Ursua v Police
[2023] NZHC 3479
•1 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-465
[2023] NZHC 3479
BETWEEN JAN BRYON DUQUE URSUA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 November 2023 Appearances:
C M Chester-Cronin for Appellant J L Gibson for Respondent
Judgment:
1 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 1 December 2023 at 1 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
C M Chester-Cronin, Barrister, Auckland Meredith Connell, Auckland
URSUA v NEW ZEALAND POLICE [2023] NZHC 3479 [1 December 2023]
[1] Mr Ursua was sentenced to two years and seven months’ imprisonment following guilty pleas to 43 charges. The charges are:
(a)obtaining by deception (over $1,000) (x 25);1
(b)accessing computer system for a dishonest purpose (x 2);2
(c)altering a document with intent to defraud (x 1);3
(d)obtaining by deception ($500–$1,000) (x 6);4
(e)failing to carry out obligations in relation to a computer search (x 1);5
(f)intent to access a computer system for a dishonest purpose (x 1);6
(g)obtaining by deception (less than $500) (x 2);7 and
(h)theft of property (less than $500) (x 5).8
[2] Prior to the guilty pleas being entered, Judge A M Fitzgibbon had provided a sentencing indication on 3 May 2023.9 That sentencing indication consisted of:
(a)a starting point of 40 months’ imprisonment for the leading offending;
(b)an uplift of two months for the other offending, resulting in an overall starting point of 42 months’ imprisonment; and
(c)a 25 per cent discount for any guilty plea.
1 Crimes Act 1961, ss 240(1)(a) and 241(a). The maximum penalty is seven years’ imprisonment.
2 Section 249(1). The maximum penalty is seven years’ imprisonment.
3 Section 258. The maximum penalty is 10 years’ imprisonment.
4 Sections 240(1)(a) and 241(b). The maximum penalty is one year’s imprisonment.
5 Search and Surveillance Act 2012, s 178. The maximum penalty is three months’ imprisonment.
6 Crimes Act, s 249(2). The maximum penalty is five years’ imprisonment.
7 Sections 240(1)(a) and 241(c). The maximum penalty is three months’ imprisonment.
8 Section 223(d). The maximum penalty is three months’ imprisonment.
9 New Zealand Police v Ursua CRI-2022-044-1596, 3 May 2023 (sentencing indication).
[3] This was summarised as a total of approximately two years and six months’ imprisonment, but it was suggested that the appellant “might get under the 24-month mark which enables the Court to consider an electronically monitored sentence”.10
[4]At sentencing, the calculation was as follows:11
(a)a starting point of 40 months;
(b)an uplift of two months for further offending;
(c)a discount of 25 per cent for the guilty plea;
(d)a two-week discount for remorse; and
(e)a reparation payment of $5,000.
[5] The sentence is appealed on the grounds that it is manifestly excessive. Counsel for the appellant submits that:
(a)the starting point was excessive because it did not factor in an assessment of the motivation for his offending; and
(b)the discounts for mitigating factors were insufficient because:
(i)a further discrete discount of up to five per cent should be awarded pursuant to s 9(2)(g) of the Sentencing Act 2002 for the fact that he is a first offender and/or had previous good character;
(ii)social and cultural factors relevant under a s 27 report justify a further discount of 10–15 per cent;
(iii)a discount of five per cent should be applied for remorse; and
10 At [10].
11 New Zealand Police v Ursua [2023] NZDC 16796.
(iv)a further discount of five per cent should be awarded for the appellant’s prospects of rehabilitation.
Legal principles
[6] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.13 The focus is on the end sentence imposed, rather than the process by which it is reached.14
[7] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.15
[8] Appellate courts do not indulge in mere tinkering with a sentence.16 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.
Fresh evidence
[9] In respect of the social and cultural factors, the appellant seeks leave under s 334 of the Criminal Procedure Act 2011 to produce an affidavit from the appellant addressing his background.
[10] The Supreme Court in Berkland v R addresses when background factors of an offender, referred to by the Court as “s 27 information”, is required to be taken into account.17 Such background information is required to be taken into account where it causatively contributes to the offending.
12 Criminal Procedure Act 2011, s 250.
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
14 At [36].
15 At [32].
16 R v Boyd (2004) 21 CRNZ 169 at [38].
17 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108]–[109].
[11] Usually, s 27 information is provided from a source other than the defendant. As noted by Harland J in Mullan v Police, s 27 of the Sentencing Act contemplates that a separate person, apart from an offender but at an offender’s request, can be called by them to speak about the matters outlined in s 27(1).18
[12] The appellant contends that the affidavit evidence is admissible under s 334 of the Criminal Procedure Act, under the criteria established in Lundy v R:19
(a)Is the evidence credible?
(b)Is the evidence fresh, in the sense that it could not have been obtained with reasonable diligence prior to the lower court’s hearing?
(c)As the overriding test, is it in the interests of justice to admit the evidence regardless of “freshness”?
[13] In T (CA440/2018) v R, the appellant filed affidavit evidence from himself and his sister for an appeal, seeking recognition of his status as a foreign prisoner and his cultural background for fixing applicable mitigating discounts under s 8(h)–(i) of the Sentencing Act.20 The respondent did not object to the Court considering the affidavit evidence, on the assumption that it should have been provided to the sentencing Judge but was not done so for reasons akin to counsel error.21
[14] In this case, the respondent says it is questionable whether the affidavit is admissible under the Lundy principles, but no objection was taken to this Court receiving and considering the affidavit. Counsel for the respondent says that a proper analysis should be undertaken under s 27 to determine whether the appellant is entitled to a discount. For circumstances where the evidence is given by the appellant himself rather than another person, little to no weight should be given to the affidavit. Furthermore, while the affidavit evidence outlines background information that in some ways explains the context of and motivations for the offending, it does not satisfy
18 Mullan v Police [2023] NZHC 962 at [23]–[24].
19 Lundy v R [2013] UKPC 28 at [117]–[120], referencing R v Bain [2004] 1 NZLR 638 (CA).
20 T (CA440/2018) v R [2018] NZCA 416.
21 At [12].
the requirement of causatively contributing to the offending. Ultimately, the facts as outlined in that evidence do not justify any discount for the personal background in terms of s 8(i) of the Sentencing Act.
[15] While the affidavit evidence could have, with reasonable diligence, been obtained prior to the sentencing, the evidence is a credible source of additional information regarding the appellant’s personal background. I consider it is in the interests of justice to admit the fresh evidence for the purposes of this appeal.
Starting point
[16] The appellant contends that the adopted starting point was too high because it did not factor in the appellant’s motivation for the offending. For comparison, counsel referred to the following cases:
(a)In K v R,22 the defendant faced four charges of dishonestly using a document, 12 charges of obtaining by deception, three charges of using a forged document, a charge of theft of a motor vehicle, a charge of theft, two charges of possession of utensils, a charge of possession of cannabis, a charge of possession of methamphetamine and a charge of possession of objectionable publication. In that case, the starting point of four years and 10 months’ imprisonment was upheld on appeal as being “stern but within range”.23
(b)In Beaumont v Police,24 the starting point upheld on appeal was three years and nine months’ imprisonment.25 The offending involved 16 charges of obtaining by deception (over $1,000), and further charges totalling 39 dishonesty charges. This Court held that the offending involved a relatively moderate degree of sophistication and premeditation, and the deception had a significant emotional and financial impact on the victims.26 The appellant says that the amounts
22 K v R [2022] NZHC 3337.
23 At [59].
24 Beaumont v Police [2022] NZHC 472.
25 At [21].
26 At [40].
stolen were similar, but the appellant’s offending was not as sophisticated as Mr Beaumont’s offending, who ran various schemes with increasing degrees of premeditation. Mr Beaumont also had a history of offending and not following through on promises to address his issues.
(c)In Visser v Police,27 the appellant faced 18 charges of obtaining by deception. In this Court, a starting point of three years and six months’ imprisonment was upheld, with this Court recognising that the offending was not particularly sophisticated, but it was persistent and dishonest, with considerable premeditation.28 The appellant suggests that the offending in Visser is more serious than in the present matter, with the total sum stolen ($270,063) being much greater. In Visser, the conduct was motivated by circumstances of financial distress, whereas in this case the appellant’s conduct was motivated by the need to pay for his drug addiction (in terms of ongoing supply and to pay off related debts).
(d)In Helsby-Knight v R,29 the defendant faced 48 charges of dishonestly using a document and 69 charges of causing loss to others by deception. The defendant pleaded guilty to three representative charges — two of using a document to obtain a pecuniary advantage and one of using a forged document. On appeal, the starting point of three years and six months’ imprisonment was upheld, but the Court of Appeal noted that it could have been higher.30 Counsel for the appellant submits that the offending in this case is substantially less serious than in Helsby-Knight.
[17] I have reviewed these other cases and consider they are sufficiently analogous to support the 42-month starting point adopted by Judge Fitzgibbon in this case. I accept the respondent’s submissions that, whilst some of Mr Ursua’s offending was
27 Visser v Police [2015] NZHC 3275.
28 At [15]
29 Helsby-Knight v R [2015] NZCA 315.
30 At [49].
relatively unsophisticated (like the petrol drive-offs), a lot of it was premeditated, targeted, and took place over an extended period, including beyond the time of his employment. The amounts stolen by the appellant were significant. The offending involved serious breaches of trust. He used his account to log in to his former employer’s ordering system and placed orders six times.
[18]In R v Varjan, the Court of Appeal stated:31
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.
[19] However, under the two-step process subsequently established in R v Taueki and Moses v R, aggravating and mitigating factors personal to the offender are considered in the second stage rather than the first.32 Accordingly, I consider the issue of the appellant’s personal motivations further below.
[20] Meanwhile, I conclude that Mr Ursua’s starting point was well within the available range and there is no error that needs to be corrected.
Stage two discounting factors
[21] I accept the respondent’s submission that the appellant is not entitled to a discrete discount of up to five per cent for previous good character pursuant to s 9(2)(g) of the Sentencing Act. He has six previous convictions, albeit for more minor offending of a different nature. Significantly, this offending took place over a prolonged period of time, including while Mr Ursua was on bail. In those circumstances, a discount for previous good character is not justified.
[22] Counsel for the appellant seeks to argue that a discount of 10–15 per cent should be applied for the social and cultural factors outlined in the appellant’s affidavit. These start with the fact that the appellant was born in the Philippines and
31 R v Varjan CA97/03, 26 June 2003 at [22].
32 R v Taueki [2005] 3 NZLR 372 (CA) at [8] and [44]; and Moses v R [2020] NZCA 296; [2020] 3
NZLR 583 at [6] and [46].
moved to New Zealand when he was 14 years old. He experienced culture shock with respect to the different role the church played in the community, and he got involved with friends who did not attend church. This led to him disconnecting from the church and, in turn, his family. He was introduced to alcohol by his friends and began to drink heavily and smoke weed by the age of 15. Over the ensuing years, this developed into more serious drug use and ultimately drug addictions. He started using drugs provided by his girlfriend, not realising that the Head Hunters gang would seek payment from him for those supplies. This led to the present offending during 2021 and 2022, to pay those debts and fund further drug use. Mr Ursua is now 30 years old.
[23] In Zhang v R, the Court of Appeal observed that ingrained systemic deprivation impairing a defendant’s choice, and therefore diminishing moral culpability, will require consideration in sentencing.33 Social, cultural or economic deprivation that has a demonstrative nexus with the offending may be relevant in mitigation.34 The cogency of any s 27 information depends on the strength of the link between any deprivation, the offender and his or her offending, and the availability of rehabilitative measures to specifically address the effects of systemic deprivation.35
[24] In Poi v R, the Court of Appeal granted a 20 per cent discount to acknowledge the appellant’s severe deprivation and disadvantage, as well as his rehabilitative prospects and steps taken to address past trauma.36 In that case, the appellant’s background and the profound trauma he suffered had severely limited his choices, distorted his values, and impaired his decision-making ability.
[25] However, the Court of Appeal in Cavallo v R confirmed that such a discount will not necessarily be justified where the person has been waylaid “not so much by a systemic inability to discern right from wrong, but by the temptation to gain wealth by serious criminal offending”.37
33 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [159].
34 At [162].
35 Cavallo v R [2022] NZCA 276 at [78], referencing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [49].
36 Poi v R [2020] NZCA 312 at [39].
37 Cavallo v R, above n 35, at [79].
[26] While Mr Ursua’s affidavit explains how Mr Ursua reached the point of having a drug addiction, I do not consider that his background satisfies the established threshold of causatively contributing to the offending. Mr Ursua had a pro-social upbringing with a supportive nuclear family. I do not see any basis for concluding that he was impacted by a systemic inability to discern right from wrong. Accordingly, I take the view that the circumstances do not justify any entitlement to a further discount for social and cultural factors in themselves.
[27] Even so, it is relevant to consider whether the causative impact of the appellant’s drug addiction should be taken into account when considering a discount for rehabilitative prospects.38 In this case, the appellant says that he was represented by different counsel at sentencing and the importance of rehabilitation was not clear to him then. The appellant now acknowledges that he needs to address his addiction and rehabilitate himself. He has reached out to Community Alcohol and Drug Services (CADS) and has undertaken two assessments and requested admission into their abstinence programme. A letter was handed up at the appeal hearing to confirm that he attended and completed an appointment on 10 November 2023 and has been invited to attend the CADS Abstinence Programme.
[28] I am satisfied that a discount of five per cent might have been appropriate for the appellant’s prospects of rehabilitation on the information before this Court. The District Court did not consider this mitigating factor, because it was neither sought nor factually substantiated at the time of sentencing. To the extent rehabilitative steps have been taken after the date of the sentencing, the Judge cannot be said to have been in error for not considering them.
[29] On the issue of remorse, counsel for the appellant submits that a further discount of five per cent should be allowed, reflecting both his letter to the District Court at sentencing and the remorse displayed in the appellant’s recent affidavit. I do not see any reason to revisit Judge Fitzgibbon’s assessment that a discount of only two weeks was warranted for the remorse letter offered at a late stage. The appellant’s recent affidavit for this appeal shows some important subsequent
38 At [84].
personal reflection, but this is mainly about identifying potential causes other than his own moral choices, and the advantages he can now see in addressing his addictions. The only acknowledgment of damage to victims is in the context of being “embarrassed, ashamed and frustrated at myself for the pain I have caused my family and the consequences of my offending on my old employer (who was always good to [him])”.
[30] I have considered whether to set aside the sentence and substitute a new one with an additional five per cent discount for prospects of rehabilitation. However, I accept the respondent’s position that the sentencing Judge did not make any error on the information existing at that time, the overall sentence was sound and within range in the circumstances, an amendment of that nature would amount to tinkering, and any acceptance of a discount for mitigating factors could be outweighed by an increase in the starting point.
[31] Stepping back, I still consider the sentence is within the range that can properly be justified by accepted sentencing principles.
Result
[32]Accordingly, I dismiss the appeal.
O’Gorman J
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