[1] In June and October 2009, the appellant pleaded guilty to fraud and passport offending committed between 1989 and 1993. The reason for the delay between the offending and the pleas of guilty was that after his arrest on the fraud charges in 1993, he had absconded while on bail (and in the course of doing so, obtained and used a false passport). He eventually returned to New Zealand voluntarily in March 2009 and surrendered to the authorities.
[2] Judge Bouchier sentenced him to three years imprisonment.[1] She also recorded at the end of her sentencing remarks that she had taken into account $10,000 reparation which we understand that the appellant had paid (or offered to pay) from funds which he had raised from friends.[2] It is not entirely clear from her remarks whether she intended to order reparation in that amount or was merely recording that this sum had been paid. For present purposes this is of no moment as it was not suggested by the Crown that the $10,000 had not been paid.
[3] The appellant now appeals against sentence and this is primarily on the basis that the Judge’s starting point for the offending (four years) was too high and her discount (of 25 per cent) for the reparation, voluntary return, surrender and eventual pleas of guilty was too low.

The background

[4] Between 31 March 1989 and 3 September 1992 the appellant defrauded the Department of Social Welfare by claiming welfare payments to which he was not entitled. Most of this offending consisted of him obtaining unemployment benefits by impersonation. To facilitate this impersonation, he had obtained the birth certificates of three children who had died in early infancy. He then assumed their identities. As well, he obtained benefits ostensibly payable to another person at a time when, to the appellant’s knowledge, that person was not entitled to receive payment (as he was living overseas).
[5] The police became alerted to this offending as a result of entirely different offending by the appellant involving him using automatic teller machines (ATMs) to withdraw money from the bank accounts of two other deceased individuals. When the police investigated the appellant in relation to the ATM offending, they found documents which alerted them to his employment benefit frauds.
[6] All of this offending gave rise to 51 charges of using a document to obtain a pecuniary advantage, three charges of obtaining a document to obtain a pecuniary advantage and one charge of obtaining by false pretences.
[7] The losses caused by the offending came to $182,008.06 of which the appellant obtained $85,815.42.
[8] While on bail for that offending, the appellant obtained a false passport (by impersonating yet another deceased person) and left New Zealand. This round of offending resulted in charges of forgery, unlawfully obtaining a document and impersonation.
[9] For the next 16 years the appellant lived a largely blameless life primarily in South America. In late 2007 or early 2008, the appellant, who was then living in Brazil, initiated contact with the New Zealand authorities with a view to returning to New Zealand and giving himself up to the police. The obtaining of genuine travel documents took some time and he eventually returned to New Zealand in March 2009. The appellant was arrested at the airport on his return and has been in custody since then.
[10] We say that the appellant’s life between 1993 and 2009 was only “largely blameless” because in 1996 he attempted, unsuccessfully, to obtain another false passport, this time from the New Zealand High Commission in India. We note in passing that we were not told how the appellant travelled between India and South America and what, if any, travel documents he used for this purpose and subsequently.
[11] The appellant entered guilty pleas to the fraud offending on 23 June 2009 and pleaded guilty on 2 October 2009 to the charges which arose out of the offending relating to the absconding. The apparent lateness of the pleas of guilty to the absconding charges is of no moment as it was due to prosecution delays.

The starting point

[12] Relevant to the starting point assessment are:

(a) The reasonably significant sums of money obtained as a result of the appellant’s fraud (a total of $182,008.06 of which the appellant’s share was $85,815.42). All of this is in 1989 – 1993 dollars. In current value terms the corresponding figures are in the order of $270,000 and $127,000.

(b) The persistence of the offending (over three and a half years).

(c) The comparative sophistication of the offending.

(d) The impacts of the offending going beyond the purely financial. The relatives of the dead infants whose identities the appellant had assumed were understandably distressed by the appellant’s behaviour.

(e) The offending associated with the appellant absconding while on bail, and in particular the obtaining and use of a false passport.

[13] There is the complicating factor that the fraud offending occurred at a time when s 6 of the Criminal Justice Act 1985 was in force. This section precluded the imposition of a full time custodial sentence for the offences committed by the appellant in the absence of special circumstances pertaining to the offence or the offender. It is, however, perfectly clear (as counsel for the appellant recognised) that the threshold for a full time custodial sentence was met in this case.
[14] We accept that the four years starting point adopted by the Judge was stern and this is particularly so by reference to the decision of the High Court (Heron ACJ and Ellis J) in Cole v Police[3] where the fraud offending involved was appreciably more significant in terms of the financial loss caused and sophistication, albeit without the aggravation of absconding while on bail (and associated offending). There the Court took the view that an appropriate starting point was between four and five years.[4]
[15] On the other hand, the totality principle means in practice that there is never going to be a linear calibration of sentencing outcome to financial loss and we are left with the view that a starting point sentence of four years imprisonment was available to the sentencing Judge, albeit “only just” as Mr Downs accepted. In saying that we are influenced by particularly R v Hapuku[5] where, for fraud offending which was broadly comparable in terms of financial impact but far less sophisticated than the appellant’s, this Court implicitly upheld the sentencing Judge’s starting point of three years and three months. An uplift of nine months for the offending associated with the appellant’s absconding on bail was open to the Judge.

Adjustment to starting point

[16] The issue in relation to this aspect of the appeal is whether the Judge’s allowance of 25 per cent for the reparation, the appellant’s largely exemplary post-1993 life, his voluntary return to New Zealand and the resulting pleas of guilty was sufficient.
[17] Fairness to the Judge (who dealt succinctly with this aspect of the case), requires us to note that at sentencing, counsel for the appellant only sought a discount in the range of 25 per cent to 33 per cent. Before us, counsel went into the issue (and the authorities) in far more detail than in the District Court.
[18] A substantial delay between offending and sentencing during which the offender has lived crime-free, can provide scope for the offender to seek a sentencing discount on the basis that he or she is a reformed character. Arguments of this sort are often enough advanced in cases of historical sexual offending (particularly of a one-off nature), a context in which they tend to receive only limited recognition. But there are a number of cases in which such arguments have fared very much better, even in circumstances where the offender absconded before trial and the delay invoked is directly attributable to the absconding. These cases include R v Moriarty,[6] R v Sutton,[7] R v Savage,[8] and R v Nepia.[9] In these cases the offenders received appreciable, and at times what might be thought to be quite extraordinary, leniency. We note in passing, however, that in other cases the courts have taken a sterner approach.[10] We also note that problems involved the sentencing of absconding but reformed and sometimes voluntarily surrendering offenders have occupied courts in other jurisdictions.[11]
[19] The most significant of the conflicting considerations are as follows:

(a) The appropriateness of recognising rehabilitation which has occurred since the offending, particularly where the offender has demonstrated that he or she is most unlikely to re-offend and that there is accordingly no need for specific deterrence.

(b) The utilitarian value of a voluntary return and the desirability of encouraging such returns and, associated with this, the desirability of providing a reasonably clear indication to those who have absconded as to the likely allowance which will be given for voluntary return and surrender; and

We see the last of these considerations as setting something of a cap on the extent to which the first two considerations can be appropriately accommodated.

[20] We recognise that in this case the appellant passed what has sometimes been referred to as “the ultimate test of surrender to the police”.[12] Accordingly, on the basis of some of the cases to which we have been referred, a very large discount, much greater than the 25 per cent given by the Judge, could have been justified. But these cases were all decided before the current structured approach to sentencing was developed. Under the approach taken by this Court in R v Hessell,[13] the maximum discount available for a prompt plea of guilty is one-third. As well, offenders who co-operate with the authorities might, in meritorious cases (usually involving substantial assistance and risk to personal safety), receive a discount of 55 to 60 per cent. Compared against current practice, the leniency extended to reformed absconders in the cases primarily relied on by Mr Boyack is well out of line.
[21] Hessell proceeds on the core assumption that the Courts should be consistent and thus predictable in the discounts to be made in relation to the post-charge conduct of offenders. On this approach, we can see no principled basis upon which the appellant can be treated as being better off by reason of his successful absconding than he would have been if he was arrested at the airport in 1993.
[22] The reality is that the appellant should have pleaded guilty to the fraud offending at the first reasonable opportunity, served whatever sentence was imposed and then led an exemplary life. It would be entirely wrong to give credence to the notion that an offender, by absconding, can avoid the essential step of serving a sentence which is appropriate for the offending, particularly when the absconding involves the commission of further serious offending (in this case passport fraud).
[23] Recognising that there is scope for a reasonable difference of opinion on how to treat the reformed absconder, we have concluded that the appropriate approach is broadly what was taken by the Judge here:

(a) To set a starting point sentence referable to the offending as a whole including that associated with the absconding.

(b) To equate the appellant’s subsequent exemplary life and voluntary surrender with a reasonably prompt plea of guilty.

[24] The Judge’s 25 per cent reduction for mitigating factors included allowance for the reparation of $10,000. Arguably, the total discount should have been slightly more than 25 per cent to accord separate recognition to the reparation. But given the extent of the total losses associated with the appellant’s offending, the amount of the reparation is so limited that any additional allowance would be de minimis.

Disposition

[25] As will be apparent from what we have said, we are left with the view that the starting point sentence was at the top end of the available range and that it would have been open to the Judge to have allowed a fractionally larger discount to reflect the reparation offered and/or paid. But given the necessarily open-textured nature of the sentencing exercise, the round figures primarily used by the Judge (four years and 25 per cent) and the amount of the reparation compared to the total losses, we have not been persuaded “that a different sentence should have been passed” (see s 385(3)(b) of the Crimes Act 1961). Accordingly, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Rogers (AKA) Hill DC Auckland CRI-2009-004-14474, 2 October 2009.

[2] At [37].

[3] Cole v Police [2001] 2 NZLR 139.

[4] At [10].

[5] R v Hapuku [2007] NZCA 368.

[6] R v Moriarty CA109/84, 10 August 1984.

[7] R v Sutton (1989) 4 CRNZ 667 (CA).

[8] R v Savage (1990) 6 CRNZ 627 (HC).

[9] R v Nepia HC, Auckland T 184/87, 17 November 1995.

[10] R v Kaitapu CA271/86, 20 March 1987; R v Meale CA29/91, 12 September 1991; R v Kopara CA301/92, 11 November 1992.

[11] R v Bird (1987) 9 Cr App R (S) 77; R v Shore (1992) 66 A Crim R 37 (NSW CCA); R v Howcher [2004] NSWCCA 179; (2004) 146 A Crim R 371(NSW CCA); R v Thompson (1989) 50 CCC (3d) 126 ( Alta CA).

[12] R v Meale CA29/91, 12 September 1991 at 5.

[13] R v Hessell [2009] NZCA 450.

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