Terry v Police HC Auckland CRI-2011-404-217

[2011] NZHC 1116

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-217

DION PAUL TERRY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 September 2011

Counsel:         E Bruen for Appellant

K Francis for Respondent

Judgment:      7 September 2011 at 4:30 PM

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 7 September 2011 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

EJ Bruen, Auckland:  [email protected]

K Francis, Meredith Connell, Auckland:  [email protected]

TERRY V NEW ZEALAND POLICE HC AK CRI-2011-404-217 7 September 2011

[1]      Dion  Paul  Terry  appeals  against  a  sentence  of  19 months‟ imprisonment imposed in the District Court at Manukau following his conviction on two charges of theft and one charge of using a document with intent to obtain a pecuniary advantage dishonestly.

The circumstances of the offending

[2]      The  circumstances  of  the  offending  were  that  the  appellant  had  been employed in a business which employs mentally and physically disabled persons.  In his role as a team leader, he had befriended several of the employees including the intellectually  disabled  complainants.   Although  the  appellant‟s employment  was terminated in August 2008, he continued to meet with the complainants socially after hours. They came to trust him and considered him a friend.

[3]      The appellant offered to assist one of the complainants, P, by paying his power bills and other accounts.   In order to facilitate this assistance, the appellant was given P‟s Eftpos card so that funds could be withdrawn from P‟s bank account.

[4]      Between  February 2009  and  July 2010,  the  appellant  made  a  number  of withdrawals and purchases using P‟s Eftpos card, without P‟s knowledge or consent and entirely for the appellant‟s own benefit.  The value of the money obtained in this dishonest way totalled $9,982.

[5]      In March 2009, the appellant persuaded P to allow the appellant to set up a telephone banking facility for P, ostensibly to make it easier for P to pay bills.  In April 2009, the appellant dishonestly made five banking transfers from P‟s account into his own of a total amount of $770.

[6]      The appellant also assisted the second complainant, G, to set up telephone banking facilities, and in April 2009 made five dishonest transfers of funds from G‟s account to his own totalling $1,800.   Following a complaint about this behaviour from G‟s caregiver, the appellant allowed the sum of $641.30 to be returned to G‟s

account and signed permission for the bank to take $120 worth of bonus bonds in his name as another part-payment towards the $1,800 which had been stolen.

The approach taken by the District Court Judge

[7]      The District Court Judge quite properly emphasised the vulnerability of the complainants and the gross abuse of trust involved in the offending.  The Judge also referred to the degree of pre-meditation involved and described the offending as “very mean spirited and, quite frankly, disgraceful in the way ... (the appellant) had preyed on that part of the community that needs protection and support of the rest of us.”   The Judge then referred to the appellant‟s long list of previous convictions, including  approximately  22  which  related  to  offences  of  dishonesty,  as  an aggravating factor.  He noted that the appellant‟s offending had begun in 1987 and that  right  through  to  2009  there  were  “fairly  frequent  appearances  before  the Courts”, the list of previous convictions running to some 12 pages.

[8]      The  Judge  noted  that  the  appellant  was  aged  41  and  recorded  that  the appellant had been reported as saying that he was “a massive let down for his family”.   The Judge accepted that the appellant was remorseful and that after the offending had been detected he had come to regret committing the offences against the particular complainants.   The Judge observed, however, that although the appellant  was  well  aware of the vulnerability of the complainants,  that  did  not prevent him from preying on them over a period of time.

[9]      The Judge concluded that, having regard to the need to hold the appellant accountable for the harm to the victims, to instil in the appellant a sense of responsibility, to denounce his conduct, to sentence him in a way which might deter others, and also to protect the community, a sentence of imprisonment was justified.[1]

The Judge then took a starting point, taking into account the maximum available penalty of seven years‟ imprisonment for the theft charges, and looking at the totality of the offending, of 10 months‟ imprisonment.   He then uplifted the sentence by

six months because of the appellant‟s previous convictions and added a further uplift

of six months to take account of the gross abuse of trust, the vulnerability of the victims, and the pre-mediation attached to the offending.

[1] See Sentencing Act 2002, s 8.

[10]     Of the total of 22 months‟ imprisonment produced by those considerations, the Judge then allowed a three month (13.6 percent) discount for the plea of guilty. The Judge accepted that the appellant was remorseful but did not think the degree of remorse, having regard to the appellant‟s previous history and the pre-meditated nature of the offending, warranted any further discount, leaving an end sentence of

19 months‟ imprisonment.    The  Judge  imposed  concurrent  terms  of  19 months‟ imprisonment on the charge of using a document and one of the theft charges, and a concurrent penalty of six months‟ imprisonment on the other theft charge.

Submissions on behalf of the appellant

[11]     Ms Bruen  has  taken  a  realistic  approach  to  the  appeal,  while  arguing earnestly for a finding that the sentence imposed was manifestly excessive.   The recommendation in the pre-sentence report, which was not referred to by the District Court Judge, was for a community-based sentence, and there is evidence of hardship being suffered by the appellant‟s family as a result of his imprisonment, including comments made in a letter written by the appellant to which I have had regard. Nevertheless, Ms Bruen accepts that a custodial sentence could not be said to be inappropriate.

[12]     She argues, however, that the Judge erred in imposing an excessive uplift for the appellant‟s previous offending which, she correctly points out, does not include any dishonesty offences after 1996 when the appellant was much younger and was sentenced to two-and-a-half years‟ imprisonment for aggravated robbery.  She also submitted that there was an element of double-counting in the starting point taken by the Judge and the uplift for previous offending.

[13]     Further, Ms Bruen argued that the reduction of three months allowed for the appellant‟s guilty plea and expressions of remorse was inadequate.   She said that insufficient credit had been allowed to the appellant for his offer to make amends and for the extent to which there had been reimbursement of some of the money

stolen.  She was critical of the Judge‟s failure to consider the pre-sentence report and submitted that, looking at the matter overall, the sentence was too high.

[14]     In making that submission, Ms Bruen referred me to the judgment of the

Court of Appeal in R v Singh,[2]  where a sentence of two years‟ imprisonment on

[2] R v Singh (2003) 20 CRNZ 158.

13 counts of credit card fraud by an appellant who had a substantial list of previous convictions for fraud and was described as a „hardened recidivist offender‟ was regarded  as  manifestly  excessive,  and  reduced  to  a  sentence  of  18 months‟ imprisonment.   She referred also to R v Harvey,[3]  in which the Court of Appeal upheld a sentence of two years three months‟ imprisonment for offending in which the caregiver of a tetraplegic stole $135,000 over an 11 month period, and a one-

[3] R v Harvey CA349/00, 7 December 2000.

quarter discount for guilty pleas was given.

[15]     In relation to the submission that a 25 percent discount for the appellant‟s guilty plea in the present case should have been allowed, Ms Bruen submitted that although the guilty plea had not been entered on the first appearance, there were technical reasons for the slight delay related to the amount of money said to have been taken, and to the withdrawal of two of the original charges laid.

[16]     Ms Bruen realistically accepted that, even if it could be said that the Judge might have erred in some aspects of his approach to the sentencing in this case, this Court was required in the end to consider the overall result in a broad way and determine whether it was manifestly excessive.

Discussion

[17]     While the Courts have refrained from taking a tariff-based approach to theft and fraud cases, preferring to consider each case on the basis of its particular facts, I am mindful of the need for consistency in the approach to sentencing.[4]     I have accordingly had regard to the cases referred to by Ms Bruen, and also to those referred to in the helpful submissions I received from Mr Francis on behalf of the

[4] Sentencing Act 2002, s 8(e).

respondent.

[18]     I do not regard R v Singh as an appropriate comparator with this case, in part because the amount of money ($3,000) was less than that involved in the present case, but principally because that case did not involve the mean-spirited exploitation of vulnerable persons by someone in a position of trust which characterises the present appellant‟s offending.

[19]     There  is  nothing  in  the  present  case  which  can  be  said  to  mitigate  the offending itself.   I accept Mr Francis‟s submission that the repayment of a small amount of the money stolen from G resulted from a complaint by a third person and the intervention of the Bank, without which it might be inferred the offending against that complainant would have continued.   It is to the appellant‟s discredit that he continued  to  defraud  P for  over  a  year  after  being  required  to  account  for  his mishandling of G‟s account.

[20]     Although  the  reference  to  the  need  to  protect  the  community  from  the appellant may be somewhat misplaced in this case, I agree with the District Court Judge that cases of this kind, which can be difficult to detect, call for an element of deterrence.[5]   For that reason, and because of the gross abuse of trust involved in the offending, the recommendation in the pre-sentence report for a community based sentence represented a misplaced consideration of s 16 Sentencing Act 2002 and was

[5] Cole v Police [2001] 2 NZLR 139.

wholly unrealistic.  The recommendation focused entirely on the circumstances of the offender rather than having any regard to the interests of the complainants and the community.  In my view, the District Court Judge was entitled to disregard it.

[21]     I have had regard to the Court of Appeal‟s judgment in Harvey which, in my view, has comparable elements to this case.   While the Court did not refer to the appropriate  starting  point,  it  considered  it  to  be  not  even  arguable  that  a  total sentence of two years three months‟ imprisonment was manifestly excessive in the circumstances.  There the Court referred to the offending involving an entire year of systematic and serious fraud perpetrated on a victim wholly reliant on the offender. It considered little credit should be given for the guilty plea at a late stage, and that

there was no real remorse shown.

[22]     Mr Francis referred me to Simpson v Police[6]  in which Venning J upheld a

[6] Simpson v Police HC Auckland CRI-2005-404-68, 12 August 2005.

sentence of three years‟ imprisonment imposed on an offender who had exploited a

78 year-old woman and obtained $12,300 by deception.  In that case a starting point of two-and-a-half years was taken and an uplift of six months‟ imprisonment was included on account of previous convictions and offending while on bail.   In that case, Venning J considered other relevant authorities which concerned vulnerable victims and theft or fraud involving relatively modest amounts of money.[7]

[7] Simpson v Police at [14].

[23]     Having regard to those cases, I consider a starting point of between two and two-and-a-half years‟ imprisonment would have been appropriate in this case.   I agree with Mr Francis that on a proper analysis, the real starting point taken by the District Court Judge in this case was 16 months‟ imprisonment, to which he added an uplift of six months on account of the previous history of dishonesty offences.  On that basis, it may be said that the starting point adopted was too low.   I do not consider it to be appropriate to add a further uplift on account of the appellant‟s previous history except to say that, looking at the matter globally, it tends to put the starting point at the higher end of the appropriate range.

[24]     The appellant is entitled to a discount for his guilty plea given that he spared the incapacitated complainants from the burden of giving evidence, although I acknowledge that the Crown‟s case against him was a strong one.  I also think some credit should be given for the expressions of remorse but, despite the provisions of s 10(1)(a)  Sentencing  Act 2002,  an  offer  by  an  impecunious  offender  to  make

amends cannot be given any weight.[8]

[8] Sentencing Act 2002, s 10(2)(a).

[25]   Considering that an appropriate penalty, taking into account all of the circumstances,  would  have  been  two-and-a-half  years‟ imprisonment,  and  then allowing a 20-25 percent discount for a guilty plea, a sentence of 22 months to two

years‟ imprisonment would have been easily justifiable.

[26]     In those circumstances, the sentence of 19 months‟ imprisonment actually imposed in this case cannot be said to be manifestly excessive and the appeal is dismissed.

....................................

Toogood J