Police v Thompson [2017] NZDC 12572 (13 June 2017)

Last Updated: 18 October 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-044-001826 [2017] NZDC 12572

NEW ZEALAND POLICE

Prosecutor

v

PETER JOSEPH THOMPSON

_Defendant

Hearing:	13 June 2017
Appearances:	Sergeant I McMeeking for the Prosecutor J Grainger for the Defendant
Judgment:	13 June 2017

_{NOTES OF JUDGE P J SINCLAIR ON SENTENCING}

[1] Peter Joseph Thompson, you are for sentence today on 13 charges of obtaining by deception. Each charge carries a maximum penalty of seven years’ imprisonment.

[2] A full summary of the facts spans some 21 pages, but in brief over a period of time you engaged in a series of fraudulent transactions with a number of people throughout New Zealand. To facilitate this fraudulent behaviour you represented yourself in a role which led the various victims to trust you and provide you with payments for vehicles or machinery. On each occasion the item purchased by the victim did not arrive. Between 3 May 2015 and June 2016 you engaged in

13 transactions involving 11 victims and involving sums of money ranging from between $1000 to $100,000. Your usual modus operandi was to place an advertisement for equipment or machinery, such as farming machinery, on behalf

_{of a company Excavator Parts via Trade Me, or speak to a potential purchaser}

NEW ZEALAND POLICE v PETER JOSEPH THOMPSON [2017] NZDC 12572 [13 June 2017]

about equipment or machinery. When that potential purchaser contacted you, you negotiated a price. The purchaser transferred money into your account. You advised the item would be delivered to the purchaser. However, the item or machinery was not delivered. A copy of the full summary of facts can be annexed to this decision if required.

[3] The police propose a starting point of between four to four and a half years’ imprisonment. The police also endorse counsel’s submission that a 12 month uplift for your previous convictions would be appropriate. The police do not consider reparation is a realistic and viable option, however, given your guilty pleas, a discount of between 15 to 20 percent would be warranted. The sergeant is leaving it in the hands of the Court, or did so at the sentencing indication stage, but endorses my indication that a minimum period of imprisonment should be imposed.

[4] Your counsel has provided extensive, comprehensive and helpful submissions on your behalf. He submits a starting point of three and a half to four years’ imprisonment would be appropriate, with an uplift of 12 months acknowledging your previous convictions. In written submissions Mr Grainger submits that you may be able to pay the full amount [of reparation] and in that event the Court should allow a discount of 15 percent. However, in oral submissions provided at the sentencing indication stage and today in Court Mr Grainger indicated that the issue of reparation would not be pursued and would not remain a live one for sentencing today. Mr Grainger submits a further reduction of 20 percent for your guilty pleas would be warranted and submits a minimum period of imprisonment is not necessary, given your intention to engage in rehabilitation for your longstanding and deep-seated methamphetamine addiction and your expressions of remorse.

[5] A pre-sentence report has been prepared. Your risk of re-offending is assessed as high based on the similarity of current matters and given your extensive conviction history spanning 33 years. Your risk, assessed by the probation officer, is underlined by your abuse of methamphetamine and cannabis as well as a gambling addiction. Your risk of emotional and financial harm to

others is also assessed as high for the same reason, and in the probation officer’s view, “further accentuated by the magnitude of the current matters and the number of victims involved.”

[6] The primary factors to your offending are identified as being lifestyle, attitudes, drug use and, to a lesser extent, friends and associates. The probation officer is of the view it was difficult to gauge the sincerity of your remorse expressed, given the extent of your offending history. However, [she acknowledged] you indicated a willingness to engage and undertake rehabilitation for your drug use. A recommendation of imprisonment is made by the Probation Service.

[7] I need to bear in mind the purposes and principles of sentencing. In my view, accountability for the harm you have done to the victims and the community, deterrence and denunciation are paramount considerations for this sentencing. I also need to bear in mind the gravity of the offending and your particular culpability. Ultimately I must impose the least restrictive outcome in the circumstances.

[8] There is no guideline judgment for dishonesty offending because the circumstances are so varied. However, R v Varjan1 provides some guidance in assessing culpability. In my view there are six main aggravating features relating to your offending.

• First, the extent of the offending and the number of victims. In my view your offending was bold and brash. It involved 11 victims and in some instances you returned to a victim you had already taken money from and took more, and there were considerable sums of money fraudulently obtained by you.

• Second, your offending spanned a reasonably significant period of time –

_{some 15 months.}

1 R v Varjan CA97/03, 26 June 2003

• Third, the total amount obtained was over $300,000. The police estimate almost $283,000 remains unrecovered, the defence estimates $242,000 remains unrecovered.

• Next, your offending involved a breach of trust. There is an element of trust involved in business matters. In one instance there was a grave breach of trust as it involved your ex-partner’s grandmother, who was therefore not only emotionally connected to you but also an older person, and therefore more vulnerable.

• Next there was an element of sophistication, albeit at the lower end of the spectrum.

• Finally, your offending has had a significant impact on the victims, particularly where large sums were deceptively obtained.

[9] Your counsel has referred me to several decisions, including R v Clark2,

Visser v Police3 and Thompson v Police4.

[10] In my view Clarke is particularly helpful as it has a number of similar features, although I concur with your counsel it is slightly more serious in the round than your offending. In Clarke the defendant pleaded to 19 charges of obtaining money by false pretences and two charges of inducing by false pretences and one charge of using a reproduced document with intent to defraud. The offending involved a scheme whereby the defendant defrauded investors. There were a total of 17 victims. The total amount defrauded was $386,081. The Court of Appeal held that a starting point of between four to five years was appropriate after balancing all aggravating and mitigating factors.

[11] Bearing in mind your particular aggravating features, the purposes and principles of sentencing and the authorities I have mentioned, I consider a starting

_{point of four years’ imprisonment is appropriate.}

2 _{R v Clark CA364/99, 31 November 1999}

3 _{Visser v Police [2015] NZHC 3275}

4 Thompson v Police [2014] NZHC 2332

[12] Next I turn to your personal aggravating features. You have an unenviable record. You have a number of previous convictions, specifically 83 convictions for dishonesty and similar offending. An uplift is required. However, I am mindful against doubly punishing you for previous offending and the comments made in Blackmore v R5 to ensure the uplift is proportionate. I impose an uplift of

12 months’ imprisonment.

[13] I turn to your mitigating factors. First, reparation was raised as a possibility at the sentencing indication stage but, given your extensive outstanding fines and your term of imprisonment, reparation is not pursued as a mitigating factor today. It is accepted you paid partial reparation to some of your victims before the offending was reported to the police. However, because of that I have set a starting point based on the unrecovered amounts. Therefore I do not consider reparation as a factor that warrants any discount.

[14] Secondly, you seek a discount for remorse. You raise two particular issues. First, your elderly mother suffers health issues and is unable to visit you in prison. Secondly, you acknowledge a methamphetamine addiction and wish to address that. In my view your expressions of remorse couched in your letter tendered to

the Court today do not constitute remorse as contemplated in Hessel v R6

warranting a discount. However, given your particular circumstances relating to your mother and the attempts you have made to engage, with the Alcohol and Other Drug Treatment Court and your attempts in prison to engage in rehabilitation, I consider this warrants a discount, but it must be a modest discount of five percent.

[15] Finally I turn to your guilty pleas. You provide two reasons as to why there should be a full or almost full discount available for your guilty pleas. First, you made an application to the Alcohol and Drug Treatment Court; and secondly, the charges were laid at various stages and with the new disclosure resulted in the

_{matters not being able to be resolved or addressed at an earlier date.}

5 _{Blackmore v R [2014] NZCA 109}

6 Hessel v R [2010] NZSC 123, [2011] 1 NZLR 607

[16] In my view, taking all of those matters into account and also the date in which you entered your pleas and other factors raised in Hessel v R, a discount of

20 percent is allowed.

[17] Accordingly I reach an end sentence of three years nine months across all of those charges. So that sentence will be imposed across the 13 charges.

[18] I turn to the issue of reparation. I would have preferred to impose a reparation order. Your victims have suffered and are entitled to be recompensed. Unfortunately, however, given your present outstanding fines of $284,000, which I understand largely consist of reparation, and your term of imprisonment, reparation is unfortunately unrealistic.

[19] I turn to the issue of the minimum period of imprisonment. Your counsel acknowledges that, given your criminal history and the charges before the Court, a minimum period of imprisonment could be considered by the Court. However he submits, given your acknowledgement to your addiction of methamphetamine and your desire to address this issue, it reduces the need for a minimum period of imprisonment. He submits that should you seek drug treatment during your term of imprisonment it is possible you may rehabilitate yourself, protecting the community from future re-offending. Mr Grainger submits that if you have not completed a drug treatment programme, it is unlikely in any event that you would be released by the Parole Board.

[20] Section 86 Sentencing Act 2002 provides that if the Court sentences a defendant to a sentence of more than two years it may order that the defendant serve a minimum period of imprisonment. Subsection (2) of that section provides that the Court may impose a minimum period of imprisonment that is longer than the period otherwise applicable if it satisfied that the usual period of term of imprisonment is insufficient.

[21] In my view a minimum period of imprisonment is warranted and appropriate to hold you accountable for the harm you have done to the victims and the community by this offending, and the need to denounce and deter you from

offending in this way again. I consider the community requires protection from you. Notwithstanding your expressions of intention to engage in drug rehabilitation – that has not been particularly successful to date. So accordingly a minimum period of imprisonment of 50 percent is imposed.

P J Sinclair

District Court Judge