Laycock v New Zealand Police HC Christchurch CRI 2008-409-000113

[2008] NZHC 2468

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000113

EUAN JOHN LAYCOCK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 July 2008

Counsel:         P N Dyhberg for Appellant

R M Thomas for Respondent

Judgment:      31 July 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      In this appeal against sentence the appellant challenges an effective sentence of two years six months imprisonment imposed in relation to 23 charges of using a document with intent to obtain a pecuniary advantage.   Perhaps the most notable feature of the case from a sentencing perspective was the extent of the breach of trust which was involved.

[2]      The victim was a woman aged 73.  She and her son, who lived in her home, had befriended the appellant.   He had been provided not only accommodation but

also support by this family.  This occurred on the West Coast, near Greymouth.

EUAN JOHN LAYCOCK V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000113  31 July 2008

[3]      In  early  December  2007  the  complainant  woman  was  in  the  process  of shifting home.   Mr Laycock offered to assist in that process.   But he took the opportunity to steal a cheque book.   Then between 5 and 30 December 2007 he cashed the cheques which became the subject of the charges, I think 22 in all, together with the charge referable to the cheque book itself.   The total amount involved in relation to the cheques was $10,330.

[4]      He first appeared in the District Court on 12 February.  Pleas of guilty were entered reasonably soon thereafter on 2 April.   A sentence was imposed here in Christchurch on 6 June.

[5]      Judge  Farish  adopted  a  starting-point  of  two  years  nine  months.    An allowance of six months was made in recognition of the guilty pleas, that is a deduction of approximately 18 per cent.  Because the appellant had paid a sum in reparation of about $6,000, a further reduction was made to recognise this factor. The Judge described the reduction as one of two months imprisonment, but in fact on the calculation of the end sentence, the credit allowed was actually three months. Thereby she had reached a sentence of two years imprisonment, but an uplift was made on account of the appellant’s recidivism, that is to recognise that this was further offending by an incorrigible conman.  The uplift of six months produced the end sentence of two years six months imprisonment.  In addition Mr Laycock was directed to repay the balance of $4,260 by way of reparation.

[6]      He is a mature man aged 49 years.  He has a list of previous convictions that run to some seven pages.  There are, I am told, 176 previous convictions for various offences of dishonesty.  These have been committed over a period of about 18 years from about 1989 to the present time.  A feature of his list, it seemed to me, is that he began offending in Auckland.  There were then a number of offences in Tauranga, in Napier, in Nelson, in Dunedin and now these ones committed in Greymouth and sentenced in Christchurch.  This suggests a somewhat familiar pattern, of someone involved in serial dishonesty;  that they move from place to place in order to offend.

[7]      Aside from his list Mr Laycock suffered from the disadvantage that the pre- sentence report was generally unfavourable.  He was assessed at high risk of further offending and as unmotivated to address the causes of his offending.

[8]      What, then, is the basis of the appeal?  Mr Dyhrberg advanced two essential arguments.  The first was that the Judge was wrong to treat the appellant as devoid of genuine remorse.  In particular, counsel submitted that the fact of payment of such a substantial  sum  of  reparation  was  at  odds  with  a  contention  that  he  was  not remorseful for his offending.

[9]      The  second,  and  I  think  the  main  argument,  was  that  the  starting-point adopted for the sentencing exercise, two years and nine months, was simply too high and that in the end result the end sentence was askew as a result.

[10]     I am not persuaded that there is anything in the remorse point.  Firstly, I do not consider myself, sitting on appeal, well placed to make a judgment contrary to that of the Judge who saw the appellant in the District Court, that is concerning his attitude.  To the extent that the payment of reparation should be taken as indicative of remorse, the Judge did so in making a three month deduction from the starting- point.

[11]     To my mind the substantial argument in relation to this appeal concerns that starting-point of two years and nine months.  What the Judge said was that there was no tariff for dishonesty offending of this kind.  I agree.  That said, there is guidance to be had by reference to previous cases and, in particular, cases which have been decided ultimately in the Court of Appeal, in particular in the decision R v Singh (2002) 20 CRNZ at 158.   A divisional court conducted a review of  five  cases concerning essentially recidivist offenders appearing for sentence with reference to multiple charges of dishonesty.  Although Singh cannot be described as a tariff case, it is certainly helpful because it provides guidance with reference to the appropriate level of sentences of imprisonment for offending of the present kind.  I am told that the case was referred to the sentencing Judge and certainly on appeal, counsel has relied upon it.

[12]     Two of the cases surveyed in Singh have been particularly drawn to my attention.  One is the case of R v Townhill 7/12/2000, CA392/00, where a sentence of

18 months imprisonment for cheque offences involving $21,000 was upheld.   The other case particularly mentioned was that of R v Whitelaw 21/2/2002, CA392/01, where there were six fraud charges involving a total of just over $4,000.  Again a sentence of 18 months imprisonment was  imposed  and  upheld  by the  Court  of Appeal.   I do not mention the other cases contained in the survey because they concerned offenders who had defrauded victims for rather greater sums than I am concerned with in the present appeal.  Accordingly I agree with Mr Dyhrberg that the cases of Townhill and Whitelaw are the most relevant.   Both of these cases involved recidivist offenders who I doubt can be distinguished from the present appellant.

[13]     When I first came to this appeal my immediate impression was that the starting-point was out of line for offending involving a sum of $10,000. Unquestionably this was a bad case on account of the extent of the breach of trust involved.  But even so, the end sentence must most of all reflect the extent of the dishonesty as measured by the amount which was taken.  That initial impression has been confirmed upon reading the decision in Singh.

[14]     Ms Thomas, in seeking to defend the sentence, described the starting-point as stern, saying “there could be no doubt about that”, but contended it was available to the Judge in a situation where there is no well-defined tariff.  I am afraid I disagree. To my mind the starting-point was simply too high and beyond the available range.

[15]     In my view the most which was available by way of a starting-point was a sentence in the range of 24 to perhaps 27 months, and that range takes account of the personal aggravating feature of Mr Laycock’s recidivism.

[16]     Accordingly the conclusion I reach is that the end sentence should be no more than 18 months imprisonment after making similar deductions for the plea and payment of reparation as arrived at by the sentencer.  I accordingly allow the appeal, quash the sentence of two and a half years imprisonment and substitute a sentence of

18 months imprisonment.  In that event it is possible to impose special conditions of

release and indeed counsel submitted that this may be an appropriate course, given the  appellant’s  background.    However,  without  guidance  provided  in  the  pre- sentence report, I am not persuaded that special conditions of release are appropriate and accordingly only the standard conditions will apply.

[17]     The order for reparation will, of course, stand.

Solicitors:

Peter Dyhrberg Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent