Rako v R
[2015] NZCA 463
•28 September 2015 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA367/2015 [2015] NZCA 463 |
| BETWEEN | ABRAHAM RAKO |
| AND | THE QUEEN |
| Hearing: | 21 September 2015 |
Court: | Harrison, Dobson and Gilbert JJ |
Counsel: | D J Matthews and T Singh for Appellant |
Judgment: | 28 September 2015 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Following a trial before a Judge and jury in the Auckland District Court, Mr Rako was found guilty of 11 charges of using a document to obtain a pecuniary advantage. He also pleaded guilty to theft, unlawfully converting a motor vehicle, unlawfully taking a motor vehicle and driving while forbidden. Judge Dawson convicted and sentenced Mr Rako to two years and nine months’ imprisonment for these offences.[1] Mr Rako appeals against this sentence on the ground that it was manifestly excessive.
[1]R v Rako [2015] NZDC 10138.
The Judge adopted a starting point of 18 months’ imprisonment for the lead offending, being the 11 offences of using a document to obtain a pecuniary advantage. He applied an uplift of three months’ imprisonment for Mr Rako’s prior convictions for similar offending. The Judge imposed cumulative sentences of six months’ imprisonment for each of the offences of unlawfully taking a motor vehicle and conversion of a motor vehicle. A concurrent sentence of six months’ imprisonment was imposed for the theft. Mr Rako was convicted and discharged for driving while forbidden.
Mr Rako argues that the starting point for the lead offending of 18 months’ imprisonment was too high and should have been 12 months’ imprisonment. He accepts the uplift for his previous convictions and the starting points adopted for the offences involving the motor vehicles and the theft. However, he contends that the Judge was wrong not to allow a discount of 25 per cent for his early guilty pleas to these lesser charges. This would have reduced the effective end sentence by three months’ imprisonment.
Starting point
The Judge briefly summarised the facts relating to the lead offending as follows:
[2] With respect to the first set of charges, the victim in this matter arrived as a tourist from the United States to New Zealand on 7 February 2013. While travelling on a train from Auckland, she met you and became friendly with you and you encouraged her to stay with you and you swapped mobile telephone numbers. As a result, on 12 February 2013 she arrived at your home address in Weymouth and lived with you there until 21 February 2013.
[3] She had a Redwood Credit Union debit card in her name and she was the only person authorised to use that card. She never gave anyone else any authorisation to use that card or access to her bank account. Her card was stored in her backpack when she was not using it and that backpack was left in the house she was living at with you.
[4] She was shown around the greater Auckland region by you on frequent occasions and during those times she sometimes used her card in your presence. On a number of occasions, however, you helped yourself to the debit card by removing it from her backpack without permission, used it, usually overnight when she was asleep, and then returned it to her backpack without her realising that that was the case. When she raised her concerns with you, you indicated that you had a brother in the fraud department who would look into the matter, which allayed her fears to some extent until she realised that that was not, in fact, the case.
The amount Mr Rako unlawfully obtained in this manner was approximately $1,800.
In challenging the starting point, Mr Matthews relies particularly on this Court’s decision in Turner v R where a starting point of 18 months’ imprisonment was upheld for offending that he argues was more serious.[2] In that case, two offenders bullied a 72 year old man who had a brain tumour and who was living alone into handing over his bank card. The card was used 19 times over a four day period to make cash withdrawals totalling approximately $5,000. The offenders also attempted to use the card on six further occasions but were unsuccessful.
[2]Turner v R [2014] NZCA 454.
The facts in Turner are clearly distinguishable from the present. Although he was pressured to do so, the victim knowingly handed over his bank card to the offenders. By comparison, Mr Rako gained the victim’s trust enabling him to remove her card from her backpack without her knowing, usually while she was asleep in his house. An additional aggravating feature of the present case is that when the victim became aware of discrepancies in her account, Mr Rako deceived her into believing that his brother worked for the “Fraud Department” and would help her recover the money. Further, we note that in upholding the starting point of 18 months’ imprisonment in Turner, this Court did not suggest that this was at the upper end of the available range; it was described as “fully justified”.[3] A higher starting point could have been justified in that case.
[3]At [10].
Mr Matthews also relies on this Court’s decision in R v Singh where the offender used credit card details belonging to others to purchase items with a combined value of approximately $3,000.[4] In that case, the starting point was reduced from two years’ imprisonment to 18 months’ imprisonment. Mr Matthews submits that the offending in Singh was also more serious than in the present case because the loss was higher, there were multiple victims and the operation was more sophisticated. That case, decided over 12 years ago, provides only limited assistance because the facts are quite different and no starting point was identified.
[4]R v Singh (2003) 20 CRNZ 158 (CA).
Mr Matthews also referred us to a number of High Court authorities in support of his submission that the starting point ought to have been no higher than 12 months’ imprisonment. However, there is no tariff or guideline case for this type of offending because it can occur in such a wide range of circumstances. For this reason, there is only limited utility in examining other sentencing decisions to determine the appropriate outcome in a given case. Nevertheless, as can be seen from the examples listed below, a starting point in a range from 12 to 18 months’ imprisonment has been applied where credit or debit cards are unlawfully used on multiple occasions resulting in losses of the order of $2,000 to $6,000:
(a)In Keenan v Police, Fogarty J adopted a starting point of 12 months’ imprisonment for two charges of fraudulently using a credit card and a cashflow card in 31 transactions involving a total of approximately $4,700.[5] He observed that sentences of 18 months’ imprisonment or more would be appropriate where a significant amount was stolen or the offender has at least one previous conviction.[6]
(b)In Walsh v Police, Woodhouse J adopted a starting point of 12 months’ imprisonment for various fraud offences including four of dishonestly using an Eftpos card over a seven day period to make cash withdrawals totalling $2,050.[7]
(c)In Edwards v Police, Heath J considered that 18 months’ imprisonment would be an appropriate starting point where the offender unlawfully presented cheques on 10 separate occasions over a one month period to the total value of approximately $6,000.[8]
(d)In Tiopira v Police, after reviewing earlier decisions, 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 or cheques resulting in losses of the order of $2,000 to $3,000.[9] In that case, the offender obtained money and goods to the value of approximately $11,600 in 33 transactions over a 14 day period using several stolen credit and Eftpos cards. A starting point of 30 months’ imprisonment was upheld to reflect the totality of this offending.
[5]Keenan v Police HC Christchurch CRI-2007-409-97, 5 June 2007.
[6]At [6].
[7]Walsh v Police HC Tauranga CRI-2010-470-36, 18 March 2011.
[8]Edwards v Police [2012] NZHC 737.
[9]Tiopira v Police [2012] NZHC 1720 at [12].
In the first three of these decisions, the Judges would have been entitled to adopt higher starting points. Culpability is not to be measured solely or even primarily by reference to the amount at issue. Other aggravating factors are relevant.[10] In particular, we refer to the multiplicity of offending, its duration, the degree of premeditation, the vulnerability of the victim and breach of trust. A composite evaluation of all these factors is required.
[10]Varjan v R CA97/03, 26 June 2003 at [22].
We consider that the starting point adopted in this case was at the top of the acceptable range but we are not persuaded that it was manifestly excessive in all of the circumstances. Mr Rako targeted the victim, a young female tourist from the United States who was travelling on her own. He befriended her and persuaded her to stay at his home with the intention of stealing from her. The offending was persistent and premeditated and involved a cynical breach of the trust the victim had placed in him. When the victim discovered that there had been unauthorised transactions using her card, she discussed this with Mr Rako. As noted, he then further deceived her by claiming that he had a brother who worked in the “Fraud Department” and that her complaint would be investigated. A short time later, Mr Rako told her that the Fraud Department had found the person responsible and that the money would be returned in a couple of days. This was a complete fabrication designed to conceal his offending and it successfully delayed the victim in reporting the matter to the police.
Discount for guilty pleas
Mr Rako pleaded guilty at an early stage in respect of the charges of unlawfully taking a motor vehicle, conversion of a motor vehicle and theft but no discount for this was given.
We accept that Mr Rako was entitled to a 25 per cent discount for his early guilty pleas to these charges.[11] The Judge overlooked this. There is no dispute that a discount of three months should have been allowed.
[11]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
However, the critical issue is whether or not the end sentence is manifestly excessive, not how it was arrived at. The Judge’s error in not allowing a three month discount for Mr Rako’s early guilty pleas to the three lesser offences was offset by the fact that he did not apply an uplift to recognise that these offences were all committed while Mr Rako was on bail for the more serious offences. An uplift of three months’ imprisonment would have been appropriate for this aggravating factor which the Judge appears not to have been aware of. These errors cancel each other out.
Moreover, the Judge would have been justified in applying an uplift greater than three months’ imprisonment to reflect Mr Rako’s long history of offending. He has 17 previous convictions for offences involving dishonesty spanning a period of 21 years. These include numerous convictions for theft, obtaining by false pretences, receiving and unlawfully taking motor vehicles.
Was the end sentence manifestly excessive having regard to the totality of the offending?
In relation to the charge of unlawfully taking a motor vehicle, the facts are that Mr Rako went to the victim’s address and saw a BMW motor vehicle with no registration or compliance parked in the driveway. He told the victim that he had a good knowledge of vehicles and could resolve these issues for her at a cost of approximately $350. Three weeks later, as arranged, the victim handed Mr Rako the keys to her vehicle so that the necessary work could be completed at a garage in Manurewa. After the victim had not heard from Mr Rako for two weeks, she called him and asked what was happening. Mr Rako responded that the vehicle was not up to compliance standard and further work was required. He said that this would take another few weeks but would not cost more than originally estimated.
The victim again contacted Mr Rako two to three weeks later to enquire about progress. Mr Rako advised that she could pick the vehicle up from the garage. However, when she got there, she was told that her vehicle had never been at the garage. The victim returned home and endeavoured to make contact with Mr Rako by text message, telephone and on Facebook but he did not respond. A few weeks later, Mr Rako advised the victim that her vehicle was at a garage in Manurewa. The victim replied that she had already been there to collect the vehicle but it was not there. He later told her that the vehicle was somewhere in Mangere but refused to give her any further information. The vehicle, estimated to be worth $2,500, was never returned to the victim.
The facts giving rise to the other two charges, which were related, were summarised by the Judge as follows:
[7] With respect to the unlawfully converting a motor vehicle and theft from a car, the facts relating to that matter are that you knew the victim through a work acquaintance. He worked as an operations manager for a security company. At 9.00 pm on Saturday 5 July 2014 you were at a bar in Botany. Also working as security at that bar was the victim. You overheard the victim was driving to the Stampede Bar in Papakura and asked the victim for a ride, which the victim agreed to give you. You both drove in that vehicle to Papakura.
[8] When you arrived at Papakura, the victim discovered that one of the staff members had not shown up for work. You suggested that you had a security certificate and you could work the shift and told him you just needed to borrow his vehicle to go to your address and get changed. The victim agreed and handed over the vehicle to you. He waited the whole night but you never returned with the vehicle.
[9] You uplifted the victim’s wallet containing his driver’s licence, ASB Eftpos card, miscellaneous cards and four portable radios from inside the victim’s vehicle. On 21 July 2014 the victim’s vehicle was stopped by the police in Karapiro being driven by a female who indicated that the vehicle had been given to her by you. The vehicle was returned to the victim but his wallet, cards and radios were missing.
This offending, considered together with the credit card offending, discloses a pattern of Mr Rako defrauding acquaintances who have placed their trust in him. Mr Rako has a long history of offending in a similar way. He has not responded to previous sentences, including sentences of imprisonment. The Judge rightly took this into account in determining the sentence required to meet the purposes of sentencing, including deterrence and the need to protect the community.
Having regard to the totality of Mr Rako’s offending and his previous convictions for similar offending, we consider that the sentence was within the range of the Judge’s sentencing discretion. We are not persuaded that it was manifestly excessive. The appeal must accordingly be dismissed.
Result
The appeal is dismissed.
Solicitors:
Public Defence Service, Manukau for Appellant
Crown Law Office, Wellington for Respondent
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