Cramer-Roberts v Police
[2025] NZHC 1478
•6 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2024-404-000715
CRI 2024-404-000716
[2025] NZHC 1478
BETWEEN HARVEY WILLIAM CRAMER-ROBERTS
Appellant
AND NEW ZEALAND POLICE
First Respondent
DEPARTMENT OF CORRECTIONS
Second Respondent
Hearing: 19 May 2025
Appearances: P H H Tomlinson for the Appellant
A L Stuart for the Respondents
Judgment: 6 June 2025
JUDGMENT OF TAHANA J
[Appeal against sentence]
This judgment was delivered by me on 6 June 2025 at 11.00 am
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Peter H H Tomlinson, Barrister, Auckland Crown Solicitor, Meredith Connell, Auckland
CRAMER-ROBERTS v NEW ZEALAND POLICE [Appeal against sentence] [2025] NZHC 1478 [6 June 2025]
Introduction
[1] Mr Cramer-Roberts appeals his sentence of four years and one month imprisonment (49 months’ imprisonment).1 The sentence related to five sets of offending and a substituted sentence, as follows:
(a)Theft of his employer’s property2 and taking, obtaining, or using a document (the employer’s order book) for a pecuniary advantage in September 2013.3
(b)Cultivating five cannabis plants in October 2015.4
(c)Failing to report for community work,5 and breaching a supervision sentence6 in 2015. The underlying community sentence related to four unrelated charges of dishonesty offending and was substituted by the sentencing Judge for cumulative and concurrent sentences of three months’ imprisonment.
(d)Making a false representation for the purpose of procuring a passport,7 and using a false passport from February 2016 to January 2023.8
(e)Driving with excessive breath alcohol on 9 July 2023 when Mr Cramer- Roberts drove his car to the police station while intoxicated for the purpose of reporting as required by his bail conditions.9
[2] Mr Cramer-Roberts asserts that the sentencing Judge set the starting point for the lead passport offending too high, applied excessive uplifts for the other offending, did not make a sufficient adjustment for totality and erred in imposing a cumulative
1 Police v Cramer-Roberts [2024] NZDC 27099.
2 Crimes Act 1961, ss 219 and 223(b). Maximum penalty: 7 years’ imprisonment.
3 Crimes Act 1961, s 228(1)(b). Maximum penalty: 7 years’ imprisonment.
4 Misuse of Drugs Act 1975, s 9(1). Maximum penalty: 7 years’ imprisonment.
5 Sentencing Act 2002, s 71(1)(a). Maximum penalty: 3 months’ imprisonment or $1000 fine.
6 Sentencing Act 2002, s 70(a). Maximum penalty: 3 months’ imprisonment or $1000 fine.
7 Passports Act 1992, s 32(1)(a). Maximum penalty: 5 years’ imprisonment or $15,000 fine or both.
8 Passports Act 1992, s 29A. Maximum penalty: 10 years’ imprisonment or $250,000 fine or both.
9 Land Transport Act 1998, s 56(1). Maximum penalty: 3 months’ imprisonment or $4,500 fine or both, and 6 months’ disqualification from driving.
substituted sentence of three months’ imprisonment. He argues that an appropriate end sentence would be from two years and six months’ imprisonment to three years’ imprisonment (30 to 36 months’ imprisonment).
[3] The Crown acknowledges that the Judge made a five-month calculation error but says that this was in Mr Cramer-Roberts’ favour, the discount for his guilty plea was generous and the end sentence is therefore not manifestly excessive having regard to the overall offending.
Background
Dishonesty offending
[4] Mr Cramer-Roberts was employed as a roofer in Christchurch from 16 May 2013 to early September 2013. He was issued with a company car, fuel card, a mobile, tools and an order book.
[5] On 9 September 2013, he did not turn up to work and his employer subsequently made several attempts to get the missing property back. On 27 September 2013, Mr Cramer-Roberts left the company car in the company carpark. However, the tools valued at $4,330.40 were missing and never returned.
[6] It was later discovered that between 2 September and 30 September 2013 Mr Cramer-Roberts used the company order book to make nine unauthorised purchases with a total value of $20,653.42.
Cannabis offending
[7] On 14 October 2015, the police discovered five small cannabis plants at Mr Cramer-Roberts’ address. Police also located and seized equipment used to heat and provide light to the plants.
Breach of community sentence and supervision
[8] On 17 June 2015, Mr Cramer-Roberts was sentenced to 280 hours’ community service and six months’ intensive supervision for four charges of unrelated dishonesty
offending. He only completed 44 hours of the community work and failed to report to his probation officer. This led to the charges for breach of community work and breach of a condition of supervision.
Passport offending
[9] On 1 February 2016, Mr Cramer-Roberts applied for a New Zealand passport in the name of his brother using a picture of himself. The application was approved, and the passport was issued on 5 February 2016. Mr Cramer-Roberts used that passport on 24 occasions between 16 November 2016 and 31 January 2023 to travel between New Zealand and Australia.
Drink driving
[10] On 9 July 2023, Mr Cramer-Roberts was granted bail on condition that he report to police weekly. On 31 July 2024, when he reported to police they noticed signs of intoxication. An evidential breath analysis showed that he had 931 mcg of alcohol per litre of breath.
The sentencing
[11] The sentencing Judge considered the passport offending constituted the lead offending and adopted a starting point of three years and two months’ imprisonment (38 months’ imprisonment), emphasising that the representative charge covered 24 offences over more than six years.10
[12] The Judge then arrived at an overall starting point of 62 months’ imprisonment after applying the following uplifts for the other offending:
(a)18 months’ imprisonment for the dishonesty offending;
(b)two months’ imprisonment for the cannabis offence;
(c)one month imprisonment for the drink driving offence; and
10 Police v Cramer-Roberts [2024] NZDC 27099 at [16].
(d)three months’ imprisonment for the breaches of community work and supervision.
[13] The Judge did not consider that any further adjustment was required for totality.11 He noted that he had assessed the totality of the offending in relation to the passport and dishonesty offending so no further adjustment was required. The Judge considered that all of the other offending was of a different kind and, as directed by s 84 of the Sentencing Act 2002, the sentences should properly be cumulative. He therefore adopted 62 months’ imprisonment as the adjusted starting point.
[14]Turning to personal aggravating factors, the Judge applied:
(a)a five per cent uplift for offending while on bail; and
(b)a five per cent uplift for Mr Cramer-Roberts’ history of dishonesty offending.12
[15]Turning to personal mitigating factors, the Judge reduced the sentence by:
(a)20 per cent for Mr Cramer-Roberts’ guilty pleas; and
(b)eight per cent for remorse and rehabilitation.13
[16] The Judge said this led to an end sentence of just under 45 months’ imprisonment to be rounded down to 44 months’ imprisonment.14 He then imposed concurrent sentences including a sentence of 46 months’ imprisonment for the representative passport charge. The Judge also imposed a disqualification from driving and an alcohol interlock order.15
[17] On the application for review of sentence, the Judge cancelled the sentence of community work and resentenced Mr Cramer-Roberts to three months’ imprisonment
11 At [21].
12 At [23].
13 At [26].
14 At [27].
15 At [35].
on each charge. He stated that “[i]n relation to CRN ending 0799 that will be cumulative. In relation to each of the other charges it will be concurrent.”16
[18] The effective end sentence was therefore 49 months’ imprisonment or four years and one month imprisonment.
Was the adjusted starting point manifestly excessive?
[19] Mr Tomlinson for Mr Cramer-Roberts argues that the starting point for the passport offending and the uplifts for the other offending were manifestly excessive and that the Judge failed to stand back and make an adjustment for totality.
Starting point for passport offending
[20] Mr Tomlinson provided an extensive overview of cases involving passport offending.17 He argued that Mr Cramer-Roberts’ offending was less serious than in Farley v R and Ministry of Business, Innovation and Employment v Bennett where starting points of three years’ imprisonment were adopted as well as Chilcott v Police where a starting point of four years’ imprisonment was adopted.
[21] Mr Farley applied for a passport under a false name while serving a sentence of home detention. He removed his home detention bracelet and absconded, travelling to Australia and then to Canada. After being sentenced in Canada for further offending, he was extradited to New Zealand. The sentencing Judge adopted a starting point of three years’ imprisonment for his passport related offending. That was not altered on appeal. Mr Farley’s passport offending was significantly less extensive than Mr Cramer-Roberts but his reason for the offending (absconding from home detention) was more serious.
[22] Mr Bennett travelled using two passports which contained his brother’s identifying details to make five trips overseas over a period of 17 years. He also used
16 At [37].
17 Burns v Police HC Wellington CRI-2005-485-125, 25 October 2005; Farley v R [2017] NZCA 97; Meyer v Police [2018] NZHC 3434; Ministry of Business, Innovation and Employment v Bennett [2023] NZDC 18194; Brown v Police [2017] NZHC 2079; and Chilcott v Police HC Dunedin CRI-3011-412-32, 1 December 2011.
one of those passports to obtain a driver’s licence and to open a bank account. Mr Bennett used the false passports to conceal his criminal history which would have restricted his travel if known. The District Court adopted a starting point of three years’ imprisonment.
[23] While Mr Bennett’s offending spanned a longer period of time, he only used the false passport a total of 10 times (compared to Mr Cramer-Roberts who travelled 24 times on the false passport). Mr Cramer-Roberts was also subject to sentences of supervision and community work at the time which add to the seriousness of his offending.
[24] In Chilcott, this Court on appeal was not satisfied that the sentence was manifestly excessive. The sentencing Judge had adopted a starting point of four years’ imprisonment. Mr Chilcott used a false passport on at least 40 occasions to exit and enter New Zealand over 11 years. He also applied to renew the false passport. Mr Chilcott applied for a passport because he had been an overstayer in the United States of America and was no longer permitted to enter the United States on his passport. He used the false passport for the purpose of business trips.
[25] Here, Mr Cramer-Roberts used a false passport over six years on 24 occasions. I do not consider that the reasons for Mr Chilcott’s use of a false passport (to undertake business) are more aggravating than Mr Cramer-Roberts’ offending where he was subject to sentences of supervision and community work at the time and failed to report.
[26] Having regard to the decisions in Farley and Bennett, and the more serious offending in Chilcott (where an adjusted starting point of four years’ imprisonment was adopted for all of the offending), I do not consider that the starting point of three years and two months’ imprisonment was manifestly excessive. It was within the available range.
Uplift for dishonesty offending
[27] While Mr Tomlinson accepted that 18 months’ imprisonment for the dishonesty offending would be an appropriate starting point if the offending was
standalone, he submitted that it was manifestly excessive as an uplift and should have been no more than six to eight months’ imprisonment.
[28] The Crown argued that an uplift of 18 months’ imprisonment is within range having regard to cases where higher starting points have been adopted for dishonesty offending involving a similar value. The Crown submitted that the starting points adopted in Ngawhika v R,18 and Tiopira v Police,19 support the uplift of 18 months’ imprisonment for the dishonesty offending.
[29] Mr Ngawhika stole $17,713 from a former employer and $4,784.1 from his employer at the time, totalling $22,497.1.20 The offending involved four instances of premeditated theft, breach of an employer’s trust and money that had not been recovered. In dismissing Mr Ngawhika’s appeal, the Court of Appeal held the sentencing Judge was entitled to adopt a starting point of two years and nine months’ imprisonment.
[30] In Tiopira, this Court held that “as a general proposition, a starting point of around 12 to 18 months imprisonment will be appropriate where the offending results in losses of around $2,000 to $3,000.”21 Mr Tiopira used four stolen credit cards and eftpos cards on 33 occasions. The money stolen amounted to $11,606.21. This Court concluded that the starting point of 30 months’ imprisonment was at the “top of the available range” and dismissed Mr Tiopira’s appeal.22
[31] Here, I consider that the sentencing Judge’s reasoning when adopting a starting point for the dishonesty related offending indicates that he considered 18 months’ imprisonment was an appropriate starting point having regard to the totality of that set of offending (being the charge of theft and the charge of taking, obtaining or using a document for a pecuniary advantage). The Judge expressly refers to a “starting point of 18 months’ imprisonment” and not an uplift and refers to totality in the context of the dishonesty charges.
18 Ngawhika v R [2017] NZCA 535.
19 Tiopira v Police [2012] NZHC 1720.
20 Above n 18, at [3] and [27].
21 Above n 19, at [12].
22 Above n 19, at [14].
[32] It is therefore helpful, as urged by Mr Tomlinson to compare the present case to those where dishonesty offending has been considered in the context of an uplift and not as a standalone offence.
[33] In Nandon, this Court accepted that an uplift of six months’ imprisonment for dishonesty offending that involved theft of a vehicle valued at $15,000 and driving related charges was appropriate.23 In contrast, Mr Cramer-Roberts’ dishonesty offending involves almost $25,000 and a representative charge of using a document for pecuniary advantage. Mr Cramer-Roberts used his employer’s order book on nine different occasions, so his dishonesty offending is more serious than the dishonesty offending in Nandon. However, the uplift applied here was three times that in Nandon, which I consider is manifestly excessive.
[34]I consider that an uplift of 12 months’ imprisonment is appropriate.
Uplift for cannabis offending
[35] Mr Cramer-Roberts challenges the Judge’s uplift of two months’ imprisonment for cultivating cannabis and argues that it is open to this Court to impose a conviction and discharge or a fine.
[36] Mr Tomlinson relies on R v Terewi,24 the guideline decision for cannabis related offending. In Terewi, the Court considered that ‘Category 1’ offending (the lowest level) consisted of the growing of a small number of cannabis plants for personal use without any sale to another party. Offending in this category “is almost invariably dealt with by a fine or other non-custodial sentence.” Where there were supplies to others on a non-commercial basis the monetary penalty would be greater and for persistent offending a term of periodic detention or a short prison term might be merited.25
[37] Here, the offending involved growing five cannabis plants. There was no evidence of supply to others. The Judge accepted that the offending was towards the
23 Nandan v Police [2024] NZHC 505 at [37].
24 R v Terewi [1999] 3 NZLR 62 (CA).
25 At [4].
lower end of the scale. Having regard to Terewi, an uplift of two months’ imprisonment is manifestly excessive.
[38] I do not however, consider that a conviction and discharge or a fine is appropriate having regard to the overall offending and the fact that the sentence was concurrent.
[39]I consider that a modest uplift of one month imprisonment is appropriate.
Uplift for drink driving offending
[40] Mr Tomlinson argued that the uplift of one month imprisonment for the drink driving offending was manifestly excessive given the maximum penalty is three months’ imprisonment and this was Mr Cramer-Robert’s first drink driving offence. Mr Cramer-Roberts reported to police as required by his bail conditions and was then tested. His breath alcohol level was 931 mcg/l. Mr Tomlinson argued that the alcohol interlock was a significant penalty.
[41]I do not consider that the one-month uplift was manifestly excessive.
Uplift for breaches of community work and supervision
[42] The Judge applied an uplift of three months’ imprisonment for the charge of breach of conditions of supervision and the charge of breach of community work. The offending related to Mr Cramer-Roberts’ failure to complete his sentence of community work and report to his probation officer in 2015. The maximum penalty for each of those charges is either a fine not exceeding $1,000 or three months’ imprisonment.
[43] Further, the Judge substituted the sentence of community work with a cumulative sentence of three months’ imprisonment. From an initial sentence of community work and supervision, Mr Cramer-Roberts was then subject to an uplift of three months’ imprisonment for the breaches as well as a further cumulative sentence of three months’ imprisonment.
[44] I agree with Mr Tomlinson that an uplift of three months’ imprisonment was manifestly excessive. It was in effect, the same as the substituted sentence for the underlying dishonesty offending. I consider an uplift of one month imprisonment for the breach of community work is appropriate.
[45] A starting point of 38 months’ imprisonment for the passport related offending was not manifestly excessive. Applying an uplift of 12 months’ imprisonment for the dishonesty offending, one month imprisonment for the cannabis offending, one month imprisonment for the drink driving and one month imprisonment for the breach of community work and supervision, results in a global starting point of 53 months’ imprisonment (four years and five months’ imprisonment).
Is a further adjustment for totality required?
[46] The decision in Polaapau v R requires that once an adjusted starting point is arrived at, the Court must step back and consider totality of the overall offending.26
[47] Mr Tomlinson relied on the Court of Appeal’s decision in Polaapau and argued that the Judge failed to stand back and consider totality after arriving at the global starting point. In Polaapau, the Court observed that while the sentencing Judge had referred to totality at stages in her sentencing, she did not do so after she had arrived at the final adjusted starting point. The Court considered that it was important to consider totality at that stage.27
[48] Here, the sentencing Judge referred to the “totality of conduct” when adopting a starting point for the dishonesty offending and when adopting an uplift for the breaches of community work and supervision.28 The Judge then referred to the totality of the offending and considered that because he had considered the totality of the offending in relation to the passport and dishonesty offending, no further adjustment was required “within” those groups.29 He then noted that all of the other offending was of a different kind and so, as directed by s 84, the sentences should properly be
26 Polaapau v R [2020] NZCA 227 at [44].
27 At [42].
28 Above n 10, at [17] and [20].
29 At [21].
cumulative. He therefore adopted 62 months’ imprisonment as the adjusted starting point.
[49] Section 84 provides that cumulative sentences are generally appropriate if the offences are different in kind, whether or not they are a connected series of offences. Section 85 requires the Court to consider totality in relation to both cumulative and concurrent sentences. Under s 85(2), if cumulative sentences 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.
[50] It was therefore necessary for the Judge to consider whether an adjusted starting point of 62 months’ imprisonment (five years and two months’ imprisonment) was wholly out of proportion having regard to the gravity of the overall offending. Applying Polaapau, that assessment should have been made after the Judge arrived at the starting point of 62 months’ imprisonment.
[51] I have already set out above why I consider the uplifts applied by the Judge were manifestly excessive. I disagree with the Crown’s submission that the Judge’s methodology indicates consideration was given to whether the adjusted starting point was disproportionate having regard to the gravity of the overall offending. The Judge refers to cumulative sentences as a reason not to adjust the starting point for totality, which is contrary to s 85(2). The Judge also refers to totality of conduct in the context of each set of offending without considering the totality of the overall offending.
[52] Stepping back, I do consider that a further small adjustment is required to a global starting point of 53 months’ imprisonment having regard to the nature of the less serious offending of breach of community work and supervision, cultivation of cannabis and drink driving. I consider an adjusted starting point of 52 months’ imprisonment is appropriate having regard to the overall offending.
Were the uplifts for personal aggravating factors manifestly excessive?
[53] Mr Tomlinson argues that the uplifts for previous convictions (five per cent) and breach of bail conditions (five per cent) were manifestly excessive. He referred
to Thomas v R where the Court of Appeal noted that any uplift should not be disproportionate to the original sentences imposed.30
[54] Here, Mr Cramer-Roberts has previous convictions for dishonesty offending in New Zealand from 1979 to 1983 and from 2006 to 2015. He has not been sentenced to prison for any of those convictions. The Judge noted that he had a “very extensive history of dishonesty offending in Australia” but expressed caution about taking the extent of that history into account and adopted a five per cent uplift.
[55] The Judge also applied a five per cent uplift for breach of bail, the breach of community work and passport offending having been committed while he was on bail for cultivating cannabis and the drink driving having been committed while he was on bail for the passport offending.
[56] Mr Cramer-Roberts clearly has an extensive history of dishonesty offending. Deterrence is a relevant sentencing purpose. Nonetheless, I consider that the total uplift of 10 per cent was manifestly excessive given Mr Cramer-Robert’s limited history of breaching bail and the fact he has not previously been sentenced to prison in New Zealand.
[57] I consider that an overall uplift of five per cent for previous convictions and offending on bail is appropriate. A five per cent uplift on a starting point of 52 months’ imprisonment will result in an uplift of just over two and a half months’ imprisonment for both previous convictions and offending while on bail.
[58] Applying the 20 per cent discount for guilty pleas and eight per cent for remorse and rehabilitation, that results in an end sentence of three years and four months’ imprisonment (40 months’ imprisonment).
Was the imposition of a cumulative sentence for the substituted sentence manifestly excessive?
[59] Mr Tomlinson argued that there is confusion as to the effect of the Judge’s substituted sentence. I do not consider that the sentencing notes are confusing. The
30 Thomas v R [2020] NZCA 257 at [18].
Judge clearly imposed a cumulative sentence for one of the dishonesty offences as part of the substituted sentence.
[60] I accept that the Judge was entitled to impose a cumulative sentence because the offending was unrelated, but in doing so he was also required under s 85(2) of the Sentencing Act to consider whether the total period of imprisonment was wholly out of proportion to the gravity of the overall offending. I consider that the cumulative sentence should have been reduced by one month imprisonment to take account of totality.
[61] That would result in an effective end sentence of three years and six months’ imprisonment.
Result
[62]The appeal is allowed.
[63] The sentence of three years and 10 months for the representative charge of using a false passport is substituted with a sentence of three years and four months’ imprisonment.
[64] The substituted cumulative sentence of three months’ imprisonment is substituted with a cumulative sentence of two months’ imprisonment.
[65] The concurrent sentence of three months’ imprisonment for cultivating cannabis is substituted for a sentence of one month imprisonment.
[66]The other concurrent sentences otherwise stand.
[67] The effective end sentence is therefore three years and six months’ imprisonment.
Tahana J
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