Williams v Police
[2018] NZHC 732
•19 April 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000003
[2018] NZHC 732
BETWEEN TONY JOHN WILLIAMS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 April 2018 Appearances:
D Goldwater for the Appellant S J Mallett for the Crown
Judgment:
19 April 2018
ORAL JUDGMENT OF DUNNINGHAM J
Introduction
[1] On 8 December 2017, the appellant was sentenced to two years and two months’ imprisonment, having pleaded guilty to a charge of burglary.1 He now appeals this sentence, arguing that the starting point was too high and the Judge should have given him further discounts.
Background facts
[2] At the time of the offending, the appellant had been employed by Armourguard security for two and a half years. As part of his role, he regularly re-stocked an ASB ATM in a laundromat shop in Rolleston. To allow that, he was provided with various keys and alarm codes needed to access the machine through that shop.
1 Police v Williams [2017] NZDC 28197.
WILLIAMS v NEW ZEALAND POLICE [2018] NZHC 732 [19 April 2018]
[3] The appellant devised a plan to steal the money inside the ATM. He told the pre-sentence report writer that he had carefully selected that ATM because of the laundromat’s relatively limited security set-up. He memorised the access codes and chose a time when the ATM would contain a significant amount of money.
[4] At 2.07 am on Saturday, 21 January 2017, the appellant gained unauthorised access to the laundromat. He disarmed the alarm and unlocked the ATM. He removed
$179,300 from the machine. He then fled the laundromat, leaving the rear of the ATM open. He resigned from his role at Armourguard three days later.
[5] Armourguard conducted an internal investigation, as did the Police. When spoken to by the Police, the appellant admitted he was responsible. He showed the Police where he had buried $130,000 in his garden, and a further $10,000 in his home. In total, $141,331.90 was recovered. The remaining $37,818.10 was later repaid by the appellant on the day of his sentencing, thanks to help from his family.
District Court decision
[6] The Judge noted that the appellant had a limited conviction history. His three prior convictions were in 2007 and did not involve dishonesty. While not aggravating the current offending, it meant the appellant was not entitled to a discount for previous good character.
[7] The Judge also noted that the report-writer could not discern any real remorse in the appellant for the victims of his offending, which included his co-workers. The appellant blamed his offending on his issues with alcohol. However, the Judge agreed with the report-writer who did not consider alcohol use to be a factor in this offending as the appellant was not intoxicated at the time of the offending. Rather, it was a well-planned heist.
[8] The Judge noted that Armourguard had suffered further loss from the theft. At the time, he said, it had to pay a $25,000 excess on its insurance claim, and the premiums would increase as a result of the claim. In addition, its relationship with ASB, an important client, had been strained.
[9] The Judge considered that the key sentencing principles were: the need to hold the appellant accountable; to denounce the appellant’s conduct; and to deter others in the industry from such offending. He found that the aggravating features of the offending were: the high degree of premeditation; the gross abuse of trust; and the scale of the theft. The fact that much of the money was recovered in the aftermath of the offending was a mitigating factor, but there remained other significant impacts from the offending.
[10] The Judge took a starting point of three years and four months’ imprisonment. He noted that he would have adopted a much higher starting point if the money had not been recovered.
[11] The Judge then gave a six-month discount for the appellant’s time on curfew, his willingness to attend restorative justice, his self-referral to the Salvation Army for treatment and for the payment of reparation. He then applied an eight-month discount for the appellant’s guilty plea. This resulted in an end sentence of two years and two months’ imprisonment.
[12] The Judge noted that, even if the sentence had been two years or less, he would not have commuted it to home detention because of the seriousness of the offending.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[14] The appellant submits that the starting point was manifestly excessive in light of other similar cases, in particular, Cherry v Police.4 Counsel suggests that the Judge’s comment that he would have adopted a higher starting point if the money had not been recovered implies the existence of a higher, undisclosed starting point in his deliberations.
[15] The appellant also submits that insufficient credit was given to recognise his co-operation and assistance to the Police. He led them directly to the hidden money when confronted. Insufficient credit was also given for the payment of the reparation in full and his remorse.
[16] It is submitted that the end sentence should be reduced to below two years, and leave should be given to apply for home detention.
Respondent’s submissions
[17] The respondent submits that the sentence imposed was not manifestly excessive. The Judge considered a number of comparable cases in setting his starting point. While the present starting point was higher than in those cases, it is appropriate here in light of the much higher amount stolen and the appellant’s gross breach of trust.
[18] The respondent notes that full reparation by the appellant does not mitigate the full loss caused by the offending, including the damage to Armourguard’s reputation, and the cost of completing an internal investigation.
[19] The respondent submits that the Judge appropriately recognised the appellant’s personal mitigating factors. He appropriately considered that the appellant did not show any real remorse for the effects of the offending on Armourguard and on his co-workers. The respondent also submits that the appellant conflates the same point by seeking further discounts both for his “co-operation and assistance” and for paying
4 Cherry v Police [2012] NZHC 1125.
reparation, as the appellant’s co-operation was returning the money and these factors were recognised in the six-month discount.
Discussion
Was the starting point too high?
[20] There is of course no “guideline” case for burglary sentencing. As the Court of Appeal noted in Arahunga v R, the Court has deliberately not set a tariff for burglary because “the range of circumstances in which the offence can be committed is so varied”.5 However, in R v Nguyen, the Court of Appeal did identify the following factors as relevant to the seriousness of burglary offending:6
(a)the degree of planning and sophistication in the offending;
(b)the nature of the premises entered;
(c)the kind and value of the property stolen;
(d)damage done;
(e)the impact and potential impact upon occupants or owners of the property; and
(f)the extent of the offending where multiple burglaries are involved.
[21] The present offending involved a commercial premise. The value of the cash stolen was very high and the burglary was premeditated and well planned. It involved a gross breach of trust as the appellant abused his position as an Armourguard employee and knowledge of the premises’ security.
5 Arahunga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
6 R v Nguyen CA110/01, 2 July 2001.
[22] While the respondent has referred to the cases of Gage v R,7 and R v Angelm, 8 as useful comparators, these were both robberies which did not involve the gross breach of trust involved in the present case. Their key relevance is that they involved robbery of property worth a significant amount, being $45,000 and $43,000 respectively. I accept, though, that they indicate that a higher starting point should apply here.
[23] In my view, the key issues in this case are how the Court should take into account the large sum taken, and the gross breach of trust, with the relevant mitigating factors, including that a large amount of the property was recovered and the appellant subsequently committed to repay the shortfall with the assistance of his family. In this case, the appellant’s role as an Armourguard security officer, who was entrusted with a great deal of confidential information which he misused to carry out the burglary, means the cases which are most analogous are Cherry v Police and R v Stevens.
[24] In R v Stevens, the defendant stole $350 of copper wiring from a commercial premise.9 He had keys and the alarm codes because he had been employed as a cleaner there. He was stopped just after leaving and the wiring recovered. The Court of Appeal held that a starting point of no more than 18 months’ imprisonment should be taken, given the premeditation and breach of trust.
[25] The present offending is far more serious than in Stevens. The amount stolen here was far greater. It also took longer for the money to be returned, requiring Armourguard and the Police to carry out investigations. This caused suspicion to be thrown on the appellant’s former co-workers. The breach of trust here was therefore higher, and it caused Armourguard’s reputation to be damaged. I consider, therefore, a much higher starting point is required.
[26] In Cherry v Police, the defendant was convicted of theft by a person in a special relationship.10 He was a security guard whose role was to replenish the cash in ATMs. On his last day of work, he used his codes to steal $5,160 in cash from an ATM. He
7 Gage v R [2014] NZCA 140.
8 R v Angelm [2009] NZCA 358.
9 R v Stevens [2009] NZCA 190.
10 Cherry v Police, above n 4.
denied taking the cash when confronted. The starting point of 18 months’ imprisonment was upheld on appeal as entirely appropriate.
[27] The offence in Cherry, however, had a maximum penalty of seven years’ imprisonment, while burglary (which is what the appellant has been charged with), has a 10-year maximum. The fact that the appellant broke into another party’s premises at night using his knowledge of the security codes, increases the seriousness of this offending. In addition, the amount stolen by the appellant was almost 35 times more than that in Cherry. These two factors in my view justify a higher starting point.
[28] I do not accept the appellant’s submission that through a combination of recovery and reparation, the starting point should be assessed as being the same in Cherry because the financial loss was a nil amount. The reality is that payment of reparation is a mitigating factor relating to the offender. It does not impact on the starting point. It is separate from the question of recovery of goods or money stolen which, as here, was taken as a mitigating factor of the offending. In any event, the loss to the victim was not nil (as was acknowledged today), and as I have already explained. For this reason, I also do not accept the appellant’s criticism of the Judge taking an “unknown” starting point for the offending and then discounting it for the recovery of the cash when setting the starting point. It was a mitigating factor of the offending which he appropriately took into account.
[29] In my view, in light of the aggravating factors of the offending, which in particular are the breach of trust, the amount taken, and the adverse effects on Armourguard and the appellant’s former co-workers, the starting point was warranted. I also note that when the maximum penalty is 10 years, the starting point of three years and four months, seems to me to be proportionate.
Should further discount have been given?
[30] The six-month discount given by the Judge for mitigating factors relating to the offender equates to a 15 per cent discount. By it, he took into account the appellant’s time on curfew, his willingness to attend restorative justice, his self-referral to the Salvation Army for treatment and his payment of reparation.
[31]The appellant submits that this was insufficient credit for:
(a)his co-operation and assistance to the Police;
(b)the full payment of reparation; and
(c)his remorse.
[32] In terms of the payment of reparation, the respondent submits that it does not mitigate the full loss caused by the appellant’s offending to Armourguard, such as the damage to its reputation, and the cost of the internal investigation. I accept that. Nevertheless, the payment of reparation for the balance not recovered of $37,818 should be recognised as a genuine attempt to remedy the wrong done, which will no doubt have adverse consequences for the defendant and his family. In my view, this is a significant attempt to remedy the harm done, and as such, it should be encouraged in the sentencing process and be reflected in a meaningful and significant discount. In this case, it was subsumed in the 15 per cent discount which also accounted for other factors such as the willingness to attend restorative justice, co-operation with authorities and willingness to address the appellant’s difficulties with alcohol. In my view, the willingness to repay more than $37,000, should have been reflected in a six month discount on its own, with a further discount for the other matters.
[33] I do not accept, though, that there was then a need to separately discount for remorse. There were clearly some reservations held by both the report writer and the Judge as to whether the appellant genuinely understood and was remorseful for the impact he had had on Armourguard and its staff. To the extent that the appellant’s actions since the offending demonstrate remorse, I consider that is adequately reflected in a larger discount for co-operation and assistance to police, full payment of reparation, and willingness to take part in restorative justice.
[34] I note that no issue was taken with the discount afforded for the guilty plea, nor could there, as it reflects almost the full 25 per cent discount available.
[35] In my view, it is appropriate to give a six month discount for the willingness to pay such a large sum in reparation alone, and a further five months11 to reflect the other factors. That takes the sentence to two years and five months, from which I would afford a further seven month discount for an early guilty plea, taking the end sentence to 22 months.
[36] That takes the end sentence to a short term of imprisonment and in those circumstances, the appellant asks that leave is granted to apply under s 80I of the Sentencing Act 2002 for home detention.
[37] On this issue, I note that the District Court Judge expressed a view that given the scale of the offending and the aggravating features relating to it, a sentence of home detention would not serve the purposes and principles of sentencing, despite the fact that home detention is acknowledged to be a punitive sentence as outlined by the Court of Appeal in R v Iosefa.12 However, I note the report writer had seen merit in a sentence of home detention and considered it could address the punitive requirements in this case.
[38] I am looking at this issue from a different perspective from that of the District Court Judge. Mr Williams has now served approximately four and a half months of his sentence. He does not have an address immediately available and in all likelihood, even if an address were to become available, he would have spent more time in prison.
[39] I consider it is likely that he will have served half his likely prison term by the time a home detention address might be proffered. No doubt his experience in prison has been salutary. I consider that at this point, it is likely he has served sufficient of his sentence to meet those purposes of deterrence and denunciation, making it acceptable at this stage for him to serve the balance of his sentence on home detention if an address becomes available.
11 In my oral judgment I inadvertently said six months. However, it is the end sentence which prevails, not the methodology by which it was reached.
12 R v Iosefa [2008] NZCA 453.
Conclusion
[40] I have found that the discount for mitigating features in this case did not adequately reflect the importance of encouraging meaningful offers of reparation to be made where property offences occur.
[41] Accordingly, the appeal is allowed and the sentence of two years and two months is quashed and in its place I impose a sentence of one year and 10 months’ imprisonment, standard release conditions to apply until sentence end date. Leave to apply for home detention is granted.
Solicitors:
Raymond Donnelly & Co., Christchurch David Goldwater, Barrister, Christchurch
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