality of Mr Chilcott’s offending: R v Xie.[8]

[8] R v Xie [2007] 2 NZLR 240 (CA).

[42]     When the totality of Mr Chilcott’s offending is considered, the following factors  should  be taken  into  account  in his  case in  determining the appropriate starting point for his sentence:

(a)      The premeditation involved in obtaining and using the false passports for the purpose of gaining unlawful entry into the United States of America.  The fact that no forgery was involved did not detract from the deception in the applications for the passports.

(b)The scale and duration of the offending with the presentation of the false passport at the New Zealand border on some 40 occasions over an 11 year period.  This distinguishes Mr Chilcott’s case from other

cases involving one-off offences.

(c)      The deception involved  in gaining unlawful entry into the United States of America in reliance on a false New Zealand passport.  The fact that the United States Immigration Service decided not to charge Mr Chilcott does not detract from the serious nature of the offending or the undermining of the integrity of a New Zealand passport thereby damaging New Zealand’s international reputation.

(d)The business benefits obtained by Mr Chilcott from re-entering the United States unlawfully over the 11 year period. The fact that he was pursuing his private business interests there, rather than any separate criminal activity, involved a deliberate and successful endeavour to obtain personal gain at the expense of New Zealand’s passport regime.

[43]     On the basis of these aggravating factors, especially the scale and duration of the totality of the offending, a starting point of four years’ imprisonment for the

13 charges was not in my view “manifestly excessive”.  This conclusion is supported

by the following alternative analysis:

(a)      Taking the charge of using a false travel document for the 2003 year (that is the first year after the increase in the maximum penalty when the false passport was used on four occasions) as the lead offence and adopting a starting point of one year six months’ imprisonment for that offence;

(b)      Adding uplifts of:

(i)two years’ imprisonment for the subsequent seven charges of using a false travel document for the 2004 and 2006 to 2011 years (when the false passport was used on 24 occasions);

(ii)three months’ imprisonment for the three charges of using a false travel document for the 2000 to 2002 years (when the maximum penalty was two years’ imprisonment when the false passport was used on 12 occasions);

(iii)one month’s imprisonment for the 2000 false representation charge (when the maximum penalty was three months’ imprisonment); and

(iv)one  year’s  imprisonment  for  the  2009  false  representation charge  (a  second  offence  committed  after  the  maximum penalty had been increased to five years’ imprisonment);

would total four years and ten months’ imprisonment; and

(c)       Applying the totality principle to adopt an overall starting point of

four years’ imprisonment for all of the offending.

[44]     But even if that starting point were viewed as being beyond the appropriate range by a few months, it would then be necessary to examine closely the total discounts of 37% allowed by the District Court Judge for the mitigating factors relating to Mr Chilcott himself.  While there would be no question that Mr Chilcott would be entitled to discounts for his guilty plea, his age and the other factors relied on by his counsel, it must be said that discounts totalling 37% were particularly generous when:

(a)       the strength of the case against him is taken into account: cf Hessell v

R:[9]

[9] Hessell v R at [60] and [74].

(b)the duration of his offending counteracted his  good  character and absence of relevant previous convictions.

[45]     This means that even had I been persuaded that the starting point of four years’ imprisonment should have been reduced to say three years eight months’ imprisonment  I  would  also  have  considered  that  the  discounts  totalling  37% (18 months) should have been reduced to around 30% (14 months) leaving an end sentence  of  two  years  six  months’ imprisonment  which  was  the  end  sentence

imposed by the District Court Judge.

[46]     On this basis I am not satisfied that the end sentence imposed by the District Court Judge was manifestly excessive.   No question of home detention therefore arises.

The sentences for the false representation offences

[47]     The sentence of nine months’ imprisonment imposed by the District Court

Judge for the 2000 false representation offence under s 32(1)(a) of the Passports Act

1992 must, however, be quashed because by virtue of s 25(g) of the New Zealand Bill  of  Rights  Act  1990  Mr  Chilcott  was  entitled  to  the  benefit  of  the  lesser maximum penalty of three months’ imprisonment that applied at the time he committed the offence.   As I have already indicated (at [43](b)(iii)), a substituted sentence of one month’s imprisonment should be imposed as a concurrent sentence. For the reasons I have already given, this error by the District Court Judge does not affect the end sentence in this case.

[48]     The sentence of two years and six months’ imprisonment imposed by the District Court Judge for the 2009 false representation offence should also be quashed because the maximum penalty for that offence in 2009 was five years’ imprisonment. For the reasons I have already given (at [43](b)(iv)), a substituted sentence of one year’s imprisonment should be imposed as a concurrent sentence. Once again this error by the District Court Judge does not affect the end sentence.

Result

[49]     Subject to quashing and imposing the substituted concurrent sentences for the two false representation offences, the appeal is dismissed.

D J White J