The Queen v Wakeren [2008] NZCA 492 (24 November 2008)

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The Queen v Wakeren [2008] NZCA 492 (24 November 2008)

Last Updated: 3 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA58/2008 [2008] NZCA 492THE QUEEN

v

RONALD VAN WAKEREN

Hearing: 14 October 2008

Court: Arnold, Hugh Williams and Wild JJ

Counsel: C P Comeskey and J Soodram for Appellant
M T Davies for Crown

Judgment: 24 November 2008 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] Mr Van Wakeren appeals against a sentence of two years and three months’ imprisonment imposed on him in the District Court at Auckland by Judge Gittos, after he pleaded guilty to one count of forgery: DC AK CRI-2004-004-021409 1 February 2008.
[2] The Judge’s sentencing starting point of two years imprisonment is accepted. The appellant challenges:

(a) As excessive, the Judge’s uplift of one year to reflect aggravating factors, in particular Mr Van Wakeren’s previous offending; and

(b) As inadequate, the discount of nine months for the guilty plea and assistance provided by Mr Van Wakeren to the Police.

[3] Overall, the resulting sentence of two years three months imprisonment is challenged as manifestly excessive.

Background

[4] The charge resulted from Mr Van Wakeren’s involvement in a scheme to defraud the HSBC Bank of $180,000. On 15 October 2003 Mr Van Wakeren applied in the name of one of the complainants to rent a private post box at Ponsonby for 12 months. He gave full particulars of that complainant’s name and address and forged his signature. He was allocated a post box in that complainant’s name. That forged application was the basis for the charge.
[5] One of the other fraudsters then applied, also in the same complainant’s name, to redirect the two complainants’ mail from their Auckland home to the post box Mr Van Wakeren had rented. As authority for the mail re-direction application, this other person used a stolen New Zealand passport which had been altered to give that complainant’s particulars.
[6] On 23 October 2003 one of the fraudsters contacted the HSBC Bank, claiming to be one of the complainants, and arranged to meet a mobile mortgage manager at a coffee shop in downtown Auckland. This fraudster completed an application in that complainant’s name to borrow $180,000 on the security of the complainants’ Auckland residential property.
[7] This fraud was discovered when the complainants inquired of the Post Office about non-receipt of their mail. The discovery was just in time: the Bank’s approval of the loan application was literally ‘in the mail’, addressed to the private post box at Ponsonby.

The sentencing starting point

[8] Although he contended that it was the maximum available, Mr Comeskey did not challenge the Judge’s sentencing starting point of two years imprisonment. The Judge noted that the Crown had contended for “three-three and a half years, (Mr Van Wakeren’s) counsel for something very substantially less than that”. He categorised his two year starting point as one “really quite ... generous” to Mr Van Wakeren. We agree with that.

The 50 per cent uplift

[9] Mr Comeskey accepted that an uplift in sentence was appropriate, in particular to reflect Mr Van Wakeren’s previous offending. But he contended that a 50 per cent uplift was “just way out”, no more than 25 per cent being justified. Mr Comeskey supported that submission by referring to this Court’s decisions in R v Casey [1931] NZLR 594 and R v Kengike [2008] NZCA 32.
[10] Rather than looking at specific uplifts in other cases (and those in Casey and Kengike are not readily apparent), we think it more helpful to look at the rationale for increasing sentences to reflect the prisoner’s previous offending. It was explained in this way by this Court in R v Ward [1976] 1 NZLR 588 (at 591):

... it has long been considered proper for a court when dealing with the class of offender we are discussing to enlarge the period of confinement beyond that which it would give the offender had he not had a history of persistent offending and were it not thought necessary to protect the public from his depredations. But at the same time the courts have struggled to ensure, in the words of Sir Michael Myers CJ, that the sentence imposed bears “some relation to the intrinsic nature of the offence and the gravity of the crime”.

[11] The words of Myers CJ which are quoted come from his judgment for the Court of Appeal in Casey where he said (at 597):

... We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner’s previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a prediliction to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

[12] The passage from Ward was cited in R v Piper CA345/05 12 September 2006, where this Court quashed a 100 per cent uplift in sentence, substituting a 50 per cent one. Mr Piper had appealed against a sentence of four years imprisonment imposed on him in 2006 for possession of Class B and Class C controlled drugs for supply. He had five previous convictions for drug dealing, and had been sentenced to five and a half years imprisonment in December 2000 for “very serious cannabis dealing”. This Court accepted the sentencing Judge’s description that Mr Piper had “a very bad record” and that protection of the community had to “loom large in the sentencing process”. But the Court reduced the sentence, noting that: “An increase to the penalty otherwise appropriate is permissible, but not to the point where the end sentence is out of balance with the gravity of the offending” (at [9]).
[13] Against that background, we turn to Mr Van Wakeren. Amongst about 160 convictions for dishonesty he had amassed over the last 20 years (he was 38 on 3 November this year) were 84 for fraud and 55 for burglary and receiving. Nobody could contest the Judge’s description of him as:

[12] ... a recidivist offender in terms of fraud and dishonesty offending of notable proportions.

[14] Of particular concern was that the attempted fraud on the HSBC Bank, of which the forgery was a component, was at least the third time Mr Van Wakeren had been involved in such a fraudulent scheme. He was sentenced to two and a half years imprisonment on 31 January 2002 for his involvement in two similar schemes which defrauded two different trading banks of $110,000 and $90,000 respectively. The current offending occurred shortly after Mr Van Wakeren was released from prison for that offending.
[15] Exacerbating the Judge’s concerns was the assessment, in the Pre-Sentence Report, that Mr Van Wakeren was at high risk of reoffending, reflecting low motivation to cease committing crimes of dishonesty. Mr Van Wakeren showed no remorse, the Judge remarking that Mr Van Wakeren claimed “there are no victims” of his latest attempted fraud.
[16] A further point about Mr Van Wakeren, as surprising as it is concerning, is that he accepted he had had a good upbringing in a family which the Judge described as “honest, hardworking, industrious business people, church goers and in all respects decent citizens”.
[17] This offending was just one more chapter in a lengthening history of convictions for frauds and other dishonesty on the public and on banks. As we have said, Mr Van Wakeren showed no remorse for those frauds – indeed, he did not even regard those he had defrauded as victims. Given all that, we can see no fault in the Judge applying an uplift of one year or 50 per cent to protect the public for as long as reasonably possible from Mr Van Wakeren.

Credit for guilty plea and assistance

[18] The Judge allowed Mr Van Wakeren a discount of nine months (25 per cent) for his late guilty plea and assistance to the Police. Although the Judge did not apportion the discount, the appellant suggests it must have been about 10 per cent for his guilty plea, the balance for his assistance to the Police.
[19] On that assumption, the appellant submits that both components were manifestly inadequate and that the total credit or discount should have been in the range 30 – 40 per cent.
[20] It is necessary to recount what occurred by way of assistance. Burglars who broke into the University of Auckland on or about 3 January 2007 stole a very old and valuable Bible, some volumes of poetry attributed to Colin McCahon and a Goldie painting. The appellant returned the McCahon volumes to the Police on 19 July, and the Bible on 5 October.
[21] The appellant’s trial was scheduled to begin on 16 October. That morning the appellant sought, for the second time, a sentencing indication. A first indication had been given by Judge Lance QC on 14 October 2005, but Mr Van Wakeren was subsequently charged with additional offences. In seeking a further indication, the appellant, through his counsel, Ms M A Kennedy, told the Judge that he was in a position also to return the Goldie painting to the Police. He asked what sentence the Judge would impose on the basis that he did that.
[22] Judge Gittos was singularly unimpressed. This is what he said:

[15] It seems to me that the position is this. To seek a reduction in sentence on an unrelated matter on the basis that the prisoner has been of significant assistance to the police in the resolution of some other unrelated crime, that is to say, to seek a credit by way of mitigation for that positive behaviour, is not an inappropriate thing to do and it may be an appropriate matter to be given consideration depending upon the facts before the Court.

[16] A distinction however has to be made between voluntary assistance, with the resolution of some other crime, and an attempt to draw the Court into what is essentially an unseemly bargain for the ransom of valuable stolen property by way of invoking the process of a sentencing indication.

[17] That in my view is a wholly inappropriate matter to put before the Court and is little short of an attempt to suborn the administration of justice.

[18] If these valuable items are returned to the police, through the instrumentality of this prisoner, and he seeks some credit for his assistance in resolving those issues then well and good and the matter may, no doubt, be considered as a mitigating factor if sentencing on this present charge becomes something that has to proceed.

[19] The Court however should not, and cannot, be drawn into some unseemly bargaining or ransom negotiation for stolen property and it would be quite inappropriate to approach an application for sentencing indication made on the morning of the trial of this matter on that sort of basis and I entirely decline to do so.

[20] This trial will need to proceed unless Mr Van Wakeren wishes to revise his attitude to plea, Ms Kennedy, in which case all matters that can properly be taken into consideration will be taken into consideration but on the information in front of me I cannot indicate that a sentence, other than one of imprisonment, would be appropriate on conviction.

[23] In the face of that indication, Mr Van Wakeren asked to be arraigned. The indictment contained four counts, all stemming from the fraudulent scheme described at [4] – [7] above:

• Count 1: Making a false document intending to use it to obtain a pecuniary advantage, namely a loan in the name of the complainant.
• Count 2: Making a false document, namely a private box application form, knowing it to be false.
• Count 3: Using the private box application, knowing it was a forgery.
• Count 4: Conspiring with a person unknown to obtain credit by deception.

[24] Mr Van Wakeren pleaded guilty to count 1. The Crown then offered no evidence on the remaining three counts and the Judge discharged Mr Van Wakeren on those, pursuant to s 347 of the Crimes Act 1961. That was in terms of a written agreement dated 16 October 2007, signed by Crown counsel, Ms Kennedy, Mr Van Wakeren and also by Mr Comeskey who was described as “police/liaison counsel for mitigating factors”. The agreement recorded:

1. That the police through a commissioned officer write a letter asking for leniency on the basis that the defendant has organised the return of three national artworks.
2. That the Crown agrees to a 347 application on the remaining counts (2, 3 + 4).
3. The police agree to an amnesty on any charges that arise from the acquisition and/or return of the art works.
4. That the Crown agree that although the plea of guilty was on the day of trial, the plea had been under negotiation for several months pending the trial and that this is a factor in mitigation.

[25] The following day, Mr Van Wakeren returned the stolen Goldie to the Police. The Police then addressed a letter, dated 17 October 2007, to the Presiding District Court Judge. The letter detailed the theft of the three items we have mentioned in [20]. It gave their monetary values, and emphasised their cultural value. The letter then detailed Mr Van Wakeren’s assistance in the return of those items. It mentioned minimal damage to the McCahon poems, but considerable water damage to the Bible, which could not be repaired to its original condition.
[26] The letter recorded that Mr Van Wakeren had stated that he was not responsible for the burglary and/or receiving, other than to aid in the return of the three items. It advised that the Police had given Mr Van Wakeren a letter advising that the Police had exercised their discretion not to prosecute Mr Van Wakeren for any or all offences he may have committed in respect of his dealings with those items. The letter was signed by a Detective Inspector with the Auckland City District Police.
[27] In sentencing the appellant, the Judge acknowledged this assistance, the value of the items, and that the community had gained significantly from their return. He referred to the content of the letter from the Police referred to in [25]. He continued:

[31] The police indicate that, in consideration of return of those items, they will not be charging you with any offence in relation to the burglary of the University where these items were taken from. That in itself is a considerable reward for their return because plainly it would seem to me you must have been, if not part of the action then well known to those who were, and at least in peril of prosecution as a receiver.

[32] So while I think that it is something that you can be given some credit for I am very cautious about the basis on which that should be approached. I am by no means wishing to give any indication to you or anybody else, that those who go out and steal items of significant heritage value like that, can then use them as some sort of a ransom tool.

[33] Bearing that consideration in mind and giving what credit I can, and it can only be very little indeed for a plea of guilty, I am persuaded to the view that a finite sentence for this offending is one of two years and three months imprisonment and that is the sentence that is imposed.

[28] We have set all of this out to demonstrate the most unusual circumstances behind the sentencing discount allowed by the Judge.
[29] In no way do we wish to diminish the importance of information provided to the Police in relation to criminal offending, and the need to mark that with an appropriate discount in sentence. Assessment of what is the appropriate discount will always depend on the circumstances of the case, but it could range up to 60 per cent, as in R v Hadfield CA337/06 14 December 2006; R v Stark CA104/06 31 July 2006 and R v Zhou CA314/05 1 November 2006. However, this was far from the usual case of that sort. There were at least the following distinguishing features:

(a) The assistance was unrelated to the offending for which Mr Van Wakeren was being sentenced;

(b) The assistance did not result in the apprehension of any person for criminal offending;

(c) From what Mr Comeskey told us, we gather that Mr Van Wakeren was able to gain the reduction in sentence without encountering any of the risks that often result from criminals assisting the Police, such as by giving evidence for the Crown. Coincidentally, another of the appeals we heard on the same day as this one, demonstrated the risks we are referring to. It involved an appeal against the sentence imposed when one prisoner assaulted and seriously injured another one he believed was a “nark”;

(d) Mr Van Wakeren gained a discharge on three of the four counts he faced, when the Police agreed not to offer any evidence against him; and

(e) He also gained the agreed amnesty from prosecution in relation to any part he may have had in the burglary of the three items from the University, or his receiving them from the burglars.

[30] Given the unusual circumstances we have outlined, we cannot regard the Judge’s nine months (25 per cent) discount for the appellant’s guilty plea and assistance as in error. But we reiterate that our view would be different if the assistance provided was of the usual type, carrying the related risks, and particularly if it resulted in the apprehension of an offender(s).

Result

[31] As none of the grounds of appeal has succeeded, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington