Crawford v Police

[2015] NZHC 3262

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000362

CRI-2014-004-011946 [2015] NZHC 3262

BETWEEN

ALLAN CRAWFORD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 December 2015
Appearances:	D Dickinson for Appellant J Barry for Respondent
Judgment:	16 December 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 December 2015 at 4.15pm

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:……………………………….

Solicitors/counsel:

D Dickinson, Auckland

Meredith Connell, Auckland

CRAWFORD v NZ POLICE [2015] NZHC 3262 [16 December 2015]

Introduction

[1]      The appellant, Mr Crawford, appeals against a sentence of two years and eight months’ imprisonment on 14 charges all relating to dishonesty, and including three charges of burglary.

[2]      Details of the charges are as follows:

Charge	Date of Offence	Date Laid
Burglary (42 Wakefield Street)	19 August 2014	21 November 2014
Burglary (2 Wakefield Street)	24 August 2014	9 February 2015
Burglary (2 Wakefield Street)	26 September 2014	21 November 2014
Dishonestly used a document (Q Credit Card – Prasad)	19  and  26  October 2014 (representative)	21 November 2014
Dishonestly used a document (Onecard Visa – Prasad)	15-20  October 2014 (representative	9 February 2015
Receiving; over $1,000 (four HP laptop computers value: $6187)	3 November–20 November 2014	9 February 2015
Receiving; $500-$1000 (four cards in name of Davis and Samsung mobile)	27 October-28 October 2014	21 November 2015
Obtain by deception (Vodafone mobile number and iPhone – Prasad’s wife)	31 October-6 November 2014	9 February 2015
Obtain by deception (Warehouse Stationary account – Beepee Holdings)	2 November 2014	9 February 2015
Obtain by deception (Taxi charge voucher booklet – Beepee Holdings)	11 August – 20 November 2014	21 November 2014
Obtain by deception (GE Finance Q Card – Prasad)	11 August – 20 October 2014	21 November 2014
Obtain by deception (Spark Telephone Account – Prasad)	3 November 2014	21 November 2014
Obtain by deception (Bunnings Trade Card – Beepee Holdings)	3 October 2014	9 February 2015
Obtain by deception (Onecard Visa – Prasad)	4 October – 15 October 2014	9 February 2015

[3]      The sentence was  imposed by Judge AA Couch  in  the District  Court at

Auckland.1

1      Police v Crawford [2015] NZDC 20420.

[4]      Mr Crawford appeals his sentence on the basis that it is wrong in principle, or alternatively, that it is manifestly excessive.

Relevant facts

[5]      The various charges were committed between August and November 2014. The most serious are the three charges of burglary.

[6]      On  19  August,  at  about  9.28pm,  Mr  Crawford  entered  the  Auckland University of Technology (“AUT”) building in Wakefield Street, Auckland City.  He approached an office door that was locked and attempted to gain entry.   He was unable to do so and he then left the building.

[7]      At  about  11.08pm  on  the  same  day,  Mr  Crawford  returned  to  the AUT building.  He approached the door to an office.  Using a screwdriver or similar, he attempted to jemmy open the door.  Again, he was unsuccessful.  He then tried to force the door open by barging into it.   He was however unable to break into the office and he left the scene.  His actions were captured on CCTV.

[8]      On 24 August 2014 at about 6pm Mr Crawford went to the AUT building in Wakefield  Street, Auckland  City.    He  entered  the  building,  and  walked  around various floors.  He approached an office door on level 7.  The office was locked.  Mr Crawford jemmied open the door.  He stole a laptop computer valued at $1,380.  He

then went to another office on the 8th  floor.   He was unable to gain entry to that

office.  He then went to the 13th  floor and successfully jemmied open a door to an office on that floor.   From this office he took an Apple imac computer valued at

$1,729.

[9]      On 26 September 2014, Mr Crawford again entered the AUT building in Wakefield Street.   He went to a number of levels within the building.   He forced open an office door and removed some electronic items valued at approximately

$750.  He then left the building. Again, his actions were captured on CCTV.

[10]     Although Mr Crawford was not charged in relation to this matter, sometime between 2 August and 18 August 2014, an office belonging to a Mr Prasad in a

building in St Paul Street, Auckland City was broken into.  That building is also part of AUT.  Various computer hard drives which contained information personal to Mr Prasad, his wife and a company which they own, were taken.   Whilst it was not charged that Mr Crawford stole those items, they came into his possession and he used them to obtain details of various lines of credit without Mr Prasad’s knowledge. He then proceeded to use the materials which he was in receipt of.  There were two representative charges for using a Q credit card, the property of Mr Prasad, and a Onecard visa card, also the property of Mr Prasad in October 2014.  He also used a Vodafone mobile number and an iPhone, the property of Mr Prasad’s wife between

31 October and 6 November 2014, a Warehouse Stationary account belonging to Beepee Holdings Limited, the company owned by Mr and Mrs Prasad, and a charge voucher booklet belonging to the Prasads between August and November 2014.  He used a GE  Finance Q  card, the property of  Mr Prasad,  and  a Spark  telephone account, also the property of Mr Prasad and a Bunnings trade card, the property of Beepee Holdings.

[11]     When he was arrested, Mr Crawford was found to be in possession of four laptop computers, owned by AUT, with the value of some $6,187.   He was also found to be in the possession of four cards in the name of a Ms Davis, and a Samsung mobile.

[12]   In summary, between August 2014 and November 2014 Mr Crawford committed a range of dishonesty offences.   The Judge described the offending as comprising an offending spree. That description is not inappropriate.

District Court Judge’s Decision

[13]     Judge   Couch   recited   Mr   Crawford’s   offending.      He   recorded   his understanding that in the course of one of the burglaries, Mr Crawford took Mr Prasad’s property.   He noted that the offending occurred against a history of 31 previous convictions for dishonesty including many for burglary, receiving and dishonestly using documents.  He observed that Mr Crawford’s last conviction for dishonesty related offending was in 2012, and that that was for both burglary and receiving.

[14]     The  Judge  considered  that  the  offending  was  interlinked.     The  three burglaries were at the same premises using the same method.  The receiving charges arose out of similar offending, and that the deception charges arose out of the use of material that had been stolen.  He approached the matter by looking at the totality of Mr Crawford’s offending.  He regarded the offending as being towards the upper end of the scale.   He noted that the burglaries were at night, that Mr Crawford forced entry into the premises and that the value of the goods and services stolen was between $15,000 and $20,000.   He considered that Mr Crawford had engaged in what he described as “an extensive and methodical exploitation of personal information taken”, and he noted that he had caused a great deal of financial and emotional harm to the victims.  He considered that what he called the “identity theft” was a particularly pernicious form of offending.

[15]     The Judge recorded that Mr Crawford had been involved in a restorative justice meeting with the principle victim – Mr Prasad – and he accepted that to an extent this showed that Mr Crawford accepted responsibility for his actions and acknowledged the harm he had caused.  He noted however that Mr Prasad did not find Mr Crawford’s apology convincing or acceptable.

[16]     The Judge considered that denunciation and deterrence were important.  He also recognised that one of the purposes of sentencing is to assist in an offender’s rehabilitation.  He acknowledged that Mr Crawford had serious rehabilitative needs, and he accepted that it was to Mr Crawford’s credit that he had taken steps to recognise those needs and to start to deal with them.

[17]     The   Judge   adopted   a   starting   point   of   two   years   and   10   months’ imprisonment.   He considered that the offending was premeditated and that there were repeated burglaries at the same premises with the same kind of property stolen by the same methods on each occasion.  He noted the harm to the victims and he took into account Mr Crawford’s previous offending history.  For those aggravating factors, he applied an uplift of six months.

[18]     Turning to mitigating factors, he noted that Mr Crawford entered guilty pleas. He did not however consider that they were all entered promptly.  He noted that the

initial  charges  were laid  in  November 2014,  but  that  the not  guilty pleas  were maintained until late March 2015 after further charges were laid.  The Judge then imposed  a  final  sentence  of  two  years  and  eight  months’ imprisonment.    This sentence was imposed on each of the charges of burglary.  On the additional charges, he sentenced Mr Crawford to one month imprisonment. All of the sentences were to be served concurrently – making for a finite sentence of two years and eight months.

Submissions

[19]     Mr Dickinson for Mr Crawford submitted that the starting point adopted by Judge Couch was too high.   He argued that the Judge proceeded on an incorrect factual basis – namely that Mr Crawford had committed the burglary against Mr Prasad.   Mr Dickinson submitted that the appropriate starting point on the correct factual basis was one of approximately 30 months’ imprisonment, before any uplift.

[20]     Secondly, Mr Dickinson argued that the uplift imposed – six months – was too high, and that the appropriate uplift was at most three months’ imprisonment.

[21]     Mr Dickinson then argued that a full discount of 25 per cent should have been given to Mr Crawford for his guilty pleas, submitting that he had pleaded guilty as the  first  reasonable  opportunity.    He  then  suggested  that  a  further  discount  of between 5 to 8 per cent should be given to Mr Crawford for what he called Mr Crawford’s “genuine remorse”, and that Mr Crawford should have been given an additional discount for his rehabilitative efforts of approximately 10 per cent.   He submitted that the appropriate end sentence should have been a short period of imprisonment or alternatively a sentence of home detention.   He argued the latter sentence was more appropriate, because it would promote Mr Crawford’s efforts to rehabilitate himself, and because it was desirable to keep Mr Crawford in the community.

[22]     Mr  Barry  acknowledged  that  Judge  Couch  did  not  expressly  allow  any discount  for  rehabilitation  and  remorse.    He  resisted  any  suggestion  that  Mr Crawford was entitled to a discount for being on restrictive bail for a period of two and a half months.  He argued that the starting point was not too high, that the uplift was appropriate given that Mr Crawford was as recidivist dishonest offender, and

that the overall discount was not inappropriate.  He argued the end sentence was not manifestly excessive in light of the totality of Mr Crawford’s offending, and put it to me that the appeal should be dismissed.

Approach on appeal

[23]     Mr Crawford has a general right of appeal against sentence under s 244(1) of the Criminal Procedure Act 2011.  Section 250 of that Act provides as follows:

250 First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[24]     In this case, this Court is the first appeal Court.

[25]     In Tutakangahau v R2  the Court of Appeal confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed provisions of the Crimes Act 1961 and the Summary Proceedings Act 1957.   The Court confirmed that on appeal, this Court must proceed on an “error principle”.3

While s 250 makes no express reference to the words “manifestly excessive” the Court recognised that this principle is “well ingrained” in the Court’s approach to sentence appeals.4   This Court should not intervene if the sentence imposed is within the range that can properly be justified by accepted sentencing principles.  Further, whether a sentence is manifestly excessive is to be examined in terms of the sentence

imposed, rather than the process by which the end sentence was reached.5

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

3      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

4      Tutakangahau v R, above n 2, at [33] and [35].

5      Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].

Analysis

[26]     Mr Dickinson submitted that Judge Couch’s starting point of two years and

10 months was too high.

[27]     I accept that Judge Couch proceeded on an incorrect factual basis, when he assumed that Mr Crawford was responsible for the burglary of Mr Prasad’s office. Mr Crawford was not charged with the burglary in which Mr Prasad’s computer hard drives and other goods were taken.   However,  I do not consider that this error materially affected the starting point adopted by the Judge, and in my view that starting point was within the available range.

[28]     There is no tariff for the burglary, because the range of circumstances in which a burglary can be committed is infinitely varied.6

[29]     In assessing the criminality of any particular burglary, relevant considerations include the degree of planning and sophistication, the nature of the premises entered, the kind and value of the property stolen, the damage done, the potential impact upon occupants or owners of the property, and the extent of the offending where multiple burglaries are involved.7   Comparable cases where the courts have focussed on the circumstances of the offending can provide guidance in setting the appropriate starting point.8

[30]     In this case, the three burglaries were committed in the early evening and at night. The targeted premises were offices, as opposed to domestic residences.  There were  forced  entries.    Because the premises  were commercial  premises,  and  the burglaries occurred either in the evening or at night, the risk of confrontation with the occupants of those offices was low.   The burglaries were not particularly sophisticated but there was premeditation.  Mr Crawford kept returning to the same premises.  Valuable electronic items were stolen, and the loss of the work laptops

would have caused stress and inconvenience to the victims.

6      Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

7      R v Nguyen CA110/01, 2 July 2001 at [17].

8      Blissett v Police [2013] NZHC 156 at [36]; Sunnex v Police HC Christchurch CRI-2010-409-

0043, 17 June 2010 at [9].

[31]     The dishonest use of documents and the obtaining of credit by deception offending was serious in its own right.  It resulted in financial and emotional harm to Mr Prasad and his family.  While I accept that Mr Crawford was not, on the case before the Court, involved in the burglary in which Mr Prasad’s items were taken, he used the information obtained from that burglary to obtain a significant pecuniary advantage, and over a period of some months.  It was persistent offending, and in my judgment, the Judge aptly termed it as “identity theft”.

[32]     There are number of comparable cases which assist.

(a)      In Pirini v Police,9  the appellant unsuccessfully appealed against a sentence of two years’ imprisonment for one charge of burglary and other offending.  The burglary involved the appellant and an associate entering a commercial building, and stealing five laptops, to a value of

$10,000.  The sentencing Judge did not refer to a starting point, but simply imposed a sentence of two years for the burglary offending. On appeal Miller J did not consider that starting point to be manifestly excessive.

(b)In Gorrie v Police10 Woolford J upheld a starting point of two years’ imprisonment for an offender who entered backpacker’s accommodation,  stole  a  wallet  and  used  a  bank  card  to  make purchases on two separate occasions. The value of the goods obtained was less than $1,000.

(c)      In Tiopira v Police11  the appellant received stolen credit cards, and used them on 33 occasions to obtain money and goods to the value of

$11,606.21.  On appeal Lang J cited a number of cases, and stated that a starting point of around 12 to 18 months’ imprisonment would be appropriate where the offending results in losses of around $2,000 to

$3,000.   A starting point of 30 months’ imprisonment in that case,

while at the top end of the range, was upheld.

9      Pirini v Police HC Wellington CRI-2010-485-20, 13 April 2010.

10     Gorrie v Police [2015] NCHC 359.

11     Tiopira v Police [2012] NZHC 1720 at [12].

[33]     Given that Mr Crawford’s offending involved three burglaries, and various charges of obtaining by deception, and the dishonest use of documents, in my judgment the starting point of two years and 10 months’ imprisonment cannot be said to be manifestly excessive.

[34]     I now turn to the uplift for previous convictions.  Judge Couch imposed a six month uplift.

[35]     Any uplift for previous convictions has to be proportional to the starting point, and the purpose of an uplift is not to re-punish an offender for prior wrongdoing.12

[36]     In the present case, Mr Crawford has some 81 previous convictions, 31 of which relate to dishonesty offences.  His dishonesty offending spans the years 1997 to 2011.  He has a number of prior convictions for burglary, receiving stolen property and either taking, obtaining, or using documents and/or bank cards and obtaining by false pretences.  He also has several Youth Court notations pertaining to dishonesty offences.  His criminal history is lamentable.  Having received his first conviction in

1997, Mr Crawford has continued to offend multiple times a year with only two notable offence-free periods – namely between 2009 and 2011 and between 2011 and

2014.   That is no doubt, at least in part, explained by the fact that during those periods he was serving sentences of intensive supervision and home detention.

[37]     While I accept that the period of any uplift must be relative to the sentences imposed at the time of the past offending,13 in my view, considering Mr Crawford’s criminal record, the uplift in the present case was not inappropriate.

[38]     I now turn to consider whether or not the personal mitigating factors were adequately taken into account.

[39]     First, I deal with remorse.  I accept that Mr Crawford should have been given

a discount for remorse, and that it does not appear from the Judge’s sentencing notes

that any discount was given in this regard.   Mr Crawford attended a restorative

12     Tiplady-Koroheke v R [2012] NZCA 477 at [23]-[24].

13     O’Connor v R [2014] NZCA 328 at [41].

justice conference.  While some weight must be placed on Mr Prasad’s perception of the apology given at that conference, it does appear from the pre-sentence report, from the report arising out of the conference and from the letter that Mr Crawford wrote to Mr Prasad, that the remorse was genuine.  I do note however that there were other victims  who  filed  victim  impact  statements  –  namely a Ms  Davis  whose cellphone was stolen, a Ms Ross whose computer was stolen, a Ms Tasele whose computer and swipe card was stolen, and a Tuki Magatogia, who was the security manager at AUT.   There does not appear to have been any specific attempts to apologise  to  those  victims.    In  my view,  the  appropriate  discount  to  allow  for remorse is five per cent of the sentence that would otherwise have been imposed – that is a period of two months.

[40]     I also accept that Mr Crawford is entitled to a discount for his rehabilitative efforts.  Again, there is nothing to suggest that Judge Couch allowed any discount in that regard.  He did acknowledge that Mr Crawford had serious rehabilitative needs and long standing drug problems and he acknowledged that Mr Crawford had taken steps to address those problems.  However, Judge Couch was of the view that there were other purposes in sentencing such as denunciation and deterrence, which were more important in this case.

[41]     In  my  view,  Mr  Crawford  should  be  entitled  to  a  discount  for  his rehabilitative efforts.  He self enrolled into the Higher Ground programme, and he completed ten weeks of an intensive residential course.   On completion of that course he was admitted in the Salvation Army Bridge programme.  His motivation to change was assessed as high.   It appears that he has started to recognise and deal with his addiction issues, and in my view he was entitled to a discount to recognise those attempts.  Again, I would allow Mr Crawford a discount of five per cent – or two months – to recognise his rehabilitative efforts.

[42]     I also note that Mr Crawford was subject to EM bail for a period of two and a half months, and then to ordinary bail, but on a 24 hour curfew, for a period of some six months.  These bail terms were restrictive, and in my view it is appropriate to allow Mr Crawford an additional discount, to recognise this factor.  I would discount his sentence by a further period of two months.

[43]     These  discounts  take  the  starting  point  to  a  sentence  of  34  months’

imprisonment.

[44]     The Court then has to recognise Mr Crawford’s guilty pleas.   I agree with Judge Couch that they were not entered at the earliest available opportunity.   The initial charges were laid in November 2014.   There were five charges  – one of burglary, and four of using Mr Prasad’s, or his company’s documents, to obtain credit or the ownership of other property. Guilty pleas were not entered to these charges until March 2015.

[45]     In my view, the discount allowed by the Judge, which amounted to 20 per cent, was not inappropriate.  I would allow a seven month reduction for the guilty pleas.  This reduces the sentence to one of twenty seven months – or two years and three months’ imprisonment.

[46]     For the reasons I have set out, I consider that Mr Crawford should have been given discounts for his remorse, his rehabilitative efforts and the period he spent on restrictive bail.  Together with the discount for the guilty pleas, the end sentence is one of two years and three months’ imprisonment.

[47]     I allow the appeal, and substitute for the final sentence imposed by Judge Couch, a term of imprisonment of two years and three months’ imprisonment on each of the burglary charges, to be served concurrently, and a term of imprisonment of twelve months on each the other charges, also to be served concurrently.  The end

sentence is one of two years and three months imprisonment.

Wylie J