Simpson v The Queen

[2005] NZCA 131

IN THE COURT OF APPEAL OF NEW ZEALAND

CA43/05

THE QUEEN

v

LEE JOHN SIMPSON

Hearing:24 May 2005

Court:William Young, Panckhurst and Doogue JJ

Counsel:W H McMenamin for Appellant

C M Ruane for Crown

Judgment:27 May 2005 

JUDGMENT OF THE COURT

THE APPEAL IS ALLOWED.  THE SENTENCES OF FIVE AND A HALF YEARS IMPRISONMENT IMPOSED IN RELATION TO ALL OFFENCES ARE QUASHED, AND THREE YEAR TERMS ARE SUBSTITUTED.

____________________________________________________________________

REASONS

(Given by Panckhurst J)

INTRODUCTION

[1]       The appellant Simpson was sentenced to five years and six months imprisonment upon multiple charges which arose from the theft of library books throughout New Zealand over a nine year period.  This appeal is against that sentence.

[2]       It raises two particular issues, whether the starting-point of nine years imprisonment which was adopted was appropriate, which in turn involved an issue as to the extent of the loss caused by the offending, and whether the discount of three and a half years allowed from the starting-point was sufficient recognition of the early guilty pleas and for the level of cooperation extended by Mr Simpson to the police.

The course of dishonesty

[3]       Commencing in 1995 Mr Simpson was the central figure in a ring of offenders who systematically stole old and frequently rare books from library collections held by eleven separate institutions.  These were the Auckland, Waikato, Massey, Victoria, Canterbury, Lincoln and Otago University libraries; the Canterbury and Invercargill public libraries; the Canterbury Museum Library and the Christchurch College of Education Library.

[4]       Mr Simpson, who is aged in his mid 40s, gained a knowledge of rare and valuable books through his late father.  In the mid 1990s he commenced stealing valuable books from Canterbury libraries and selling them to second-hand book dealers.  From these beginnings the pattern of offending grew, to eventually involve the eleven complainants and a number of co-offenders who assisted with the removal of books, their storage and disposal. 

[5]       During 2004 the police commenced an investigation into the activities of the group.  Undercover police officers made purchases of books from Mr Simpson in response to notices he had placed on the internet.  Observations were made of the appellant and others removing books from two Canterbury libraries.  Pursuant to an interception warrant, conversations were intercepted which contained evidence of dealings in books, some conversations conducted in code.

[6]       In order to effect the removal of books a range of techniques were employed.  Frequently Mr Simpson went to libraries and removed electronic strips so that books could be carried out of the library without activating alarm systems.  Other techniques included the repositioning of books within the library to facilitate their removal by a co-offender.  And, on some occasions one person would distract library staff while another removed books which had been targeted in advance. In many instances markings were removed from stolen books to conceal their origins, and in some cases signatures purporting to be those of the author were forged in an endeavour to enhance the value of particular books.

[7]       Stolen books were disposed of in a number of ways.  These included sales to second-hand book dealers, sales through overseas auction houses (including in London and San Francisco) and sales effected to dealers and private collectors via the internet.

[8]       On 29 September 2004 the police simultaneously executed search warrants and interviewed members of the group, including Mr Simpson.  After an initial denial of involvement, Mr Simpson extended full cooperation to the authorities.  Progressively he made statements which detailed the circumstances of his offending to the best of his recollection.  Assistance was also provided in relation to the recovery of books.  Mr Simpson surrendered boxes of books and also took police officers to a site where books were stored in the outdoors under the protection of a tarpaulin.

[9]       On 25 November 2004 Mr Simpson entered pleas of guilty to a raft of charges, some specific and some of a representative nature.  The charges included multiple offences of burglary (both by entering with intent and remaining within libraries with intent), conspiracy to commit burglary and to receive stolen property, offences of altering documents with intent, forgery and money laundering.

The sentencing decision

[10]     The appellant was sentenced by Judge Abbott on 21 January 2005, after the Judge had heard and considered submissions made a week earlier.  In very comprehensive sentencing remarks the Judge referred to several aspects of the case.  He noted the methods which were employed over a period of several years in order to steal the books from the various library collections.  Concern was expressed about the extent to which libraries were open to members of the public and were therefore vulnerable to offenders inclined to select and steal valuable books.  The Judge observed that a possible “sad consequence” of the offending was that increased security may become necessary in relation to library collections, with the result that resources which customarily have been freely available to users may become less so.

[11]     With reference to Mr Simpson’s personal circumstances Judge Abbott noted his four previous convictions for offences of dishonesty which he rightly characterised as relevant, but as comprising a “very limited record” of previous offending.  The Judge observed that the motivation for the offending was said to be a long-standing gambling addiction which, in the absence of any challenge to that assertion on behalf of the police, he accepted was the likely root cause of the offending.  However, such addiction was rightly characterised as an explanation, not an excuse.

[12]     With reference to the victim impact statements the Judge commented that a number of themes emerged, including that irreplaceable books had been lost, that increased security precautions may be seen as necessary, that the offending had caused significant expense, both direct and indirect, and considerable inconvenience to the various institutions and their staff.

[13]     Several mitigating features were then noted, being the cooperation and assistance extended to the police, entry of early pleas of guilty and remorse which extended to a public apology on television.  The aggravating features were identified as the duration and extent of the offending, it’s effects upon the victims and that given the nature of certain of the books “part of the cultural heritage of this country” had been lost.

[14]     The Judge next noted the difficulty involved in finding any comparable cases because the offending was of such a unique nature.  Reference was made to two cases which were of limited assistance.  The first was R v McEwan CA459/00 8 March 1991 in which a sentence of seven and a half years imprisonment for the burglary of relics recovered from sunken shipwrecks (including jewellery and gold sovereigns), was upheld.  The offender was both on parole and in a position of trust as an employee of the complainant, at the relevant time.  The second case, described by the Judge as at the other end of the scale, was Police v Sanders HC CHCH AP235/91 14 October 1991 in which Holland J imposed a sentence of 18 months imprisonment upon nine charges of theft of documents from the Alexander Turnbull Library and the National Archives.  Understandably the Judge viewed both cases as relevant, but not of “much assistance”.

[15]     He continued:

[79]   … in my view the appropriate starting point sentence for this offending, when viewed in its totality, is imprisonment for nine years.

[80]   In general terms, an early guilty plea should result in an allowance or a discount of up to one-third of the indicated starting point sentence.  However, in the present case a slightly more generous allowance should be made in that respect, in particular to recognise the assistance which you gave to the Police in recovering some of the stolen books.

[81]   In my view the appropriate total allowance for your guilty pleas, your expressions of remorse, and your co-operation with the Police should be of three and a half years.

Thereby the effective sentence of five years six months imprisonment was arrived at and imposed upon all charges on a concurrent basis.

[16]     Finally the Judge noted that a minimum sentence of imprisonment was not sought and that it would be pointless to impose a sentence of reparation because there was no prospect of its being met.

The grounds of appeal

[17]     Mr McMenamin advanced two main grounds in support of the appeal.  With reference to cases involving what might be termed high level white collar crime, counsel argued that the starting-point of nine years imprisonment adopted by the Judge was clearly excessive.  In support of this submission Mr McMenamin observed that a particular difficulty of this case was the absence of any reliable evidence as to the number, and value, of the books stolen.  This absence had been supplanted, in Mr McMenamin’s submission, by the Judge’s adoption of Crown counsel’s submission that the offending involved “the loss of part of the cultural heritage of this country” in order to arrive at the starting-point of nine years imprisonment.  The second argument was that the allowance made for the pleas of guilty, remorse, and the assistance afforded to the police was inadequate, particularly having regard to the extent to which missing books were recovered through Mr Simpson’s assistance.

[18]     Mr Ruane accepted that the case represented a difficult sentencing exercise.  Counsel acknowledged that the starting-point of nine years imprisonment which was adopted by the Judge was high.  However, he characterised the reduction from that starting-point of three and a half years as a “more generous allowance” than early guilty pleas and assistance to the police would normally warrant.  The submission was repeated that the offending was unique because it involved the loss of rare and irreplaceable books, representing a loss of part of the cultural heritage of New Zealand.

Was the starting-point appropriate?

[19]     We acknowledge at the outset that this was a uniquely difficult sentencing decision.  As the two cases to which Judge Abbott referred indicate, there was a near absence of cases capable of providing any meaningful guidance.

[20]     A further complication lay in the absence of factual evidence as to the actual extent of the offending.  The summary of facts prepared by the police fairly disclosed that in many cases the complainant libraries only became aware that particular books were missing from their collections, as a result of the police investigation.  The inquiry resulted in stock-takes being undertaken by the various libraries, which disclosed that large numbers of books were missing from the various collections.  For example the Otago University Library concluded that 799 books were missing, of which about 7% were listed in a schedule annexed to the summary of facts because Mr Simpson acknowledged his involvement in their removal from the collection.  We infer that a similar pattern applied in relation to the other complainants.

[21]     At page 18, the summary recorded:

Police believe that the 1640 books recovered during this investigation represent only a small percentage of the material stolen by the defendants over the periods specified in the representative charges.

Subsequent to the sentencing in January, police inquiries have continued, and we were supplied with an updating letter from the officer in charge of the investigation which confirmed that in excess of 1700 books have now been recovered.  With reference to the value of the stolen books the letter records that “I am unable to give you a finite figure as currently we do not have all of the book values”.  As a consequence both Judge Abbott, and this Court, are faced with incomplete information as to both what was taken and the extent of the monetary loss.

[22]     When we pressed Mr Ruane to provide a best estimate as to the extent of the loss he was inclined to indicate a figure up to about $1m.  Our impression is that the Judge was forced to proceed on the basis of even less concrete information than we have.  Certainly, the summary of facts did not attempt to quantify the loss. 

[23]     In the absence of authorities of more direct relevance we think Mr McMenamin was correct to turn to cases of white collar crime as affording the best indication of the appropriate sentencing level.  Examples of such cases abound, but we shall refer to only two by way of example.  The first is R v Rose [1990] 2 NZLR 552 (CA). This offender defrauded the Dairy Board causing indirect losses of several million dollars. He pleaded guilty and was entirely cooperative with the authorities. The offending extended over a five year period. A sentence of 18 months imprisonment was imposed, but was the subject of a Solicitor General appeal. The sentence was increased to four years imprisonment which term was arrived at after reference to a number of previous cases including R v Sutton (1989) 4 CRNZ 667 (CA) and R v Dickson CA118/89 28 February 1990. 

[24]     Although a relevant precedent, the case suffers on account of two features.  First, being a Solicitor General appeal the lift in the sentence imposed by this Court was not to the point which might otherwise have been justified.  Second, the sentencing environment has changed in that under the Criminal Justice Act 1985 property offences (in contradistinction to offences involving violence), were not to be met with prison sentences unless there were special circumstances.  The same cannot be said of the Sentencing Act 2002.  On the other hand Rose is valuable for the fact that assistance to the authorities was accepted as a factor requiring tangible recognition.

[25]     A more recent case and one which was decided in the current environment is R v Coburn CA133/03 30 September 2003.  The appellant was sentenced to five and a half years imprisonment in relation to a total fraud involving $1.78m (of which $360,000 was repaid).  In that instance a starting-point of eight years was taken with reference to R v Renshaw (1992) 8 CRNZ 695 (HC).  Mr Coburn was a legal practitioner.  This Court held that eight years was an appropriate starting-point, that the deduction of two and a half years was not insufficient (absent remorse and cooperation) and, accordingly, that the end sentence of five and a half years imprisonment was within range.

[26]     We are in no doubt that the starting-point of nine years adopted in this case was clearly excessive.  In our view the ceiling for this offending was no more than six years imprisonment.  Obviously, Mr Simpson is not a professional person and was not in a position of trust as are employees and solicitors, for example, who become involved in large scale defalcations.  In addition there is the difficult problem of arriving at a firm evaluation of the scale of the offending.  The appellant and his co-offenders cannot be held responsible for all of the losses of the libraries involved.  While it is apparent from the victim impact statements that significant indirect costs have been incurred by the various complainants, no global figure is available and, moreover, it has not been possible to date to place a value on the lost books.  In terms of s 24(3) of the Sentencing Act there is an onus upon the prosecution to establish aggravating features beyond reasonable doubt.  That obligation poses a real problem in the present circumstances.  To that extent Mr Simpson may be a little fortunate.

Was the reduction sufficient?

[27]     Plainly a reduction of three and a half years from a nine year starting point (about 38%), is significant.  That level of reduction adequately meets the pleas of guilty, but whether it is sufficient to also capture the element of the assistance afforded to the police by Mr Simpson is another issue.

[28]     With reference to this aspect the Judge said that early guilty pleas could warrant a reduction of up to one-third of the indicated starting-point.  We agree.  He continued that “a slightly more generous allowance” was required to recognise the assistance provided by Mr Simpson in recovering “some of the stolen books”. 

[29]     We are not satisfied that this description meets the situation.  The letter from the officer in charge of the inquiry with which we have been provided confirms that Mr Simpson also identified the titles of stolen books and the libraries from which they were taken, sometimes when the fact of their disappearance was unknown.  He also assisted the police considerably in relation to their inquiries relevant to the methods which were employed and the involvement of others.  It is not appropriate that we spell out the details of his cooperation in the latter respect.

[30]     Against this background we are satisfied that the level of reduction allowed by the Judge was insufficient.  This is a case where an allowance at, or near to, the maximum for cooperation and assistance (coupled with guilty pleas) is appropriate. 

[31]     Guidance as to the extent of the discount is to be found in Halls Sentencing at I 7.2.  The decided cases stress the need to closely examine the seriousness of the offending itself, and the extent and impact of the cooperation extended by the offender.  It follows there is no set percentage discount which is appropriate, since a fact specific evaluation is required.  In some instances discounts as high as 50%, or even more, have been allowed where an offender both pleaded guilty and extended all possible cooperation in circumstances involving personal risk. 

[32]     In relation to so-called white collar crime the focus is frequently upon assistance in untangling the knot in the victim’s affairs created as a result of the fraud.  This Court said in R v Coker CA246/90 15 November 1990, that it is “important that the courts send a clear message that offenders in this area who are prepared to acknowledge their guilt at an early stage, and who give worthwhile assistance in the resolution of the problems they have created, can expect to see that conduct adequately recognised in sentencing”.

[33]     It is apparent that in this case Mr Simpson gave assistance in relation to the recovery of stolen books, the identification of titles of books which had been taken and disposed of without the knowledge of the particular libraries and that he has played an active part with reference to other offenders.  In our view this high level of cooperation justifies a reduction of three years (50%) from the six year starting-point.

Result

[34]     The appeal is allowed.  The sentences of five and a half years imprisonment imposed in relation to all offences are quashed, and three year terms are substituted.

Solicitors:
Crown Solicitor, Christchurch