Silcock v Police

[2014] NZHC 1515

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000129 [2014] NZHC 1515

BETWEEN

GUY CAMPBELL SILCOCK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 July 2014
Appearances:	M B Mortimer for Appellant A R Longdill for Respondent
Judgment:	1 July 2014

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            M Mortimer, Auckland

SILCOCK v NZ POLICE [2014] NZHC 1515 [1 July 2014]

[1]      On 16 May 2014 Guy Silcock was  sentenced  to imprisonment for three years.1   Judge Roy Wade imposed the sentence in the District Court at North Shore in  relation  to  23  charges  of  either  causing  a  loss  or  obtaining  money  by false pretences.  Mr Silcock appeals against the sentence.

[2]      I take the summary of the offending from the Judge’s sentencing notes.  One set of offending related to Mr Silcock’s activities as a self-employed paving contractor.   He advertised his services in free local newspapers using a variety of different names.   When prospective customers responded to the advertisement by telephoning the number he would turn up at the addresses almost immediately.  Mr Silcock would tell the customers that a substantial contract he had entered had been cancelled just a few days before.  He had workmen standing idle and was prepared to do the work at a very attractive and competitive price and to do it immediately. Having quoted a price and having had it accepted Mr Silcock then sought a down payment of approximately half the total contract price to cover the alleged cost of the purchase of materials.  The down payment was required in cash.  If the customers did not have sufficient cash upon them, as was often the case, Mr Silcock would ask for a cheque to be made out for cash or he would offer to meet the customer or take them to an ATM machine to withdraw the cash.  In some instances Mr Silcock took cash cheques to banks at shopping malls and the like that were open on the weekends to ensure the cash was taken out immediately. Despite a number of promises about the work Mr Silcock failed to attend and complete the work.

[3]      There was also another set of offending in relation to a number of hardware stores situated throughout Auckland.  That offending took place in March 2012.  In those cases, on each occasion, Mr Silcock purchased expensive power tools which were paid for with cheques which he knew would be dishonoured upon presentation. Having obtained the power tools, he then took them to a variety of second-hand and pawn shops and sold them for cash.

[4]      In total the value of the losses occasioned by Mr Silcock’s actions amounted

to $29,765, although in his sentencing notes the Judge refers to the sum of $26,763.

After sentencing  it  was  agreed  that  that  figure  was  incorrect  and  the  order  for reparation was adjusted to reflect the total sum lost of $29,765.

[5]      The first offence was committed between 10 and 14 September 2009;   the second offence between October and November 2010;  the third between 1 and 25

February 2011;  and thereafter there was a spate of offending during March and April

2012 relating to the obtaining equipment from the hardware shops and pawning it and  other  offending  between  February  2012  and  December  2012  of  the  nature initially described above.

[6]      Mr Silcock entered guilty pleas to 13 of the 14 charges of causing loss by deception and the remaining one charge of causing loss by deception was proved at a defended hearing on 22 November 2012 before Judge Sinclair.

[7]      The first charge was laid on 30 May 2011.  It is apparent that after that date and whilst on bail Mr Silcock offended on numerous further occasions.  In fact after the defended hearing on the November 2012, following which he was found guilty, he even offended a further three occasions:   29 November, 1 December and 24

March 2013.

[8]      In sentencing Mr Silcock the Judge took a starting point of three years after referring to a decision of this Court in Simpson v Police.2    He then uplifted that by one year to denounce the fact that a number of the offences were committed whilst Mr Silcock was on bail.  The Judge then noted that Mr Silcock had made substantial reparation of $26,000 and was to pay the balance of $763 (as the Judge understood it at the time), so he gave a reduction of a quarter to bring the sentence back to three

years.  The Judge, however, declined to reduce the sentence further for the claimed remorse and for the guilty pleas to 13 of the charges. The Judge considered the pleas were entered very late and Mr Silcock had in part sought to renege on them at the fixture.

[9]      The appeal against sentence is advanced on the grounds that the sentence of three years is manifestly excessive, primarily because the starting point was too high.

The uplift of one year for offending whilst on bail was excessive and that the Judge failed to give credit for relevant considerations as he was required to do by the Sentencing Act 2002.

[10]     For the Crown Ms Longdill submits that the sentence was within range and was available to the Judge.  The Judge was entitled to uplift the starting point by one year to reflect the substantial offending whilst on bail.  She also submitted the Judge was not required, in the circumstances of this case, to provide a reduction for the guilty pleas.  Nor was he required to take into account the personal circumstances referred to by Ms Mortimer in support of Mr Silcock and particularly there was no need for a credit for remorse in the present case.

[11]     There is no tariff for this type of offending.   In R v Varjan the Court of

Appeal noted that:3

[22]     Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[23]      It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with  investigators,  plea,  remorse  and  personal  circumstances  necessarily must be assessed in each particular case.

[12]     I also note the comments of the Court of Appeal in R v Cole that the amount of money lost or dealt in is not determinative of the seriousness of the offence itself.4

Regard must be had to the need for deterrence especially when breaches of trust are involved or elderly and vulnerable are taken advantage of.

[13]     As noted in Simpson this Court upheld a sentence of three years imposed on three charges of obtaining by deception.  The victim in that case was a vulnerable elderly woman.  The total involved was $12,300.  The Court considered a two and a

half year starting point to be available and uplifted that by six months to reflect Mr

33     R v Varjan CA97/03, 26 June 2013 at [22].

4      R v Cole [2001] 2 NZLR 139.

Simpson’s propensity for such dishonesty offending.  He had a substantial and bad previous record.

[14]     I have also had regard to the cases of Lester v R and Fitzmaurice v Police.5

[15]     In the circumstances of the present case, given that the maximum sentence for some of the offending was seven years, the length of time of the offending between September 2009 and March 2013, the nature of the offending, the numerous victims, the effect on those victims, some of whom were elderly and others who were  disadvantaged  and  were  caused  considerable  stress  and  anguish  by  Mr Silcock’s actions, I am not prepared to say that a starting point of three years for the offending in this case was out of range.

[16]     The Judge was also entitled to impose an uplift to that starting point of three years.  Mr Silcock offended whilst on bail.  Worse than that, as noted, he offended even  after  his  conviction  for  the  same  type  of  offending  and  whilst  awaiting sentence.

[17]     I note Ms Mortimer’s submission that an uplift of one year or in this case 30 per cent is a substantial uplift. Again, however, I am not prepared to say that it is out of line given the length of time that the offending whilst on bail continued, bearing in mind that it was offending of the same nature which he was charged with and, in one case, which he had been convicted of.

[18]     In  my  judgment  the  issue  is  whether  the  Judge  was  correct  to  reject mitigating factors.   I note Ms Longdill’s point that this Court’s role on a sentence appeal is not necessarily to review the process by which the end sentence is achieved but to consider whether the end sentence is within range.

[19]     However, while I accept the force of that point, there are two issues in this case which required further consideration by the Judge and where it might be said the Judge fell into error.  They are the Judge’s refusal to provide for a discount in relation to the guilty pleas that were entered and also the Judge’s failure to take into

account  the  personal  circumstances  of  Mr  Silcock  as  they  were  available  and outlined to the Court.

[20]     From the four year point that the Judge reached he allowed a discount of one year or a quarter for the reparation.  That was entirely appropriate.  In this case there has been effectively 100 per cent reparation paid to the victims of the offending.  Ms Mortimer confirmed today that the balance between the $26,000 already paid and the

$29,765 was available by way of bank cheque made out to the Ministry and was to be paid to the Ministry.

[21]     I return to the issue of the further appropriate reductions.

[22]     In her written submissions Ms Mortimer argued that a further credit should have been given for remorse.  I accept, however, it was open to the Judge to have concluded in the circumstances of this case that Mr Silcock was not genuinely remorseful.  The Judge had the advantage of observing Mr Silcock.  It was open to the Judge to conclude that Mr Silcock’s regret was directed at his personal position and the effect the offending had on him rather than being true remorse or disclosing any empathy with the victims of his offending.  To the extent that Mr Silcock has addressed the harm he has caused his victims by the reparation, he has had a full and substantial credit for that.

[23]     That leaves the two issues I identified.   The first is the issue of the guilty pleas.  Ms Longdill submitted that the Judge was entitled not to make any allowance for the guilty pleas.   However, as the Supreme Court noted in R v Hessell6  guilty pleas are given for policy reasons.   There are advantages to society and to the administration of justice in guilty pleas and it is for that reason that the Court records a discount or reduction for guilty pleas.  In my judgment it will be an extremely rare case where a guilty plea will not lead to some reduction, albeit it may be minor.  This is not one of those cases.  Of the 23 charges faced by Mr Silcock he pleaded guilty to

just over one half of them.

[24]     The guilty pleas were entered, in the main, approximately five months after the charges were laid.  While undoubtedly the Crown may have had a strong case against Mr Silcock I still consider that an allowance in the range of 10 to 15 per cent should have been available for those guilty pleas.  To reflect that only just over a half were pleaded to, that deduction would itself need to be reduced by about a half. Sentencing is not a precise arithmetical exercise.

[25]     There is then the issue of Mr Silcock’s personal circumstances.  Although the Judge referred to the issue of gambling he did not refer to other features of Mr Silcock’s circumstances.   I accept the force of the comments of the Court in Fitzmaurice in relation to it being debateable whether the matters disclosed in that case could support a discount for personal circumstances but each case must be considered in its own circumstances.

[26]     In this case, prior to the present offending Mr Silcock had a very limited criminal record.  He had one conviction in 2007 for a minor theft.  It was dealt with by way of an order to come up for sentence if called upon and a payment of $515 reparation. The only other matter was a wilful trespass.

[27]     In the circumstances it is difficult to understand why someone such as Mr Silcock would have offended in the way he has. The explanation proffered for that is his personal circumstances as explained in a counsellor’s letter.   The counsellor refers to Mr Silcock suffering from depression and anxiety for some time, noting also that his mother suffered from clinical depression.  The counsellor’s letter, which was available to the Judge, confirmed the tragic circumstances of his mother’s death as does the coroner’s report.  I note that his mother’s death was in early 2009, shortly before this offending commenced later in 2009.

[28]     I am not suggesting for a moment that it excuses the offending but it does perhaps provide some background to the reasons why the offending occurred.  As noted, the counsellor has recorded that Mr Silcock suffered from depression and anxiety which undoubtedly would have been exacerbated by the circumstances of his mother’s  tragic  death.     Some  allowance  should  have  been  made  for  that  in accordance with s 9(4) of the Sentencing Act.

[29]     Standing back and looking at the matter overall I am satisfied that the failure of the Judge to take into account those personal circumstances or to at least refer to them and to provide any discount at all for a guilty plea were errors.  The Judge fell into error in failing to take those factors into account or, in the case of the guilty plea, providing a reduction.

[30]     The sentence requires adjustment.  An adjustment of however two to three months in each instance for the personal circumstances and guilty plea would be in my judgment the most that could be available to Mr Silcock.

Result

[31]     I regard the difference between three years and two years, six months to be substantial enough so as not to be regarded as tinkering in the circumstances.

[32]     The result is that the appeal is allowed to the extent that the sentence of three years imprisonment is quashed and set aside.  It is replaced with a sentence of two years, six months imprisonment.

[33]     I structure the sentence the same way the Judge did.  Those offences carrying a seven year maximum term are reflected by a sentence of two years, six months imprisonment  concurrent  with  the  sentences  of  six  months  or  three  months  in

accordance with the provisions of the Crimes Act in relation to the other offending.

Venning J