Orchard v Department of Corrections

[2012] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000022 [2012] NZHC 1743

LESLEY RONALD ORCHARD

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:         17 July 2012

Counsel:         D J Venter for Appellant

S N Cameron for Respondent

Judgment:      17 July 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

LESLEY RONALD ORCHARD V DEPARTMENT OF CORRECTIONS HC HAM CRI-2012-419-000022 [17

July 2012]

[1]      Mr Orchard pleaded guilty in the District Court to five charges relating to breaches of his parole conditions.  On 23 April 2012, Judge Tompkins sentenced Mr Orchard to an effective term of 20 months imprisonment on those charges.[1]     He appeals to this Court against sentence on the basis that the Judge erred in principle in constructing the sentence or, alternatively, the Judge imposed a sentence that was manifestly excessive in all the circumstances.

Background

[1] R v Orchard DC Hamilton CRI-2011-019-004132, 23 April 2012.

[2]      Mr Orchard has numerous previous convictions for fraudulent conduct.  On

9 February 2011, he was released on parole having been required to serve the whole of an effective sentence of eight years three months imprisonment imposed on him in respect of serious fraudulent offending.

[3]      On the day of his release, a probation officer inducted him into his release conditions and explained to him the effect of the general and special conditions on which he was being released.  For present purposes, two of the standard conditions and one of the special conditions is of particular relevance.  The standard conditions required Mr Orchard to report to a probation officer whenever directed to do so, and also prohibited him from changing his residential address without first notifying his probation officer of his intention to do so.  The special conditions provided that Mr Orchard was not to hold any position of authority and/or engage in any financial activity with any trust/organisation, in particular not to be a signatory to any monies/funds for any organisation, for the duration for the parole period.

[4]      Mr Orchard appears to have complied with both the special and  general release conditions until 24 May 2011.  On that date, he failed to report at 2 pm as he had previously been directed to do.  The summary of facts records that he arrived at the  probation  service  one  hour  after  he  was  due  there,  namely  at  3  pm.    In

explanation, he said he had got “caught up doing things and seeing people”, and this

had caused him to forget about reporting on time.  The summary also records that when the probation officer instructed Mr Orchard to report the next morning, he became abusive and swore at the probation officer.  This led to the first charge of breaching the release conditions by failing to report to a probation officer as directed.

[5]      On Sunday 29 May 2011, Mr Orchard attended an open home held by a real estate agency at a residential property in Hamilton.  The property in question was shortly thereafter to be the subject of a mortgagee sale.  Mr Orchard approached the real estate agent conducting the open home, and provided him with a business card. He told the agent that he was representing a couple from Raglan and was helping them to purchase investment property.  The following day, Mr Orchard telephoned the agent and sought to obtain details of the financial institution under whose instructions the agent was conducting the mortgagee sale.  This raised the suspicions of the agent, who then “googled” Mr Orchard on the internet.  As a result of these enquiries,  the  agent  became  even  more  suspicious  and  contacted  the  Hamilton Police.

[6]      Two days later, on 31 May 2011, Mr Orchard  reported to his probation officer as requested.   He disclosed to the probation officer that he had hired a manager to run a nightclub that he and his business partners planned to open in approximately four weeks time.   He said he had been obliged to hire a manager because he and his business partners were disqualified from holding a liquor licence due to their criminal convictions.  Mr Orchard also told the probation officer that he was running a competition to name the nightclub on a social networking site, and that he proposed to award the winner of the competition a $500 bar tab to be spent at the nightclub.  Two weeks later, on 14 June 2011, Mr Orchard disclosed that he was in the process of purchasing a share in a well-known Hamilton bar.

[7]      The above incidents were the subject of two of the remaining charges.  They alleged  that  he  had  breached  his  release  conditions  by  becoming  involved  in financial activities.

[8]      By July 2011, Mr Orchard was subject to a standing requirement to report each Tuesday and Friday to his probation officer.   On Tuesday 5 July 2011, Mr

Orchard failed to report as directed.  He made no contact with his probation officer to advise of any reason he could not report.  Thereafter, he never reported on any occasion prior to the expiry of his release conditions on 10 August 2011.

[9]       On 7 July 2011, Mr Orchard’s probation officer conducted an unscheduled home visit to Mr Orchard’s home address.   This was the address described in Mr Orchard’s release conditions.  Mr Orchard was not present at the address when the probation officer arrived, and an  occupant of the address advised the probation officer that Mr Orchard had left the address approximately six weeks previously.  He did so in circumstances where he owed money, presumably for rent, and he had apparently left no forwarding address.  Mr Orchard had not sought approval from his probation officer before moving address.   His whereabouts thereafter remained unknown to his supervising probation officer until 10 August 2011, when his release conditions expired.

[10]     It  appears,  however,  that  Mr  Orchard  made  a  brief  appearance  at  the Hamilton District Court on 5 July 2011.   On that date the charges relating to the breach of his parole conditions on 24 May 2011, 29 May 2011 and 31 May 2011 were due to be called for the first time.  It appears, however, that he left Court before the charges were called and, for that reason, a warrant for his arrest was issued.  This remained unexecuted until 21 January 2012, when the police arrested him.

The structure of the sentence

[11]     The Judge divided the charges into two separate groups.  The first group of charges related to the breaches of the release conditions requiring Mr Orchard to report when directed to do so to his probation officer, and requiring him not to change his residential address without first notifying his probation officer.

[12]     The Judge considered Mr Orchard’s conduct giving rise to these charges amounted to a determined attempt to abscond from supervision by the community probation service.  He considered that the overall culpability in relation to this set of charges warranted a starting point of 12 months imprisonment.  He gave Mr Orchard

a discount of two months to reflect his delayed guilty pleas.  This resulted in an end sentence on those charges of ten months imprisonment.

[13]     The Judge considered the remaining offending fell into a different category, because it comprised breaches of the release condition prohibiting Mr Orchard from engaging in financial activity.  He viewed this as being particularly serious, given Mr Orchard’s  lengthy  list  of  previous  convictions  for  fraudulent  conduct.    These included convictions that related to business ventures, some of which included property transactions that had caused substantial losses to Mr Orchard’s victims.

[14]     The Judge considered these charges also warranted a 12 month starting point. He again deducted two months to reflect Mr Orchard’s guilty pleas, thereby finishing with an end sentence of ten months imprisonment.   He then imposed cumulative sentences of ten months imprisonment on the two sets of charges.

Decision

[15]     Counsel for Mr Orchard submits that the Judge erred in principle in imposing cumulative sentences for the two sets of charges.   He submits that, in reality, the offending all arose out of a single series of events, and that it should therefore have been dealt with by means of concurrent sentences.

[16]     There is nothing in this submission.  The objective in the present case was to select an appropriate end sentence that reflected Mr Orchard’s overall culpability in relation to all of the offending.  If the culpability of that offending warranted an end sentence in excess of 12 months, the Judge was perfectly entitled to impose cumulative sentences designed to achieve the appropriate outcome.  I do not detect any error of principle in the way in which the Judge dealt with this aspect of the sentencing process.

[17]     Next, counsel for Mr Orchard submits that the Judge selected starting points that were manifestly excessive in relation to both sets of charges.  He submits that an appropriate starting point for each set of charges was one of ten months imprisonment.  After allowing a discount for guilty pleas, counsel submits that an

appropriate end sentence was one of 20 months imprisonment, comprising two cumulative sentences of ten months imprisonment.

[18]     In considering this submission, it is necessary to have regard to the nature of

Mr Orchard’s offending.

Breaches of reporting and residential conditions

[19]     I deal, first, in this context with the charges relating to breach of the reporting and residential conditions.  The first charge, namely that relating to the incident on

24 May 2011 when Mr Orchard arrived one hour late, did not justify a sentence of any significance.  It could easily have been dealt with by means of a sentence short of imprisonment.

[20]     The same cannot be said, however, of the remaining charges.  Over the last five weeks of the period during which Mr Orchard’s release conditions remained in effect, he elected to deliberately abscond and thereby deprive the probation service of any ability to monitor his activities.  His conduct was aggravated by the fact that it appears that he left his residential address at about the end of June 2011, and failed to tell his probation officer of the fact that he intended to do so.   This was an important omission, because it deprived the probation service of the ability to visit Mr Orchard’s address in order to contact him in the event that he failed to report as directed.

[21]     The failure to report was also significant, because between 5 July 2011 and

10 August 2011, Mr Orchard was required to report twice each week.  This means that he missed 11 appointments with his probation officer.  That would have been an important period, because his probation officer would undoubtedly have wished to discuss with Mr Orchard his future plans after he ceased to be subject to the release conditions.

[22]     The significance of Mr Orchard’s failure to report is also demonstrated by the manner in which the offending relating to the proposed nightclub was discovered. Mr Orchard candidly disclosed this offending during a scheduled appointment with

his probation officer.   Such appointments were therefore obviously an important means by which Mr Orchard’s probation officer could learn what Mr Orchard was doing  and  what  he  intended  to  do.    The  failure  to  report  between  5  July and

10 August 2011 thereby deprived the probation service of obtaining information

about Mr Orchard’s activities in this way.

[23]     This had a flow-on effect, because as the remaining charges demonstrate, there was a real risk that Mr Orchard was intending to become involved in business activities whilst still subject to his release conditions.  All of those factors aggravate the seriousness of these two charges.

[24]     Counsel have helpfully provided me with a number of sentencing decisions and appeals relating to the breach of release conditions.  These show that sentences of six to eight months imprisonment have been imposed on charges such as the present.[2]

[2] See eg Johnston v Department of Corrections HC Hamilton CRI-2009-419-93, 13 April 2010; Pio v

Police HC Hamilton CRI-2011-419-000042, 9 August 2011.

[25]     In McLean v Police,[3] the sentencing Judge selected a starting point of 12 months imprisonment on two charges relating to the breach of release conditions. The offender in that case had failed to report twice soon after induction, and had then changed address without permission.  After being re-inducted, the offender failed to report  again.     He  also  had  three  previous  convictions  for  breaching  release conditions.  On appeal, the sentence was held to be stern, but within range.  John Hansen J pointed out that the maximum penalty available was not 12 months as had been suggested, but rather 24 months imprisonment given the fact that the offender was being sentenced on two separate charges.

[3] McLean v Police HC Invercargill CRI-2007-425-000034, 1 October 2007.

[26]     All of these factors persuade me that the starting point the Judge adopted in the present case was, at the top of the available range, but not outside it.  For that reason, I do not accept that the starting point in respect of these charges can be said

to be manifestly excessive.

Breaches of conditions prohibiting Mr Orchard from being involved in financial activity

[27]     The  remaining  charges  relate  to  Mr  Orchard’s  determination  to  become involved in business activities, notwithstanding the restrictions placed on him by his release conditions.  Both charges were serious, because they demonstrated a desire by Mr Orchard to become involved in business activities notwithstanding the fact that he had been expressly instructed not to do so just three months earlier.  The fact that he might be contemplating opening a nightclub, and hiring staff to do so, was an obvious matter of concern.

[28]     Similarly,  his  apparent  desire  to  again  become  involved  in  property transactions was a matter of concern.   As I have already recorded, Mr Orchard’s forays into the property investment sphere have not been successful in the past, and have caused significant loss to his victims.

[29]     Given the fact that there were two separate charges, and each on its own could be regarded as serious, I do not consider an end starting point of 12 months imprisonment on both charges to be outside the available range.

Totality

[30]     The  only  remaining  issue  is  whether,  standing  back  and  looking  at  the sentence   of   20   months   imprisonment   in   totality,   it   could   be   said   to   be disproportionate to the offending.

[31]     This  is  a  finely balanced  question.    The Judge  expressly undertook  that exercise after having settled upon the end sentence of 20 months imprisonment.  He considered  the  sentence  not  to  be  manifestly  excessive  “given  Mr  Orchard’s relatively breaching of his parole conditions and the way in which the community at large was put at risk from his intended further dishonesty”.  The protection of the

community is a factor that a sentencing Court is entitled to take into account.[4]

[4] Sentencing Act 2002, s 7(g).

[32]     Mr Orchard presents as an obvious risk of further offending because of his previous history, and also because of the conduct that led to the present charges. That being the case, I consider the Judge was entitled to put the protection of the community to the forefront.  I am not persuaded that an end sentence of 20 months imprisonment can be said to be manifestly excessive having regard to totality principles

Result

[33]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Eastside Law, Hamilton