Laurence v Police HC New Plymouth CRI-2011-443-044

[2011] NZHC 1985

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-044

JEFFREY WILLIAM LAURENCE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 December 2011

Appearances: K Pascoe for the Appellant

A Britton for the Respondent

Judgment:      12 December 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Ms K Pascoe, Nicholsons, Solicitors, New Plymouth

Mr A Britton, C & M Legal, Office of the Crown Solicitor, New Plymouth

LAURENCE V POLICE HC NWP CRI-2011-443-044 12 December 2011

[1]      The  appellant  was  convicted  in  the  District  Court  on  two  charges  of dishonesty.  There was a charge that between 15 and 23 March 2011 he dishonestly used an EFTPOS card to obtain meals and accommodation totalling $1,109.  There was a second charge of obtaining credit by fraud, between 27 March and 2 April

2011. The total was $1,261, again for accommodation and meals.

[2]      On 30 September 2011 Mr Laurence was sentenced to two years nine months imprisonment.[1]    He appeals against the sentence on the grounds that the sentence was manifestly excessive.  The appeal focuses, in particular, on a starting point of two years and six months imprisonment.

The offending

[1] Police v Lawrence DC New Plymouth, CRI-2011-043-001968, 30 September 2011.

[3]      Between 15 and 27 March 2011 the appellant was at a hotel in Palmerston North.  On 18 March he got a meal at a restaurant which he said should be charged back to his hotel.  The cost of the meal was $109. (I am rounding all figures.)  He checked out of the hotel on 27 March.  He produced an EFTPOS card for payment of the accommodation bill of $1,000 and the meal, claiming that the card could be used as a credit card, which it could not be.

[4]      The second offence occurred when the appellant was staying at another motel or hotel in Palmerston North between 27 March and 4 April.   By then he had suffered an injury to his Achilles tendon.  This injury had occurred when he was at the other hotel.  He told the owner of the second hotel that ACC would pay the cost of the accommodation.  He checked out without paying.  There was no arrangement with ACC.

[5]      The sentencing by Judge Thomas on 30 September proceeded in substantial measure on the basis of a sentencing indication given by Judge Garland on 15 July. Judge Garland had indicated a starting point of two and a half years imprisonment

having regard to what the Court of Appeal said in R v Duncan[2]  at paragraphs [11]-

[13]. There was no discussion by Judge Garland of aggravating features (or mitigating features) of the offending relevant to the starting point. Judge Thomas touched on the circumstances of the offending on sentencing, but again there was no indication of particular features of this offending which put it into any bracket in terms of a starting point.

[2] R v Duncan [2009] NZCA 408; CA345/2009, 15 September 2009.

[6]      Judge Garland  had  indicated an  uplift  of  “at  least”  one  year because  of previous offending.   Judge Thomas agreed with this, noting that the appellant has

240 prior convictions for dishonesty and that he had been in prison most recently in

2009.

[7]      Judge Thomas referred briefly to personal factors and an explanation offered in relation to payment coming from ACC.   It is apparent that the Judge did not consider that there should be any credit in relation to any personal factors other than a guilty plea.   Judge Thomas again agreed with Judge Garland’s assessment of a discount of 20% for the guilty plea.   Following an uplift of 12 months for the previous offending, the 20% discount produced the end sentence of two years and nine months imprisonment.   There was also an order to pay reparation on each charge for the sums involved, $1,261 and $1,109.

[8]      In support of the appeal Ms Pascoe at the outset acknowledged that, on an appeal, the task is not to determine whether the sentencing Judge may have followed the appropriate sentencing process, as outlined in Taueki[3], but whether the end sentence can definitely be said to be manifestly excessive.   Having acknowledged that, Ms Pascoe submitted that the difficulty here is that it is not apparent from the sentencing notes as to the particular features of this offending which led to Judges to

conclude that the starting point should be two years and six months imprisonment;

that is, other than the reference to Duncan.

[3] R v Taueki [2005] 3 NZLR 372 (CA).

[9]      I do accept that submission.  With respect, the brief reference to Duncan is not of great assistance in determining the gravity of this offending.  Duncan involved charges of theft.  And the two other cases referred to in Duncan were cases of theft. That does not make Duncan and the other cases inapplicable, but they are of less assistance for comparative purposes than sentences imposed in cases of obtaining credit by fraud and similar offending.

[10]     For the Crown, Mr Britton helpfully referred to a number of cases.   These are: Simpson v Police;[4]  Barwell v Police;[5]  Hardwidge v Police[6]  and Ede v Police.[7]

To the extent that other cases can assist, my view is that the facts of those cases indicate that the starting point in this case was outside the range open to the Judge: that is to say, it was too high.  The distinguishing feature between the present case and at least two of the cases referred to by Mr Britton is that in those cases the victims of the dishonesty were vulnerable – substantially more vulnerable than the victims in this case.  For example, Simpson involved three offences of obtaining a total of $12,300 by deception of an elderly woman.  In that case the precise starting point had not been indicated by the sentencing Judge, but on appeal Venning J indicated that a starting point of around two and a half years was appropriate.

[4] Simpson v Police HC Auckland, CRI-2005-404-000068, 12 August 2005, Venning J.

[5] Police v Barwell and Barwell v Police HC Christchurch, CRI-2006-409-000077 and CRI-2006-409-000078, 6 July 2006, John Hansen J.

[6] Hardwidge v Police HC New Plymouth, CRI-2006-043-814, 27 June 2006, Clifford J.

[7] Ede v Police HC Christchurch, CRI-2007-412.000011, 5 June 2007, Fogarty J.

[11]     In this case the appellant claims that he had not set out to defraud anyone, but the opportunity arose and he took that opportunity.  As I understand it there is no material challenge to that assertion.  Having regard to the fact that the appellant has

240 previous convictions for dishonesty, statements of this nature are bound to be treated  with  real  scepticism.     However,  there  is  some  independent  evidence supporting the contention. This was touched on briefly in the sentencing notes, but it is not apparent that it was given any particular weight.  It is not in dispute that the appellant did injure his Achilles tendon after he had booked into the first hotel.  He was staying there to go to a field day in Palmerston North.  He got some emergency medical treatment, was put into what is called a moon-boot and instructed to keep

the leg elevated.   The last matter comes from the appellant’s instructions to Ms

Pascoe.     And I remain entirely sceptical about that because, obviously, he was getting out and about for his meals.  The point is, however, that the injury led to the appellant’s embarking on another course of deception which he has been doing for many years. At least to this extent it was opportunistic.

[12]     When considering the facts of the offending in a little more detail, while treating the appellant’s assertions with appropriate scepticism, and when comparing this offending with other cases of similar types of offending, I do consider that a starting point of two years and six months is too high. Analysing the starting point is not  determinative  of  the  question  as  to  whether  the  sentence  was  manifestly excessive, but it is the most appropriate way of approaching the matter in this case.

[13]     Having come to that conclusion I do accept Ms Pascoe’s submission that the starting point for these two offences should be around 18 months imprisonment.  I emphasise that that is looking solely at the offending.  There is then a question as to whether there should be an uplift of 12 months, being the uplift assessed by two Judges in the District Court.  Against a starting point of 18 months, if considered on a proportional basis, an uplift of 12 months is a great deal.  Nevertheless, I am not persuaded that it is excessive in the circumstances.  As Mr Britton pointed out, the

Court of Appeal in R v Duncan[8] observed, at [15], that “uplifts of a year or more in

[8] R v Duncan [2009] NZCA 408.

relation to recidivist burglars are not uncommon: see for example R v Columbus

[2008] NZCA 192”. The appellant is a recidivist fraudster.

[14]     An uplift of 12 months takes the sentence to 30 months imprisonment.  There was no substantial argument on appeal that there should be a greater reduction than the 20% that was allowed for the guilty plea.  Applying that discount results in an end sentence of two years imprisonment.

[15]     Having approached the matter in this way, and come to an end sentence of two years imprisonment, I am satisfied that the end sentence imposed of two years

and nine months is manifestly excessive.

[16]     Consequently the appeal is allowed.  The sentence of imprisonment of two years and nine months is quashed and a sentence of two years imprisonment is

substituted. The other orders of the Court are unaffected.

Woodhouse J