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Sarah v R

Sarah v R

Case [2013] NZCA 446 27 September 2013

Discount for Guilty Plea

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA336/2013
[2013] NZCA 446

BETWEEN	TIMOTHY JOHN RUSSELL SARAH Appellant
AND	THE QUEEN Respondent

Hearing:	11 September 2013
Court:	Wild, Cooper and Lang JJ
Counsel:	R M Mansfield for Appellant J M Jelas for Respondent
Judgment:	27 September 2013 at 11.30 am

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

On the ground that it is manifestly excessive, Mr Sarah appeals a sentence of four years imprisonment imposed on him by Toogood J in the High Court at Auckland on 3 May 2013.[1] Mr Sarah had pleaded guilty to three charges of supplying the class A controlled drug methamphetamine (one a representative charge), one charge of possession of methamphetamine for supply, and a fifth charge (also representative):
That … between 11 January 2010 and 16 November 2011 at Auckland [he] dishonestly accessed a computer system namely the Police National Intelligence Application and thereby obtained property, namely confidential information.

That last charge was laid pursuant to s 249(1)(a) of the Crimes Act 1961, which carries a maximum sentence of seven years imprisonment. We will call this “the computer crime”.

[1]R v Sarah [2013] NZHC 959 [Sentencing Notes].

The points taken on appeal are that the Judge:

having decided to impose the lead sentence on the computer crime, adopted a starting point which was far too high;
should have imposed sentences cumulatively; and
allowed discounts for mitigating personal factors and the guilty pleas which were too low.

Mr Mansfield put the focus of the appeal firmly on the first of those three points. Indeed, ultimately he accepted that the discounts allowed by the Judge were entirely appropriate.

While accepting that a cumulative approach would have been preferable, and certainly would have been more orthodox, the Crown submits the end sentence was well within range.

Factual background

The computer crime

Mr Sarah had been employed by the New Zealand Police since about 2006 as a non-sworn police prosecutor.
Over the period September 2009 to July 2011 Mr Sarah made over 80 separate search queries on the Police National Intelligence Application (NIA) in respect of various people who were either suspects or of interest in connection with an investigation called Operation Ark. That investigation was into large scale offending involving class A, B and C controlled drugs. Mr Sarah passed the information he obtained to at least two people involved in the drug dealing. One of those people advised one of the suspects that Mr Sarah intended to have a “look around” on a police computer under someone else’s name when that person left their computer on.
Mr Sarah was not involved in, and knew nothing of the operational detail of, Operation Ark. He was actually one of the people who came under scrutiny in that investigation.

The methamphetamine charges

In February 2010 and from July to August 2011 Mr Sarah obtained methamphetamine through Mr Nguyen, one of the two Operation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sarah v R

Details

AGLC: Sarah v R [2013] NZCA 446
Case: [2013] NZCA 446
Decision Date: 27 September 2013 at 11.30 am

CaseChat Overview and Summary

In this case, the appellant, Sarah, is appealing against his sentence of four years imprisonment, which was imposed by Toogood J in the High Court at Auckland. The appeal is based on the argument that the sentence is manifestly excessive. Sarah pleaded guilty to three charges of supplying methamphetamine, one charge of possession of methamphetamine for supply, and one charge of dishonestly accessing a police computer system to obtain confidential information. The appellant's counsel argues that the starting point for the computer crime was too high, that sentences should have been imposed cumulatively, and that discounts for mitigating personal factors and guilty pleas were too low. The Court of Appeal dismissed the appeal, finding that the sentence was not manifestly excessive.

The Court of Appeal considered the arguments presented by the appellant's counsel, focusing primarily on the starting point for the computer crime. The Court found that the appellant's reliance on English cases was misplaced, as each country has its own sentencing policies. The Court considered the more comparable case of R v Gellion, which involved a serving police officer passing intelligence information to an active criminal. The Court found that the appropriate starting point for the computer crime was three and a half years imprisonment, reflecting the seriousness of the offending, but not being the most serious of its type. The Court also found the appropriate starting point for the methamphetamine offending to be two and a half years imprisonment, taking into account the aggravating factors of the appellant's position as a police prosecutor and the number of transactions involved. The Court considered the discounts allowed by Toogood J for mitigating personal factors and guilty pleas to be appropriate, resulting in an effective end sentence of four years imprisonment.

Orders