Linford v Police
[2017] NZHC 2166
•31 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-302 [2017] NZHC 2166
BETWEEN JAMES GEORGE LINFORD
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 October 2017 Counsel:
A J Holland (on instructions from A C Cresswell) for Appellant
I S Ko for RespondentJudgment:
31 October 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 31 October 2017 at 12 noon pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
LINFORD v POLICE [2017] NZHC 2166 [31 October 2017]
Annabel Cresswell (Auckland) for Appellant
Kayes Fletcher Walker (Auckland) for Respondent
Introduction
[1] Mr Linford appeals a sentence of 26 months’ imprisonment imposed on him by Judge N Sainsbury on 17 August 2017.1
[2] A number of grounds of appeal were advanced in written submissions. However, Mr Holland, who appeared for Mr Linford before me, abandoned all but two of the grounds. The two grounds remaining are that the starting point was too high and that the uplift for Mr Linford’s history of criminal offending and his offending while on bail was excessive.
[3] The overall submission is that if I find the Judge to have erred in these respects, I will conclude that the end sentence is manifestly excessive.
Background
[4] Judge Sainsbury had to sentence on 18 charges. I reproduce the helpful table which was provided to me in the appellant’s written submissions:
Charge CRN Date/details of offence Sentence imposed Obtains by
deception (less than
$500)
17092005201 18/09/16
The appellant (“A”) came into possession of equipment and sold it to Cash Converters
Reparation $350,
one month
Obtains by
deception (less than
$500)17004001785 19/06/16
A came into possession of equipment and sold it
to Cash Converters
Reparation $450,
one month
Takes/obtains/use
credit card
17092002192 21/10/16 to 24/10/16
A used a stolen Q card and used it several times in three days
Reparation
$1,773.47, two years two months
Possession of
utensils for cannabis
16092013593 25/10/16
A was found in possession of a pipe for smoking cannabis
Three months Possession of
utensils for methamphetamine
16092013961 25/10/16
A was found in possession of a pipe for
Three months
1 Police v Linford [2017] NZDC 18477.
smoking
methamphetamine
Possession of
methamphetamine
16092013592 25/10/16
A was found with one gram of methamphetamine
Three months Resist police 16092013594 25/10/16
A swung his arms whilst being arrested
One month Receives property
(over $1000)
17092007156 01/06/17
A came into possession of a stolen cellphone and Visa Debit Card
Two years, two
months
Take/obtain/use
credit card
17092007157 01/06/17
This charge is in relation to A obtaining the Visa debit card
Two years, two
months
Take/obtain/use
credit card
17092007192 01/06/17
A used the Visa debit card he received at a
petrol station
Reparation
$231.90, two years, two months
Theft ex car 17092001928 08/11/16
A broke into the victim’s
car and stole her belongings
Reparation $1,000,
two years, two months
Take/obtain/use
credit card
16092014763 17/11/16
A obtained a BNZ bank card
Two years, two
months
Take/obtain/use
credit card
16092014764 17/11/16
A used the BNZ bank card
Reparation
$178.20, two years, two months
Take/obtain/use
credit card
16092014761 17/11/16
A obtained a Kiwibank bank card
Two years, two
months
Take/obtain/use
credit card
16092014762 17/11/16
A used the Kiwibank bank card
Reparation
$393.55, two years, two months
Possession of
utensils for methamphetamine
16092014765 18/11/16
A was found in possession of a pipe for smoking methamphetamine
Three months
[5] The two charges missing are breach of community work and breach of bail upon which Mr Linford was convicted and discharged. He had also the benefit of his existing community work sentence being cancelled.
[6] Judge Sainsbury structured his sentencing by adopting a global starting figure for the more serious dishonesty offending of 18 months’ imprisonment. He added six months for the rest of the dishonesty offending, making a starting point of 24 months for all of the charges relating to dishonesty. The Judge added three months for the
drugs offending and gave an uplift of eight months for previous criminal history and for committing offences on bail.
The first ground of appeal: excessive starting point
[7] Mr Holland concentrated on the portion of the starting point for the dishonesty offending which resulted in an 18 months assessment. The charges involved were for receiving and using credit cards.
[8] I was referred to Rako v R where a starting point of 18 months’ imprisonment for 11 offences, through which $1,800 were obtained, was considered by the Court of Appeal to be at the top of the acceptable range.2
[9] I was referred also to Tiopira v Police,3 in which Lang J observed that a starting point of 12 to 18 months’ imprisonment could be expected in cases where an offender has made use of multiple stolen credit cards resulting in losses of the order of $2,000 to $3,000.
[10] In that case, Mr Tiopira came into possession of stolen credit cards and Eftpos cards on four separate occasions. He used them 33 times to obtain money and goods to the value of $11,606.21. He had an extensive criminal history involving different kinds of dishonesty. The Judge whose decision was appealed to Lang J took a starting point of 30 months’ imprisonment to reflect the totality of all the offending. The single ground of appeal was that 30 months’ imprisonment was manifestly excessive.
[11] Justice Lang considered that a starting point of more than three years’ imprisonment will be reserved for cases where very significant sums are involved. However, cases where an offender has made multiple use of stolen credit cards or cheques “demonstrate 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”.4 His Honour noted, however, that counsel had not been
2 Rako v R [2015] NZCA 463.
3 Tiopira v Police [2012] NZHC 1720.
4 At [12].
able to find any comparable case involving the use of several stolen credit cards and total losses of around $11,000.
[12] Justice Lang considered that the use of multiple stolen credit cards, on 33 separate occasions, and obtaining some $11,000, justified lifting the starting point significantly above the 12 to 18 months range. Therefore, although finding that the
30 months starting point was at the top of the available range, Lang J dismissed the appeal.
[13] In this case, I have no doubt that an 18 months starting point for the use of the credit cards was within the range available to Judge Sainsbury. The first offending took place from 21 October 2016 to 24 October 2016. The card was from a stolen wallet and Mr Linford used it 21 times, and on 14 occasions obtained goods to the value of $1,931.47.
[14] On 17 November 2016, two victims had their cars broken into and credit cards stolen. Mr Linford obtained both credit cards on the same day. A Kiwibank bank card was stolen from the first car and a BNZ bank card from the second car. Over the next couple of days, Mr Linford used the Kiwibank bank card five times and the BNZ bank card three times. The amounts received were modest, being $393.55 on the Kiwibank bank card and $178.20 on the BNZ bank card.
[15] Finally, another victim had their car broken into on 31 May 2017/1 June 2017. A Samsung cellphone and a BNZ Visa debit card were stolen. Mr Linford was arrested in possession of both, and had used the debit card to obtain $231.90.
[16] So, a total of four victims whose cards were used and a total of $4,508.59 obtained.
[17] This fact picture justifies an 18 months starting point and, considering Tiopira, a higher starting point could have been set.
The second ground of appeal: uplift for history and offending while on bail
[18] Mr Linford had convictions for drug offending and dishonesty covering several years. He had been imprisoned under both categories of charges. Of particular note to Judge Sainsbury was that he was sentenced to imprisonment for offences that were committed in late 2015. Those offences included receiving stolen property, taking and using bank cards, as well as drug offending and burglary. He commenced his current offending spree shortly after he was released from prison. Judge Sainsbury identified Mr Linford as being a persistent offender.
[19] Further, Mr Linford was arrested and given bail during the course of the current offending, but continued offending notwithstanding. Again, Judge Sainsbury referred to this under the heading of “persistent offending”.
[20] Judge Sainsbury also took into account that one reason why Mr Linford was given bail was so he could go into a drug rehabilitation programme and get credit for that when he came for sentencing. However, Mr Linford did not attend the drug rehabilitation programme and simply continued offending.
[21] The uplift of eight months imposed by Judge Sainsbury amounts to, Mr Ko said, 30% (rounded) of the starting point of 27 months’ imprisonment for the actual offending. Mr Holland, who made careful oral submissions on behalf of Mr Linford, referred me to the decision of the Court of Appeal in Brown v R where the Court considered that an uplift of eight months on a starting point of two years and eight months was excessive.5 It amounted to an uplift of 25% on the starting point. The Court of Appeal found that the uplift was disproportionate to the starting point, although I note that this was in the context of sentencing for violence where the guideline judgment is Nuku v R6 and the concern expressed by the Court of Appeal was that the uplift put the sentence outside of the band in which the offending had
been located.
5 Brown v R [2014] NZCA 93.
6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[22] Mr Holland submitted that even if I find the uplift to be warranted, if I also found the starting point to be stern then it would not be right to add eight months’ imprisonment to what would otherwise have been an appropriate sentence.
Decision
[23] I have to stand back and look at the sentence as a whole. I have to decide whether a sentence of 26 months’ imprisonment was manifestly excessive given the totality of Mr Linford’s offending as disclosed by the charges. Even if I were to find that Judge Sainsbury adopted starting points or uplifts which were too high, I would only disturb the sentence if the overall result was manifestly excessive.
[24] I find that Judge Sainsbury’s sentence was well within the range available to him. The starting point of 18 months for the more serious dishonesty offending could have been higher. There were four victims involved and persistent offending. The uplift of six months for the other dishonesty offending was well within the range available to the Judge. There can be no quarrel with an overall starting point of
24 months’ imprisonment for all of the dishonesty offending.
[25] Likewise, the three months uplift for the drugs offending is unexceptional.
[26] The uplift of eight months’ imprisonment for Mr Linford’s previous criminal history and for the fact that he was offending on bail is high given that it amounted to
30% of the 27 months starting point. But percentages are one thing and the facts they are based on another. The purpose of an uplift for previous criminal history is primarily to deter. In other words, the offender is not learning from his previous sentences and higher sentences are warranted to bring that home to them.
[27] Here, Mr Linford had only just been released from prison for similar offending and he began again. An uplift of 10 to 15% was justified. Likewise, the fact that much of the offending occurred while Mr Linford was on bail warrants an uplift to denounce and deter such disregard for the conditions on which he was allowed liberty pending trial. Here, Mr Linford began to offend and was granted bail so as to give him the chance to undergo rehabilitation and claim credit for it at sentencing. He chose to disregard that opportunity and to carry on offending. Judge Sainsbury had to mark
that situation with an appreciable uplift. Accordingly, I find the eight months uplift to be within the range available to the Judge, although at the upper end of it.
[28] Standing back and looking at the totality of Mr Linford’s offending, I cannot say that the end sentence of 26 months is manifestly excessive. Indeed, I find it to be within the range available to the Judge.
Conclusion
[29] The appeal is dismissed.
Brewer J
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