R v Singh CA336/02 [2003] NZCA 314; (2003) 20 CRNZ 158 (13 March 2003)

Last Updated: 22 July 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA336/02

THE QUEEN



v



[] SINGH

Hearing: 25 February 2003

Coram: Blanchard J Baragwanath J Goddard J

Appearances: R D Stone for Appellant
J C Pike for Crown

Judgment: 13 March 2003

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1] The appellant was convicted by a jury on 13 counts of credit card fraud
(s229A Crimes Act 1961) and sentenced to two years imprisonment. Leave to apply for home detention was refused. He is currently awaiting trial on 40 further similar fraud charges spread over three indictments.
[2] The background facts can be briefly stated. The appellant applied for and obtained various credit cards in the names of other persons of Indian ethnicity, by fraudulently using details personal to them. He then used the cards to purchase a number of items, such as computer games, a video recorder and furniture. The total amount fraudulently expended by him on these items was around $3,000.
[3] The appellant, who is 30 years of age, has expressed no remorse for this offending, his only explanation being that he stole the money to help his dying mother in India. That explanation is however devoid of credibility. Police enquiries have indicated that the appellant has deposited sums of money to a total of $12,000 into a Westpactrust bank account in his name. This is in addition to the money he spent on purchasing the items, the subject of these charges. The source and ownership of the funds in the Westpactrust account is however disputed by the appellant and so will require to be formally proved, if the information is to be relied upon by the Crown.
[4] The appellant has a substantial list of previous convictions for fraud dating back to 1993. Further convictions are recorded in 1998, 1999, 2000 and 2001, with final warnings having been given in 1999, 2000 and 2001. The appellant has received sentences of periodic detention on a number of occasions in the past. When this latest episode of offending, committed during the period June to August 2001, is read against his recorded history it leads to the inescapable conclusion that the appellant has consistently engaged in defrauding other people over most of his adult life.
[5] The probation report indicates little hope of genuine reform on his part. To the contrary, the probation officer assesses the appellant as a “hardened recidivist offender”, as the following extract from his report illustrates:

The Court’s attention is drawn to the fact that the Community based sentences that were imposed in the past [have] not had the desired effect as Mr Singh has continued to offend with impunity. In my opinion and to put it bluntly this man is a compulsive thief and a habitual liar who preys on innocent people. Enquiries reveal that he has a serious gambling addiction problem that needs to be addressed. Until he recognises that fact nothing can be done to assist him.

[6] On the basis of the above assessment, the probation officer concluded that the appellant posed an ongoing risk to the community and stated:

This man while polite and courteous during the interview gave cold hard calculating answers that were designed to lessen the impact of his offending. He accepts no responsibility for his actions and displays a could not care less [sic] attitude towards his victims. Addressing his offending behaviour would require a high level of motivation to be sustained in the longer term. Given Mr Singh’s low motivation and extensive offending history, coupled with his overt lack of victim empathy, his risk of re-offending is considered to be high.

[7] The appellant also has outstanding fines and reparation from previous offending amounting to some $12,700. He has been making payments in reduction of that debt at the rate of $10-20 per week but had repaid only about $3,000 by the time this appeal was heard.
[8] On the issue of reparation the sentencing Judge said:

There has been talk by counsel of a willingness on the part of Mr Singh to make reparation. Like a number of submissions which I have heard this morning that extends to the outer limits that which can properly be said on the material with which counsel truly has to work. Mr Singh at the moment has $10,200.00 of outstanding reparation from his previous criminal offending. It has been outstanding for well over two years. In addition, he has $2,000.00 odd of fines outstanding which have been outstanding for some time.

The Probation Officer ... also understands that Mr Singh has had substantial savings. More than would be sufficient to meet his reparation obligations if he was so willing. Mr Singh through his counsel adopts the interesting strategy today of simply denying point blank any knowledge of the accounts or the money which has gone through them. It is not possible for me to resolve this dispute of facts. One possibility is to postpone this case, but it has already had its fair share of the Court’s time. There is a more simple and pragmatic approach available. Mr Singh has for two years had something in the order of $10,000.00 worth of reparation outstanding. It remains outstanding. That, in my view, speaks for itself about the bona fides of any promises which he now makes to pay reparation. I understand that he has “someone available in Court” today who could make good the present damage. That kind of promise would carry considerably more weight with the Court if I were informed that Mr Singh has a receipt from the Registrar in his pocket for what was owing today. As with his efforts toward other reparation, completed actions are considerably more valuable than words. So far as completed actions are concerned, we have seen very little from Mr Singh.

...

There can be absolutely no discount for remorse. None is apparent in any respect, either by stepping in to do something about reparation or by admitting responsibility.

[9] In determining a sentence of two years imprisonment as appropriate and refusing leave to apply for home detention, the Judge emphasised the “chronic” and “compulsive” nature of the appellant’s dishonesty. He found the principle of deterrence for the purpose of protecting the community and the commercial community in particular to be the dominant sentencing consideration. A deterrent sentence would spell out the wrongness of this type of offending and also remove the appellant from circulation for a significant period of time. The Judge also took into account the fact that the appellant had been issued with his most recent final warning only 12 months prior to this offending. The Judge was however careful to sentence only on the basis of the 13 guilty verdicts before him and put aside as irrelevant the 40 similar charges yet to be tried.
[10] On appeal the central issue was whether the sentencing Judge had erred in fact and in law by dismissing the appellant’s offer to pay reparation, instead sentencing him to a term of imprisonment without making any order for reparation. The error of law was said to have occurred because the Judge failed to apply the provisions of s10(1)(a) of the Sentencing Act 2002 (“the Act”), which require a sentencing court to take into account any offer by an offender to make amends. Mr Stone submitted that the appellant’s offer to make reparation through a friend, who was “available in court” at the time of sentencing, should have been accorded greater importance by the Judge. Instead the Judge had over-emphasised the lack of “measures taken” or “remedial action taken” in terms of s10(1)(d) and (e), rather than giving weight to the appellant’s offer of reparation.
[11] Mr Stone further submitted that s10(1)(a) (requiring the Court to take an offer of amends into account) has to be interpreted consistently with the purpose expressed in s7 of the Act, which is:

• (b) to promote in the offender a sense of responsibility for an acknowledgement of, that harm

[12] The error of fact was said to be the Judge’s view that the appellant was not bona fide in his promise to pay reparation because he had not satisfied the reparation order outstanding from his previous offending. Mr Stone advised us that the appellant has in fact been making regular payments in reduction of this and he produced a payment schedule in evidence. He submitted that the Judge could have exercised the option of adjourning this sentencing until full reparation had been paid by the appellant for his previous offending: this to test the genuineness of his offer to make amends. To simply discount the appellant’s offer and sentence him to two years imprisonment without any further order for reparation was an error of both fact and law.
[13] In essence the argument on appeal was directed to a lack of balance achieved in weighing the competing tensions in s7(1)(f) of the Act (the need for deterrence) and in s8(g) (which requires the Court to impose the least restrictive outcome appropriate in the circumstances). As Mr Stone acknowledged, however, the balancing of those two principles has long been fundamental in the sentencing exercise: the Act simply records this in legislative form.
[14] In relation to home detention, Mr Stone argued that the Judge had omitted to refer to the criteria in s97(3) of the Act, which raise a presumption in favour of home detention and submitted that whilst the Judge may have been correct in stating that the appellant “must be taken out of the community”, home detention could still provide the level of protection the community requires. In summary, Mr Stone’s argument was that if the Judge had correctly considered the criteria under the Act he would have granted the appellant leave to apply for home detention.

Discussion

[15] Whilst this may be the first occasion upon which the appellant has been sentenced to a fulltime custodial sentence, he can hardly be described as a ‘first offender’ for whom the “clang of the prison gate” will provide the real deterrent, so that the length of any sentence to be imposed assumes less importance. The appellant has demonstrated himself as a calculating and unrepentant fraudster who has amassed 39 dishonesty convictions on five separate occasions spanning a decade. Leniency has been extended to him by sentencing courts on previous occasions and the delivery of more than one final warning to him has clearly made little impression.
[16] We are unimpressed by the appellant’s offers to make amends by now fulfilling all of his reparation obligations and we share the Judge’s view that if he were to have produced a receipt to us for at least the outstanding amount of reparation, the provisions of s10(1)(a) would assume more prominence. We further share the Judge’s view that this is not an appropriate case in which to have adjourned sentencing until any offer by the appellant to make amends was fulfilled.
[17] Although the Judge did not articulate a starting point for sentence, this is hardly surprising given the complete absence of any mitigating features which might require a discounting from a starting point. Features such as acknowledgement of guilt or expressions of remorse are simply absent in the appellant’s case. Adopting therefore a pragmatic approach, the Judge took the simple expedient of assessing the appellant’s offending in the round and determined an appropriate sentence of two years imprisonment on the basis of his wrongdoing and in light of his previous convictions. Deterrence for the protection of the public was his predominant consideration.
[18] In the circumstances, such an approach was perfectly valid and cannot be criticised. There is, in any event, no readily discernible sentencing pattern in cases concerning similar dishonesty offending. We have taken, however, the opportunity of perusing a number of cases, including some helpfully submitted by counsel and these demonstrate that the circumstances of such offending can vary greatly: also that the sentencer is often dealing with a mix of dishonesty and other more serious offending, such as burglary. The following small selection of cases does however give some guidance as to an appropriate sentencing range where similar offending against s229A Crimes Act 1961 is involved.
[19] In Matika v Police [2000] NZHC 332; [2000] 2 NZLR 625, the appellant pleaded guilty to 56 charges relating to dishonesty offending committed over a period of 10 months and involving loss to the victims of $42,152 (offences against s229A and s246 Crimes Act 1961). His offending followed a pattern of stealing wallets and then withdrawing money by using the credit cards and cheques in the wallets. The appellant was aged 33 years at the time and had an extensive list of more than 100 previous convictions for dishonesty offending. He was on parole when this current offending commenced, having been recently released from a sentence of two years imprisonment for fraudulently using a document, shoplifting, theft and receiving. A starting point of five years imprisonment was adopted by the sentencing Judge and an end sentence of three years imprisonment imposed, after the appellant’s guilty pleas were taken into account. The sentence was upheld on appeal to a Full Court of the High Court.
[20] R v Harvey (CA349/00, 7 December 2000) concerned 29 charges of using a document, two charges of forgery and one charge of theft. The appellant, who was employed as the caregiver of a tetraplegic person, forged the victim’s signature on an authority form for his bank account and over a period of 11 months withdrew a total of $135,000 from the account. The appellant also obtained a cashflow card over the account in her own name and also stole some personal items from the victim. A starting point of three years imprisonment was adopted by the sentencing Judge, with a discount of nine months allowed for the guilty pleas. The sentence was upheld on appeal to this Court.
[21] In R v Townhill (CA392/00, 7 December 2000) the appellant pleaded guilty to four charges of using a document (s229A Crimes Act 1961) involving a total of $21,000 worth of property. The appellant used a stolen chequebook to deposit a total of $21,092 into his own account. Four separate transactions were involved, each to the value of around $5,000. None of the money was recovered. The appellant was described as a 39 year old “recidivist” offender who had been sentenced to a variety of sanctions, ranging from community-based sentences to short terms of imprisonment. At the time of sentencing he owed over $20,000 in reparation. The sentencing Judge was of the view that a deterrent penalty was necessary and sentenced the appellant to 18 months imprisonment and refused him leave to apply for home detention. The starting point for the sentence is not evident from the judgment but assuming a discount for the guilty pleas, a starting point of at least two years is indicated. The sentence was upheld on appeal to this Court.
[22] In R v Whitelaw (CA392/01, 21 February 2002) the appellant entered late pleas of guilty to four charges of false pretences and obtaining credit by fraud and one charge of using a document to obtain a pecuniary advantage (s229A Crimes Act 1961). A total of $4,079 was involved. He had in excess of 80 previous convictions, about 60 of which were for dishonesty. He had received previous terms of imprisonment, including two terms of imprisonment which had been suspended. A sentence of 18 months imprisonment was imposed and leave to apply for home detention refused. The sentence was upheld on appeal to this Court. As in Townhill a starting point for the sentence is not evident from the judgments.
[23] Le’au’anae v Police (AP92/02 HC Auckland, 16 August 2002, Rodney Hansen J) was an unsuccessful appeal to the High Court from a sentence of 18 months imprisonment imposed on 20 charges of using a document to obtain a pecuniary advantage (s229A Crimes Act 1961). Leave to apply for home detention was refused. The appellant had opened bank accounts and obtained credit card facilities using assumed names and false identities. The total sum defrauded was $63,479.30. The offending had taken place immediately prior to and following his conviction on six charges of theft in May 2000, for which a sentence of eight months imprisonment suspended for one year and eight months periodic detention had been imposed. Again a starting point for the sentence is not evident from the judgment but assuming a discount for guilty pleas and the appellant’s acknowledged remorse, a starting point of at least two years is indicated.
[24] Having regard to the total value of around $3,000, we have concluded that a sentence of two years imprisonment is outside the acceptable range for the appellant’s current offending and is therefore manifestly excessive. Our view in this regard is reinforced by our perusal of the above cases. We do not accept that the Judge erred in law or in fact by disregarding the appellant’s offer to make amends or by considering the principle of deterrence and protection of the public to be paramount in this case. However, the length of sentence imposed is too great for the offending itself: this is so, even when regard is had to the appellant’s history of similar offending.
[25] Whilst the adoption of a starting point is not always necessary in a sentencing exercise, the sentence finally determined must reflect the overall criminality. In our view, a sentence of 18 months imprisonment is appropriate for this particular episode of offending and we are further satisfied that leave to apply for home detention was rightly refused. The nature and seriousness of the appellant’s persistent offending and the likelihood of his committing further such offences if detained under home detention rather than in a prison displace the presumption in favour of home detention under s97 of the Act.

Result

[26] The sentence of two years imprisonment imposed is quashed and in lieu a sentence of 18 months imprisonment imposed on each charge. The appeal against the refusal of leave to apply for home detention is dismissed.

Solicitors:
Crown Law Office, Wellington