Sarah v R
[2013] NZCA 446
•27 September 2013 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA336/2013 [2013] NZCA 446 |
| BETWEEN | TIMOTHY JOHN RUSSELL SARAH |
| AND | THE QUEEN |
| Hearing: | 11 September 2013 |
Court: | Wild, Cooper and Lang JJ |
Counsel: | R M Mansfield for Appellant |
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 Ark suspects to whom he provided information. He on-sold this at street level on at least nine separate occasions. A typical transaction involved Mr Sarah receiving a text message requesting a purchase of methamphetamine, arranging to meet the person at a discreet location and supplying methamphetamine in varying quantities ranging from one to four grams. Some of these supply transactions occurred while Mr Sarah was working as a police prosecutor.
The total amount of methamphetamine Mr Sarah supplied was around 22 grams, but it was heavily cut, Mr Mansfield submitted to less than five per cent purity. If that is correct then, converted to the 60 per cent purity referred to by this Court in R v Fatu, Mr Sarah supplied approximately 1.8 grams.[2]
[2]R v Fatu [2006] 2 NZLR 72 (CA) at [30]. The mathematics is 22 grams @ 5% purity = 1.1 grams pure ÷ .6 = 1.83 grams @ 60% purity.
On 16 November 2011 the police searched both Mr Sarah’s home and car. They found ziplock bags containing methamphetamine or methamphetamine residue. Mr Sarah was arrested following this search. He pleaded guilty to all the charges in March 2013.
The sentence under appeal
Toogood J rightly viewed Mr Sarah’s offending as serious. He observed that the bare statement of the charges:[3]
… does not adequately reflect the disgraceful nature of the behaviour which brought you here, or the true criminality of your offending. … What makes your crimes more reprehensible is that you are a qualified lawyer, you were an admitted member of the legal profession and throughout the period of your offending you were employed in Auckland by the New Zealand Police as a non-sworn Police prosecutor.
[3]At [3].
A little later he commented that:[4]
… the admitted facts reveal that after doing checks on several individuals you passed confidential and sensitive information on to the man who was supplying methamphetamine to you, intending it to be used for the benefit of others. Those actions were correspondingly disadvantageous to your Police colleagues and the public interest.
[4]At [8].
The Judge rejected the suggestion that Mr Sarah was simply naive and had acted out of a misguided loyalty to a friend. He stated:[5]
… I have no doubt you fully appreciated the significance of what you were doing and that a gross breach of your duty was involved in warning various associates of impending Police action.
[5]At [9].
Toogood J noted that both counsel had suggested it might be appropriate to impose cumulative sentences for the two types of offending, though ensuring that the effective end sentence properly reflected the totality of Mr Sarah’s offending. The Judge said that he had decided to structure his sentence “in a somewhat different way to that put forward by [counsel]”.[6]
[6]At [27].
Although it carried a maximum sentence of seven years imprisonment, as opposed to life imprisonment for the methamphetamine dealing, the Judge took the computer crime as the lead offence. He expressed the view that Mr Sarah’s culpability for that offending was “at the higher end of the range”.[7]
[7]At [27].
In fixing a sentencing starting point the Judge referred to this Court’s decision in R v Hayes, the first time this Court had considered sentencing levels since the computer based offences were introduced in 2003.[8] He then referred to other comparable sentencing decisions, including this Court’s decision in R v Varjan.[9]
[8]R v Hayes (2006) 23 CRNZ 547 (CA).
[9]R v Varjan CA97/03, 26 June 2003.
Next the Judge listed four factors which he considered increased Mr Sarah’s culpability:
the gross breach of trust and duty the offending involved;
the scale and nature of the offending – accessing the police computer database on over 80 occasions over a lengthy period of time, and passing on information which was “highly sensitive and confidential”;[10]
the deliberate and calculated nature of the offending; and
the indirect harm resulting from the offending, which the Judge considered “should not be underestimated”.[11] The Judge observed that public policy demanded that the public must have absolute confidence that those who gather and store confidential information will observe the highest standards of integrity in using the information. Mr Sarah’s offending “seriously undermines that confidence” justifying imposition of a “condign” sentence.[12]
[10]At [33].
[11]At [34].
[12]At [35].
Factoring all that in the Judge took a starting point “of not less than five and a half years imprisonment” on the computer crime. When measured against the maximum penalty of seven years imprisonment he acknowledged that was high, but expressed the view it “appropriately reflects the high degree of culpability for this offending”.[13]
[13]At [37].
Turning to the methamphetamine offending, Toogood J considered “the initial starting point under R v Fatu would be imprisonment for around three years”.[14] He acknowledged this was discrete offending, serious in itself. Indeed he observed:[15]
… There is no doubt that selling illicit drugs during your lunch break, while carrying the important responsibility of prosecuting others for the same thing, is breathtaking in its hypocrisy and cynicism.
[14]At [39].
[15]Sentencing Notes, above n 1, at [40].
However, the Judge thought it “better to treat your drug dealing as part of the background to, and an aggravating factor in, the more serious offending”.[16] He therefore marked the drug offending by uplifting his initial sentencing starting point of five and a half years for the computer crime by one year to reflect Mr Sarah’s overall culpability. That produced an overall uplifted starting point of six and a half years imprisonment.
[16]At [40].
From that the Judge allowed “what may be an overly-generous 18 months, or around 23 per cent” to reflect mitigating personal factors.[17] That reduced the sentence to five years imprisonment.
[17]At [44].
Finally, the Judge allowed a further discount of 20 per cent – the amount “realistically suggested by Mr Mansfield” – to reflect Mr Sarah’s guilty pleas, which had not been entered at the earliest opportunity.
Submissions for Mr Sarah on appeal
The focus of Mr Mansfield’s submissions for the appellant was that the five and a half year starting point adopted by Toogood J for the computer crime was manifestly excessive. Mr Mansfield contended it should have been 18 months to two years. At the very most two and a half years.
Mr Mansfield based this submission on a review of sentencing decisions of the courts of the United Kingdom and Australia for computer offending. He readily accepted he had not referred those decisions to Toogood J. We consider those decisions in [27]–[33] below. Mr Mansfield submitted that R v Stubbs was the most comparable.[18] That involved the substitution by the Criminal Division of the English Court of Appeal of a sentence of two and a half years imprisonment.
[18]R v Stubbs [2011] 2 Cr App R (S) 113 (CA).
Mr Mansfield then argued that the methamphetamine offending justified an uplift of no more than two years imprisonment. That took the total combined sentencing starting point to four and a half years imprisonment.
As we mentioned in [2] above, Mr Mansfield ultimately did not contest the discounts allowed by the Judge. Applying those discounts to the minimum starting point plus the uplift contended for by Mr Mansfield reduced the end sentence to one of “no more than one year and 10 months imprisonment”. Allowing for the time Mr Sarah had already spent in prison, Mr Mansfield somewhat optimistically contended the sentence could be commuted to one of three months home detention.
If the maximum sentencing starting points allowed by Mr Mansfield are adopted, and the discounts allowed by the Judge applied to the resulting combined sentencing starting point, then the effective end sentence would be two and a half years imprisonment.[19]
Our analysis
Starting point for the computer crime
[19]The arithmetic is 2½ years + 2 years = 4½ years less 23% or 12½ months less 20% or 11 months = 30½ months or 2½ years.
We view Mr Mansfield’s heavy reliance on the sentences imposed in English cases as misplaced. Because each country has its own sentencing policies, this Court has several times made the point that reference to specific sentencing levels in other jurisdictions is unusual and not often helpful. Cooke P observed in R v Clark that: “New Zealand has its own penal and sentencing policy and overseas levels are of course not automatically applicable here”.[20] More recently, in R v Mako, the Court stated:[21]
The actual sentencing levels adopted in Australia, the United Kingdom and Canada must be looked at in light of the different maximum sentences and the different systems of administration of custodial sentences. …
[20]R v Clark [1987] 1 NZLR 380 (CA) at 383.
[21]R v Mako [2000] 2 NZLR 170 (CA) at [32]. Adopted in R v Taueki [2005] 3 NZLR 372 (CA) at [18].
Further, the crimes charged in the English cases Mr Mansfield referred to were a mixture of misconduct in public office,[22] and securing unauthorised access to computer material,[23] contrary to s 1(3) of the English Computer Misuse Act 1990 (UK). Our understanding is that the maximum sentences for those crimes are, respectively, life imprisonment and two years imprisonment. It is obvious from the description of the first crime and its maximum sentence that it is much broader in compass than the computer crime Mr Sarah pleaded guilty to.
[22]Attorney General’s Reference No 1 of 2007 (Hardy) [2007] 2 Cr App R (S) 86 (CA); R v Stubbs, above n 18; R v Kassim [2006] 1 Cr App R (S) 4 (CA); R v Gellion [2006] 2 Cr App R (S) 69 (CA); R v Keyte [1998] 2 Cr App R (S) 165 (CA).
[23]R v Nichols [2013] 2 Cr App R (S) 10 (CA).
If any parallel is to be drawn with the UK authorities, we consider it is with R v Gellion and not Stubbs as submitted by Mr Mansfield.
Ms Stubbs was 32 and “effectively of good character”. She was a civilian employee of the Gloucestershire Constabulary. Using the police intelligence systems, she made a substantial number of unauthorised checks on individuals and locations over a period of several months. Although she denied she had done that with the intention of passing that information to others outside the police, she did pass on information on two occasions. On both occasions she passed the information to her co-accused and domestic partner, Mr Arnold. On the first occasion it was information on a business rival of Mr Arnold’s father, on the second occasion information on an individual called Mr White. On that second occasion provision of the information was to be in return for some “freebies” (accepted to be cocaine). However the prosecution could not prove what Mr Arnold had done with the information on Mr White.
The fact that Mr Sarah passed information to people he knew were criminals elevates his case well above the seriousness of Stubbs. We consider that is reflected in the starting point of two and a half years imprisonment substituted by the Criminal Division of the English Court of Appeal.
Gellion was an unsuccessful appeal against an effective sentence of four years imprisonment for misconduct in public office (excluding the sentence of three months imprisonment for possession of ammunition). Mr Gellion was a serving police officer. He was the intelligence officer at a police station. On two occasions he passed intelligence information to a man who to his knowledge was an active criminal. On the first occasion that resulted in the destruction of evidence (a Fiat motorcar) which had been involved in an armed robbery in which $7,000 cash had been stolen. The Court noted counsel’s submission that the Judge’s starting point must have been in excess of six years. The end sentences under appeal for the computer crimes were four years and two years imprisonment imposed concurrently. There was an additional sentence of three months imprisonment for possession of ammunition. In dismissing the appeal against those sentences the Court observed:[24]
This sentence was undoubtedly severe, but the sentencing judge was entitled to pass a deterrent sentence to mark the applicant’s betrayal of the standards to be expected of an officer entrusted, as he was in the course of his work, with vitally important information in the detection and prevention of crime. He betrayed that trust not once, but twice. That cannot, in our judgment, be overlooked.
[24]Gellion, above, n 22, at [14].
While we accept that the offending in Gellion was more serious than in the present appeal, it was offending far more comparable than that in Stubbs.
Although Toogood J referred to this Court’s decision in Hayes, we think the Judge misled himself by referring to the Law Commission’s recommendation that the starting point for the computer crime to which Mr Sarah pleaded guilty be set at 10 years imprisonment because of the potential for a person gaining unauthorised access to a law enforcement agency computer system to cause “major damage … through a careless or reckless act”.[25] Parliament did not accept the Commission’s recommendation. The descriptions careless and reckless do not fit Mr Sarah’s offending, and nor did his offending cause major damage.
[25]Law Commission Computer Misuse (NZLC R54, 1999) at [94].
Ms Jelas pointed out that this Court in Hayes had observed:
[77] Applying the principles of functional equivalence and technological neutrality, the approach to sentencing for computer based crime should start by reference to penalties that would have been imposed had the crime been committed through paper based means.
Ms Jelas therefore submitted that the Court should take into account its decision in R v Palmer, the leading authority on sentencing for corrupt use of information, a crime under s 105A of the Crimes Act.[26] Mr Palmer had misused information acquired as an employee of the Government Superannuation Fund to make a profit of almost $270,000 trading futures contracts for New Zealand Government stock. The Court observed:[27]
… We consider that a starting point in this case should have been in the range of three to four years and that any resulting net sentence should not have been less than two and a half years.
[26]R v Palmer CA332/03, 31 March 2004.
[27]At [47].
We agree with counsel that the more orthodox, and we think preferable, sentencing approach would have been to impose discrete, cumulative sentences for the computer crime and the methamphetamine offending. Adopting that approach, and drawing together all the considerations mentioned above, we consider the appropriate starting point for the computer crime was three and a half years imprisonment. That is half the available maximum sentence. It appropriately reflects that this was serious offending, but a good way from being the most serious offending of its type. It was serious because it was committed by a police prosecutor on numerous occasions over a lengthy period, and involved passing confidential and sensitive police information to a person Mr Sarah knew was an active criminal.
Starting point for the methamphetamine offending
In our view the appropriate starting point for the methamphetamine offending was two and a half years imprisonment. This was low (street) level commercial offending involving less than five grams of methamphetamine (at 60 per cent purity) and was therefore squarely in Fatu band one, which calls for sentencing starting points in the range two to four years imprisonment. But it was committed by a serving police prosecutor, and involved a number of transactions, first in February 2010, and then during July and August 2011. Although the purity of the methamphetamine dealt was low, the total quantity was significant. Those are all aggravating factors.
As to the first of those aggravating factors, in sentencing Mr Sarah Toogood J observed:[28]
… There is no doubt that selling illicit drugs during your lunch break, while carrying the important responsibility of prosecuting others for the same thing, is breathtaking in its hypocrisy and cynicism.
That observation is well justified. We expressly reject Mr Mansfield’s submission that the fact that Mr Sarah was dealing outside his work hours with the police meant that his position as a police prosecutor was not an aggravating factor.
The sentencing discounts
[28]Sentencing Notes, above n 1, at [40].
Those two discrete starting points total to six years imprisonment. We view the 23 per cent discount allowed by Toogood J for mitigating personal factors as considerably too generous. The Judge essentially acknowledged that himself. As to the computer crime, as the English Court of Appeal observed in Hardy: “The personal mitigation that existed in this case is likely to exist in any case of this character”.[29] Ms Jelas referred to the Judge’s observation to Mr Sarah:[30]
You have tried to downplay the seriousness of this offending by claiming that most of the checks you carried out were out of mere curiosity and that you had no dishonest intent, on those occasions at least.
[29]Hardy, above n 22, at [25].
[30]Sentencing Notes, above n 1, at [8].
In the light of that we agree with Ms Jelas that the appellant was perhaps fortunate to have received any discount for remorse.
Turning to the methamphetamine offending, the occasions on which this Court has observed that mitigating personal factors count for little when the Court is sentencing for commercial methamphetamine dealing are legion. The reason is simply that deterrence and denunciation must be the primary sentencing objectives.
We think the appropriate discounts were 10 months (approximately 14 per cent) for mitigating personal factors and 14 months (approximately 20 per cent) for the guilty pleas. That produces an effective end sentence of four years imprisonment, exactly the sentence arrived at by Toogood J.
If the Judge’s sentencing approach outlined at [13]–[19] is adopted, we think the appropriate starting point for the computer crime was four years imprisonment, and the appropriate uplift to reflect the overall culpability, in particular the additional methamphetamine offending, two years imprisonment. So the total starting point would again be six years, with the same discounts.
On either approach, we do not consider the sentence under appeal is manifestly excessive. Indeed, on either of the two approaches we have outlined, we consider it entirely appropriate.
Result
The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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