Tiopira v Police

[2012] NZHC 1720

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-23 [2012] NZHC 1720

JAMES TURIHI TIOPIRA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 July 2012

Counsel:         R Barnsdale for Appellant

J E Tarrant for Respondent

Judgment:      16 July 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

JAMES TURIHI TIOPIRA V NEW ZEALAND POLICE HC HAM CRI-2012-419-23 [16 July 2012]

[1]      Mr Tiopira pleaded guilty in the District Court to 33 charges of dishonestly using a document to obtain a pecuniary advantage.  He also pleaded guilty to four charges of receiving stolen credit cards or Eftpos cards.

[2]      On 27 April 2012, Judge Burnett sentenced Mr Tiopira to an effective term of

27 months imprisonment on all charges.[1]    Mr Tiopira appeals to this Court against the sentence on the basis that it is manifestly excessive.

[1] R v Tiopira District Court Hamilton CRI-2011-019-006533, 27 April 2012.

Facts

[3]      The events  giving rise to all the charges  occurred over a 14 day period between 14 and 28 July 2011.  During that period, Mr Tiopira came into possession of stolen credit cards and Eftpos cards on four separate occasions.  On each occasion he obtained the card very shortly after it had been stolen from the owner.  He then immediately used the cards to obtain either cash or goods.  Many of the transactions occurred within minutes of each other.   In total, Mr Tiopira obtained money and goods to the value of $11,606.21.

[4]      Mr Tiopira has 71 previous convictions.   Many of thsee are for offending involving different kinds of dishonesty.

The structure of the sentence

[5]      The Judge took a starting point of 30 months imprisonment to reflect the totality of all offending.   She then added an uplift of six months imprisonment to reflect the fact that Mr Tiopira has numerous relevant previous convictions.   She then applied the maximum discount available, 25 per cent, to reach the end sentence of 27 months imprisonment.

Issue on appeal

[6]      On appeal, counsel for Mr Tiopira advances a single ground.  This is that the starting  point  of  30  months  imprisonment  the  Judge  selected  was  manifestly

excessive.    He accepts  that  the  uplift  the Judge applied  to  reflect  Mr Tiopira’s

previous convictions was appropriate, as was the discount given for his guilty pleas.

Decision

[7]      As both counsel agree, and as the authorities demonstrate, there is no tariff, or guideline, judgment of the Court of Appeal in this area of offending.   That is no doubt because the circumstances in which the offending can occur will vary so widely.     Importantly,  in  the  present  case,  however,  there  were  a  number  of aggravating  factors  that  needed  to  be  reflected  in  the  starting  point  the  Judge adopted.

[8]      The first of these was that Mr Tiopira came into possession of stolen cards on no fewer than four occasions.  In each case he did so within a very short period after the card had been stolen.  Taken together, all of the offending occupied just 14 days. This demonstrates, without question, that Mr Tiopira had a close connection to those who were stealing credit cards.  He obviously made it known to such persons that he was prepared to receive and immediately use stolen credit cards.  I have no doubt that he rewarded those  who provided him with the stolen cards in one way or another.

[9]      Next, there is the fact that the stolen cards were used on no fewer than 33 separate occasions to obtain money or goods.

[10]     Thirdly, the total sum that Mr Tiopira obtained was not insubstantial.  Many of the cases demonstrate that offenders who use stolen cheques or credit cards are only able to obtain advances or goods to the value of $2,000 to $3,000 before they are apprehended.  The amount that Mr Tiopira obtained from using the stolen credit cards was significantly greater than that.

[11]     Some of the authorities that counsel referred to the Judge at sentencing were of little relevance.  These included R v Rose and R v Varjan.[2] The losses incurred in those cases were $8.4 million and $546,000 respectively.   The respective starting

[2] R v Rose [1992] NZLR 552; R v Varjan CA97/03, 26 June 2003.

points  were  four  and  three  and  a  half  years  imprisonment.    They demonstrate, however, that a starting point of more than three years imprisonment will be reserved for cases where very significant sums are involved.

[12]     Counsel have provided me with a helpful review of several cases where an offender  has  made  multiple  use  of  stolen  credit  cards  or  cheques.[3]    These demonstrate that, as a general proposition, a starting point of around 12 to 18 months imprisonment will be appropriate where the offending results in losses of around

[3] Bakarat v Police HC Palmerston North CRI-2008-454-35, 14 August 2008; Te Au v Police HC Nelson CRI-2007-442-19, 10 December 2007; Baker v Police HC Auckland CRI-2009-404-122, 24

August 2009; R v Singh (2003) 20 CRNZ 158.

$2,000 to $3,000.  Counsel have not been able to find any case comparable with the present,  involving  use  of  several  stolen  cards  and  total  losses  of  around  the magnitude produced by the present offending.

[13]     The aggravating factors I have identified above are sufficient, in my view, to justify lifting the starting point in Mr Tiopira’s case to a level significantly above those in which starting points of 12 to 18 months imprisonment have been found to be appropriate. Generally speaking, those cases involved offending where a single stolen chequebook or credit card was used to carry out the offending.  The fact that Mr Tiopira was able to make extensive of no less than four credit cards over a very short period to obtain a reasonably significant amount of goods and cash means that his offending is significantly more serious than that in the cases to which I have referred.

[14]     Although I accept that the starting point the Judge adopted may have been at the top of the available range, I therefore cannot say that it was outside the range that was open to her.  There being no other grounds of appeal, the appeal cannot succeed

and it is dismissed.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

R Barnsdale , Hamilton