The Queen v Leslie Ronald Orchard

[2003] NZCA 239

IN THE COURT OF APPEAL OF NEW ZEALAND

CA123/03

THE QUEEN

v

LESLIE RONALD ORCHARD

Hearing:22 October 2003

Coram:Anderson J
Fisher J
Salmon J

Appearances:  A J Johns for Appellant

M A Woolford for Crown

Judgment:24 October 2003 

JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1]       Mr Orchard pleaded guilty in the District Court to over 600 charges involving dishonesty.  He received a sentence of seven and a half years imprisonment, with a non-parole period of five years.  This is an appeal against that sentence.

[2]       The appellant has a history of convictions for fraud and false pretences stretching back to 1982.  He has been imprisoned on a number of occasions for terms varying from six months to three years.  In 1989 he received a sentence of three years imprisonment on multiple charges of fraudulent use of documents.  In 1993 he received a sentence of two years five months for a number of charges of obtaining money by false pretences.  Prior to the present offending, his most recent fraud-related sentence was in 1998 when he was imprisoned for six months.

[3]       In December of last year he pleaded guilty to the following offences.

Using a document with intent to defraud	597
Obtaining credit by fraud	32
Forgery	26
Obtaining a document with intent to defraud	11
Attempted use of document with intent to defraud	7
Money laundering	7
Theft	4
False pretences	2
Driving with excess breath alcohol	1

[4]       In February of this year he was sentenced to seven and a half years imprisonment for the forgery offences and lesser terms of imprisonment for the others, all sentences to be served concurrently.

[5]       The total amount involved in the offending was a little less than $1.5 million.  Over $670,000 of that has not been able to be recovered.  One hundred and twenty-one offences were committed after 1 July 2002, the date upon which the Sentencing Act 2002 came into force.  Those offences involved a total of $742,000, of which something in excess of $400,000 has not been able to be recovered.

[6]       Included in the offending post 1 July 2002, was the charge which involved the greatest amount of money.  It was a fraudulent loan application, as a result of which the appellant obtained $420,000.  Approximately $300,000 of that was recovered.

[7]       The sentencing Judge noted the amounts involved in the offending, the effects on the victims and the appellant’s background.  He recorded that part of that background was a serious accident involving brain injuries, which occurred in 1981.  It seems possible that the appellant’s anti social behaviour, evidenced by his offending, may have some connection with these injuries, although the appellant himself does not deny responsibility for what he does.

[8]       The sentencing Judge noted that the maximum sentence on the forgery counts was 10 years.  He considered s8(d) of the Sentencing Act to be relevant in that the offending was near to the most serious of its kind.  In relation to the forgery matters, he took a starting point of nine years imprisonment.  He reduced that to 18 months to recognise the pleas of guilty, resulting in a sentence of seven years and six months.  He then considered the provisions of s86 of the Act relating to the imposition of minimum parole periods and determined that the applicable non-parole period would be five years.

[9]       For the appellant, Ms Johns submits that the starting point was excessive.  She notes that the Judge referred to an amount of $2 million being involved in the offending, whereas in fact, the total was a little under $1.5 million.  She also noted that the Judge had referred to a considerably greater number of victims than there were in fact.  Ms Johns submitted that the starting point was fixed by reference to these inflated figures.  She submitted that the discount for the guilty plea was insufficient and that this was not an appropriate case for the imposition of a minimum parole period pursuant to s86.  In relation to s86 Ms Johns submitted that the Judge failed to consider the provisions of s152, which makes it clear that s86 applies only to offending committed since the Act came into force and drew no distinction between pre and post Sentencing Act offending. 

[10]     Ms Johns referred to Cole v Police [2001] 2 NZLR 139, a decision of a full Court of the High Court in which sentences for fraud related offending were reviewed. She submitted that by reference to that decision a starting point of nine years was out of line with current sentencing for serious dishonesty offences. We note that none of the offenders considered in Cole had a history of previous offending similar to that which exists in this case.  She submitted that the Judge should have taken the brain damage suffered by the appellant into account.  The Judge did refer to this issue, but specifically decided to make no allowance in respect of that aspect.  We agree that in the circumstances of the repetitive behaviour, and in the light of the psychiatric report later referred to, that the Judge was right not to consider that as a mitigating factor.

[11]     For the Crown, Mr Woolford submitted that it would have been open to the Judge to have chosen a higher starting point than nine years and that the actual term of imprisonment of seven and a half years was appropriate in the circumstances.  In relation to s86 he submitted that the circumstances of these offences included their context in a history of repetitive and on-going offending and that a minimum period of imprisonment of two-thirds of the full term was justified.

Consideration

[12]     Mr Orchard is without doubt, a serious recidivist offender.  The sentencing Judge had before him a psychiatric report which records the appellant’s attitude towards his offending.  The appellant considers his fraudulent behaviour to be a profession.  He regards the risk of returning to prison as being part of the “game”.  He compared his career of fraudulent behaviour to an addiction and described the adrenaline rush that he had when he “pulled off a good one”.  The psychiatrist expressed the view that the appellant does not suffer from a mental illness, although his behaviour is strongly indicative of anti-social personality, which was probably brought on by his head injury.  The appellant does not display any overt neurological symptoms as a result of that injury.

[13]     One of the purposes of sentencing, set out in s7 of the Act, is to protect the community from the offender.  The appellant’s history indicates that this must be an important factor in the imposition of a sentence in this case.  That factor, of course, is only one of a number which must be taken into account.  As Ms Johns submitted, there is no element of breach of trust in this offending, nor is there any violence.  Nonetheless, the appellant must accept that if he continues to offend the need to protect the community from him will assume ever greater importance.

[14]     We agree with Mr Woolford that the offending in this case could have justified a higher starting point than the nine years chosen by the Judge.  Nevertheless, we consider that nine years was within the appropriate range and we do not consider it appropriate on appeal to interfere with that starting point.

[15]     We do record, however, that in the case of any future offending the Court may well consider that cumulative terms of imprisonment are appropriate. 

[16]     We accept Ms Johns’ submission that the allowance given for the plea of guilty in this case was insufficient.  The sentencing Judge rightly noted that a significant credit should be allowed for the guilty pleas given the length of time that would have been taken by a trial.  In our view, a reduction of 18 months was not sufficient.  A reduction of 25 per cent should have been allowed, that is to say, two years and three months.

[17]     We, therefore, allow the appeal and reduce the sentences on the forgery matters to six years and nine months imprisonment.

[18]     It is then necessary to consider whether a greater minimum non-parole period than the one-third set by the Parole Act 2002 should be fixed pursuant to s86.  The first step is to consider whether the offending is sufficiently serious to justify a longer minimum period.  As this Court said in R v M and D (CA296 and 299/02, 30 July 2003) the test:

…envisages a comparison between the instant offending and what Parliament have called the ordinary range of offending of the particular kind. (para.[12])

It also needs to be born in mind that the effect of s152 of the Sentencing Act is that s86 is only applicable to the offending which occurred after the Act came into force. 

[19]     The test is appropriately encapsulated in R v Brown [2002] 3 NZLR 670 at para.35 in these words:

… the Judge must consider whether the offending itself is sufficiently serious so that for the offender to serve only the ordinary minimum period of one-third of the length of the sentence would not be enough to punish, deter and denounce the offending.  If that is so the Judge may fix a minimum non-parole period at a level (not more than two-thirds of the nominal length of the sentence or ten years) which does sufficiently punish, deter and denounce the offending.

[20]     In R v Brown the Court emphasised that the focus is on the circumstances of the offence.  We consider that that term is sufficiently broad to encompass factors surrounding the commission of the offence, such as the fact that the offending forms part of a pattern of criminal behaviour.  Looked at in that way, there is no doubt that the circumstances of the post 1 July 2002 offending take it out of the ordinary range of offending of the particular kind.  We consider that in all the circumstances a minimum period of imprisonment of two-thirds of the sentence of six years nine months is appropriate.  That amounts to four years six months.

[21]     The appeal is allowed to this extent.  The sentence imposed for the forgery matters is reduced to six years nine months.  All other sentences are upheld and all sentences are to be served concurrently.  A minimum term of imprisonment of four years six months is imposed pursuant to s86.

Solicitors:

Crown Solicitor, Auckland