[1] Mr Simpson pleaded guilty in the Auckland District Court to four charges of obtaining a pecuniary advantage by deception. He was sentenced by Judge Thorburn to four years imprisonment. He appeals against his sentence.

Background

[2] The offending took place between 16 October 2006 and 17 May 2007 while Mr Simpson was on parole following release from a sentence of three years imprisonment imposed in 2004 for similar offending. Three of the four offences were committed while he was on bail following his arrest for the first offence in time.
[3] Mr Simpson’s modus operandi in each case was the same. He made “cold calls” at the homes of the victims, all of whom were elderly men and women. He introduced himself as a roofer and offering to carry out repair work on the victim’s roof. He persuaded them to pay him “deposits” for the work. In some cases he returned and obtained further payments on account. An engaging manner enabled Mr Simpson to win the confidence of the victims. They invited him into their homes and, on some occasions, allowed him to accompany them to the bank to withdraw the money.
[4] Apart from minor works in two cases, the agreed repair work was not undertaken. By this means Mr Simpson fraudulently obtained a total of $19,200. After complaints to the police and publicity on the Fair Go programme, a total of $6,200 was refunded.
[5] The victims were aged between 70 and 88 years. Three lived alone. The wife of the fourth victim was undergoing treatment for cancer at the time. All were on fixed incomes and could ill afford to lose the money. All have been embarrassed by the offending and have lost confidence and trust in others as a result.
[6] Mr Simpson was rightly described by Ms Markham as an inveterate fraudster. At the age of 38 he has 106 convictions, of which 78 since 1994 are for fraud offences. A further 22 convictions are for theft and other offences of dishonesty. According to a psychological report, prepared for the purpose of his sentencing, many of his victims have been elderly but among them are work managers and family members, including his father.
[7] Mr Simpson has been diagnosed as depressive and suffers from a gambling addiction. He told the psychologist that he has now reached “rock bottom” and understands the need to obtain help for his problem gambling. However, the psychologist notes that he has made similar claims in the past and has previously undergone counselling for problem gambling. The psychologist sees Mr Simpson’s anti-social attitudes and beliefs and entitlement beliefs as more likely to be the cause of his offending than his gambling addiction.
[8] Mr Simpson is assessed as at high risk of similar reoffending by way of fraud and theft and is thought unlikely to respond to low or medium intensity interventions. Among the risk factors identified by the psychologist are personality characteristics; a long history of pathological lying; poor response to sanctions and previous treatment interventions; and a lack of true motivation to change.

Sentencing decision

[9] The Judge identified as aggravating features the vulnerability of the victims and the level of premeditation involved. He referred to Mr Simpson’s “incredibly unspeakably devious plan” and to his offending as “about as serious as it can get”. He described Mr Simpson as “a public menace” and identified the protection of the public as of paramount importance for sentencing purposes.
[10] The Judge did not identify a starting point. He said that he thought a five year imprisonment range was “perfectly tenable” but had settled on four years because “logic and rationale means that the sentence must be more than the last one ...”. He made it clear that in determining a final sentence of four years, he gave Mr Simpson credit for his guilty pleas and, to the extent that he could, his expressions of remorse. He also referred to confidential material before the Court which he would also take into account.

Grounds of appeal

[11] Mr Heaslip submitted that the sentence was manifestly excessive. He said the starting point adopted by the Judge must have been too high and it must also be inferred that insufficient credit was given for mitigating factors. He submitted that an appropriate starting point would have been the three year sentence imposed on Mr Simpson for similar offending in 2005. That sentence was upheld on appeal in Simpson v Police HC AK CRI 2005-404-000068 12 August 2005 Venning J. Mr Heaslip accepted that an uplift to take account of Mr Simpson’s previous offending was warranted but argued that it could reasonably have been restricted to six months. After giving proper allowance for mitigating factors, he argued for a sentence of two years imprisonment and for consideration to be given to substituting a sentence of home detention.
[12] The mitigating factors included assistance provided to the police, details of which were in confidential material referred to by the Judge. Since sentence Mr Simpson had claimed to provide further assistance, for which Mr Heaslip submitted he should be given further credit on appeal.

Discussion

[13] It seems likely that the Judge had in mind a starting point of at least five years. The discount he gave for mitigating factors depends on the starting point he had in mind. It must be inferred it was in the range 20-25 per cent. The guilty pleas came too late for a generous discount to be applied. Mr Simpson’s expressions of remorse were of doubtful sincerity and could not have counted for much. The Judge referred obliquely to the confidential material which he said he had taken into account. That was a letter from a police officer referring to the information provided by Mr Simpson. He described it as “background intelligence” which had not brought results at the time of sentencing. The assistance would not have warranted any significant further discount.
[14] In our view, a starting point of five to five and a half years imprisonment is not excessive in the circumstances. Indeed, it could be seen as lenient in the context of Mr Simpson’s history of offending, the sanctions previously imposed on him and the need to protect the community. He is an unscrupulous deceiver who found easy targets in the elderly and vulnerable. Prison sentences have failed to deter him. In 2002 he was sentenced to three years and six months for multiple offences of dishonesty. The sentence of three years imposed in 2005 was for cheating an 80 year old woman of $13,300 when Mr Simpson promised but failed to fix her roof. He had only been released from that sentence for a matter of months before he offended again in exactly the same way. He was arrested and charged but went on to commit three further offences.
[15] The protection of the community assumes added importance in cases of recidivist offending against vulnerable members of the community: R v Ward [1976] 1 NZLR 588 (CA). See also Woodcock v Police HC CHCH A140/02 20 December 2002 Panckhurst J, a case referred to by the sentencing Judge, in which a sentence of four and a half years imprisonment was upheld for recidivist offences of dishonesty against elderly victims involving a total sum of about $6,000. In our view, a starting point in the range indicated gives appropriate recognition to the need for protection of the community while maintaining a reasonable relationship with the gravity of the offending: Ward at 591.
[16] We have already indicated that on the information available to the Judge, sufficient discount was given for mitigating factors. The only additional consideration arises from claims made by Mr Simpson that the assistance given to the police before sentence has borne fruit and that since sentence he has provided further assistance to the police. Particulars of this assistance were set out in an affidavit filed in support of the appeal which was responded to by a police officer who had most dealings with Mr Simpson. In an attempt to resolve differences between the two accounts and to determine the nature of the assistance, we invited counsel to confer and file a joint memorandum. That has now been received.
[17] The memorandum discloses that information provided to the police by Mr Simpson prior to sentence was used (with information from other sources) in the execution of a search warrant which led to the conviction of three offenders for relatively minor offending. It is accepted that the information provided by Mr Simpson was instrumental to the detection of the offending. However, information he has provided to the authorities since sentence has either been useful as background intelligence only or, at this stage, has not proved to be of any material value.
[18] It remains to consider whether the developments since sentence warrant an adjustment to a sentence which, on the information available to the sentencing Judge, was entirely appropriate. In exceptional circumstances, factors which have occurred since sentence may be taken into account on appeal: R v Hadfield CA337/06 14 December 2006 at [10]. We accept that the unforeseen benefits arising from assistance given to the police are in that category.
[19] The extent of any discount to be given for such assistance depends primarily on its value but may also be affected by such considerations as the degree of personal risk involved and whether the offender has suffered adverse consequences as a result: R v Grace [2008] NZCA 243 at [14] – [18]. The fact that the offender may be motivated by genuine remorse may also have relevance: Grace at [14] and [20].
[20] We agree with Ms Markham that the appellant’s election to relay further information to the authorities following sentence is commendable but, in light of his background and the psychological report, it does not reflect genuine remorse or contrition. There is nothing before us to suggest that the assistance rendered by Mr Simpson has exposed him to any significant degree of personal risk or that it has had any other adverse consequences for him. Any discount, then, is to be assessed by reference to the fact that part of the information provided led to successful prosecutions for minor offending.
[21] Ultimately, however, as Ms Markham reminded us, the question for the Court is whether the sentence was manifestly excessive, taking into account all circumstances, including events which have occurred post-sentence. A sentence will not be reduced on appeal to take account of a factor not allowed for at sentence if the sentence is appropriate in all the circumstances: see, for example, R v Cameron CA319/99 25 November 1999, where it was common ground that the sentencing Judge had failed to allow for assistance given by the appellant at the trial of her co-accused. This Court held the sentence gave sufficient allowance for all factors, including the assistance given by the appellant and dismissed the appeal.
[22] We have reached the same conclusion in this case. In our view, a sentence of four years is not manifestly excessive in all the circumstances. The assumed starting point adopted by the Judge was, if anything, lenient. The discount he gave for mitigating factors was generous. The modest allowance, to which Mr Simpson would have been entitled had the benefits of the assistance he gave been known at the time of sentence, does not warrant any adjustment to the end sentence of four years.

Comment

[23] Much of the confusion that arose in this case could have been avoided if counsel appearing at sentence had followed the process stipulated in Practice Note – Sentencing 2003 [2003] 2 NZLR 575, which sets out at para 4 the way in which assistance to the police should be brought to the attention of a sentencing Judge. It reads:

4. Assistance to the authorities

4.1 Where the prisoner has given assistance to the police or other authorities and it is desired that such assistance be taken into account at sentencing on a confidential basis, counsel should confer and prepare a joint memorandum for consideration by the sentencing Judge. Such memorandum should be placed in a sealed envelope and be filed at least two clear working days before the sentencing date. In such cases the confidential information should not be referred to in open Court, but the Judge will take account of it.
4.2 If the confidential information is of particular sensitivity and is known only to Crown counsel, a sealed envelope memorandum should be filed and the Judge shall determine the nature of any disclosure.
[24] In this case the information was treated as coming within [4.2] and was not disclosed to defence counsel. This was incorrect as the information was not of particular sensitivity and should have been the subject of a joint memorandum in terms of [4.1].
[25] It would also have assisted in the appeal process if the sentencing Judge had followed the procedure suggested in Hadfield, in which this Court set out the way in which sentencing Judges should record reasons for discounting a sentence to take account of assistance the offender has given to the authorities.

[16] There is another practical matter which was raised on this appeal. Traditionally sentencing judges in their sentencing notes have not referred to the assistance which the offender has given to the authorities or to the discount the offender has derived therefrom. The sentence under appeal is no exception. The problem with current practice is that, if the sentence comes on appeal, the Court of Appeal has to guess how the judge reached his or her conclusion.

[17] The rationale behind current practice is clear: offenders who give assistance to the authorities frequently do so at considerable personal risk. Nothing should be done to discourage the giving of assistance to the authorities; assisters must be protected, as far as reasonably possible. This may mean that sometimes it will be appropriate for sentencing judges to refrain from detailing in public the assistance the offender has given or promised. At the same time, however, this court needs to be properly and fully informed as to how the sentencing judge reached his or her discount figure.

[18] We think the solution is for the sentencing judge to record his or her reasoning on the assistance point and any discount in respect thereof in a separate confidential memo. This could be kept, along with the police advice as to assistance, in a sealed envelope on the file marked “Not to be opened save by leave of a judge”. The envelope could then be made available to the Court of Appeal in the event of an appeal against sentence.

Result

[26] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington

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