Whitelaw v R
[2012] NZCA 438
•26 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA359/2012 [2012] NZCA 438 |
| BETWEEN BARRY RAYMOND WHITELAW |
| AND THE QUEEN |
| Hearing: 20 September 2012 |
| Court: White, Simon France and Asher JJ |
| Counsel: S K Green for Appellant |
| Judgment: 26 September 2012 at 12.00 pm |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
On 18 May 2012 the appellant Barry Raymond Whitelaw appeared before Judge Tompkins in the District Court at Hamilton for sentence on 11 counts of using a document with intent to defraud and dishonestly and without claim of right using a document to obtain a pecuniary advantage. The maximum penalty on each count was seven years’ imprisonment.
Mr Whitelaw had offended for a period of approximately seven years. He had fraudulently, by making false applications and statements, obtained a sickness benefit, an invalid benefit and a supplementary benefit. The total overpayments came to $76,164.21.
Mr Whitelaw was sentenced to two years, five months’ imprisonment. The Judge considered that a starting point of two years was appropriate, uplifted by nine months to take into account Mr Whitelaw’s “prolific and recidivist fraud history”.[1] From that he discounted the sentence by four months (approximately 12 per cent) to take into account late guilty pleas on the morning of trial. The end sentence was therefore two years and five months’ imprisonment. Mr Whitelaw appeals against that sentence asserting it was manifestly excessive.
[1] R v Whitelaw DC Hamilton CRI-2009-019-5302, 18 May 2012 at [9].
Ms Green for Mr Whitelaw argued that the Judge made two errors which led to a manifestly excessive sentence. First, that he pitched the starting point too high, and secondly that the nine month increase for his past record was excessive.
The starting point
The Judge noted that the offending commenced within days or weeks of Mr Whitelaw having been released from an earlier term of imprisonment imposed for fraud offending.[2] He went on to observe:[3]
Mr Kaye accepts that there is no tariff decision for what can loosely be called benefit fraud, although I observe that although Mr Whitelaw is for sentence for what can be categorised as benefit fraud this is but the most recent manifestation of, as already noted, a very long and versatile history of fraudulent behaviour. It just so happens that on this occasion the state is the victim. ... Given that analysis Mr Kaye submitted that a range of around 15 months to two years is appropriate. ... Mr Kaye goes on to accept that a 10 percent discount or thereabouts for the guilty plea on the morning of trial would be available.
[2] At [2].
[3] At [8].
In this Court Ms Green, who is now briefed, departed from the submission of Mr Kaye, who had appeared at the sentencing as to the starting point. She argued that the right starting point was no more than approximately 18 months’ imprisonment. She submitted that any greater period was inconsistent with other authorities in this Court.
We do not agree. In our view the range put forward by Mr Kaye in his submissions and effectively accepted by the Judge in deciding on a starting point of two years was sound, and if anything conservative. As he recognised, there was a particular aspect of culpability that attached to Mr Whitelaw’s behaviour. It was not a fraud born of any need. Rather, as Judge Tompkins observed, Mr Whitelaw’s actions can be seen in the context of his long history of fraudulent behaviour as a calculated attempt by him to support himself by obtaining funds by fraud, on this occasion by deceiving the State. The period of approximately seven years and the numerous occasions of deceit further increased the culpability.
The amount fraudulently obtained was significant. It was less, as Ms Green pointed out, than the $127,985.59 stolen by the appellant in the decision in Ransom v R.[4] In that case this Court accepted a starting point of two and a half years’ imprisonment. The period of the fraud was just under 10 years. There the offender was a mother who misled the authorities by not disclosing that she was living with her husband. The starting point in Ransom was 25 per cent higher than the starting point set in this sentencing, which in all the circumstances is not a disparity. There is no arithmetical correlation between the amount taken and the sentence of imprisonment.
[4] Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
The starting point fixed for Mr Whitelaw was more than the 15 month starting point accepted by this Court in Heta v R,[5] but in that case the amount involved was less, being $51,000, and the period considerably less, being five specific periods totalling 19 and a half months in all.[6] In Heta the fraud was “benefit fraud” as that term is generally understood, and Ms Heta had drifted in and out of deceit by misleading the authorities as to when she was living with her occasional partner. We see the cynical and long term fraud carried out by Mr Whitelaw as in a considerably more serious category. The starting point of two years’ imprisonment applied in this sentence is consistent with Heta.[7]
[5] Heta v R [2012] NZCA 267 at [37].
[6] At [3].
[7]We have also compared the sentence to others referred to us including Davey v Ministry of Social Development HC Palmerston North CRI-2009-454-47, 15 December 2009; R v Beech CA314/01, 6 December 2001; R v Harlen (2001) 18 CRNZ 582 (CA); R v Creeks CA26/04, 23 June 2004; R v Hapuku [2007] NZCA 368; Werahiko v Ministry of Social Development HC Rotorua CRI-2008-463-55, 5 September 2008, but have not found them of assistance.
We conclude that the two year starting point that was fixed by the Judge was within the range.
Addition on account of Mr Whitelaw’s record
Mr Whitelaw’s first dishonesty convictions were in 1980, and involved a large number of serious counts involving obtaining by fraud. Mr Whitelaw was sentenced to six months’ imprisonment. Within six months of that sentencing he was sentenced to one year’s imprisonment for obtaining credit by false pretense. In 1991 he was sentenced to a period of imprisonment of one year and six months for various charges of obtaining by fraud. A pattern of convictions for dishonesty, as well as convictions on other serious counts, continued through to 2004, after which there was something of a drop off of dishonesty offending, although other offending continued. He has had over 100 convictions, and about 60 are for offences involving dishonesty.
The case is unusual in that Mr Whitelaw has already been to this Court. He had appealed his sentence of imprisonment in 2002 arguing that he should have been granted leave to apply for home detention. The appeal was dismissed. In the course of the decision Mr Whitelaw’s history of offending was traversed and it was observed:[8]
The leniency of having his term of imprisonment suspended in February 1997 plainly did not dissuade Mr Whitelaw from committing other offences of dishonesty shortly after the period expired. Further, a nine month term of imprisonment imposed on him on 20 March 2000 for those two offences was also suspended for one year. So Mr Whitelaw has been the recipient of leniency in the form of suspension of terms of imprisonment on two occasions previously but he committed two offences not involving dishonesty between 20 March 2000 and the offences before this Court. Any efforts which he may have made at rehabilitation in the years since the first suspension of imprisonment in February 1997 have plainly been ineffectual.
[8] R v Whitelaw CA392/01, 21 February 2002 at [14].
Despite these observations of the Court of Appeal and undoubtedly various sentencing Judges, Mr Whitelaw systematically and repeatedly carried out the further offending that is the subject of this appeal. Moreover, following his unsuccessful appeal in 2002, and while he was carrying out the offending that is the subject of this appeal, he was committing other dishonesty offences of shoplifting and obstructing or perverting the course of justice, as well as other offences of criminal harassment and violence.
Under s 9(j) of the Sentencing Act 2002 the number, seriousness, date, relevance and nature of any previous convictions of the offender are an aggravating factor. Mr Whitelaw’s history of past offending shows him to have a total disregard for what Courts have said to him in the past. Patently he is entirely undeterred, and a danger to the community. In those circumstances the Judge’s increase on account of Mr Whitelaw’s record of nine months (approximately 37 per cent) was appropriate.
Result
The application for an extension of time to appeal is granted, but the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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