HANSFORD V NEW ZEALAND POLICE HC AK CRI-2009-404-000194 [2009] NZHC 1212 (9 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                              CRI-2009-404-000194



                          CRAIG STEPHEN HANSFORD
                               Appellant/Applicant



                      
                    v



                             NEW ZEALAND POLICE
                                  Respondent



Hearing:
     8 September 2009

Appearances: P Heaslip for Appellant
             R Reed for Respondent

Judgment:     9 September 2009


                       ORAL JUDGMENT OF VENNING J




Solicitors:    Crown Solicitor, Auckland
               P Heaslip, Auckland




HANSFORD V NEW ZEALAND POLICE HC AK CRI-2009-404-000194 9 September 2009

Introduction


[1]    Having pleaded guilty to 39
charges of fraud, one charge under the Misuse of
Drugs Act, namely possession of drug utensils and two charges under the Insolvency
Act, the applicant was, on 27 February 2009, sentenced by Judge Johns in the
District Court at Manukau to imprisonment for a period
of four years. The Judge
also imposed a minimum term of imprisonment of two-thirds.


[2]    The applicant seeks leave to appeal
out of time from the imposition of the
minimum period of imprisonment. The reason for the delay in filing the appeal has
been explained
and the Crown do not take issue with the explanation. Leave is
granted to the applicant to bring this appeal out of time.


Background


[3]    To put the appeal and the imposition of the minimum period of imprisonment
in context it is necessary to refer to the offending
the appellant pleaded guilty to, in
particular the fraudulent offending.


[4]    On 14 July 2004 the appellant was declared bankrupt
at the Auckland High
Court on his own motion in relation to debts of $108,000. On 5 July he applied for a
new driver's licence in
another name, that of Craig Antonio Jefferson, having
changed his name by statutory declaration. He then used that identity to obtain
credit from a number of financial institutions. He also opened bank accounts with
various banks using that identity and an associated
identity Leo Jefferson.


[5]    On 7 July 2005 he applied for $14,000 credit from Senate Finance to buy a
vehicle using a false
identity and address.


[6]    In September 2005 he was employed as a salesman at Papakura Motors using
the name Antonio Jefferson.
In the course of his employment he used his position to
complete fraudulent finance applications with UDC Finance for the purchase
of cars.
He used his parents' names.

[7]    In November 2006 he was employed as a Courier Post delivery driver. In
that employment
he stole numerous credit cards from Courier Post and used them to
obtain goods to the value of $10,700.


[8]    On 22 March 2007
he and his partner purchased a vehicle to the value of
$25,345. The appellant made a cash deposit of $5,000 and applied for finance
from
MTF for the balance. In doing so he did not disclose he was an undischarged
bankrupt. In May or June 2007 he arranged with a
friend to sell her the car that was
subject to the finance to MTF. She was to pay a deposit of $2,500 with weekly
payments of $100.
The third party financier reclaimed the vehicle from the friend.


[9]    Between 3 April 2007 and 10 May 2007 he was employed as
a truck driver
by another company. He falsely claimed he had a heavy truck licence to obtain
employment. He was given a company credit
card that was to be used to pay for the
cleaning of the truck. He was also given a company phone with instructions it was
to be used
for business and emergencies. The appellant used the company credit
card to obtain accommodation, food and drink. He also made a
large number of
unauthorised calls on the cell phone.


[10]   In May and June 2007 he purchased items on finance from DTR Limited
and
the Manufacturing Warehouse. In doing so, he did not disclose that he was an
undischarged bankrupt. He obtained goods to the
value of $7,500 by that means.


[11]   On 13 June 2007 a friend moved into the home of the defendant and his
partner. Shortly after he moved out leaving his Nissan Skyline car
in the garage at
the address. The appellant re-registered the vehicle in his own name without the
owner's permission and obtained
a loan of $4,000 on the vehicle.


[12]   On 25 June 2007 he agreed to buy a Holden Commodore from a car sales
yard in Manurewa for
$39,890. He paid cash of $6,000 and applied for finance from
MTF for almost $34,000. He did not disclose he was an undischarged bankrupt.


[13]   In July and early August 2007 he advertised Play Station 3's for sale on the
Trade Me auction site. He agreed to sell three
Play Stations to various individuals he

did not know. They transferred the purchase price to his bank account. He did not
send
them the Play Stations.


[14]   On 10 August 2007 he went to a friend's address in Manurewa. He borrowed
the friend's boat saying
he would return it two days later. He never returned the
boat. It was worth $9,000 and has not been returned.


[15]   On 24 August
2007 he went to the Manukau Police Station and admitted re-
registering the Nissan Skyline in his own name. However he claimed he
had not
raised any finance against it. He signed that statement as true and correct.


[16]   At some point the appellant obtained
a cheque book in the name of Motors
Limited. Between 18 and 21 September 2007 he used cheques from the cheque book
to obtain a laptop
and stationery from Warehouse Stationery valued at $15,000. He
then used a further cheque to purchase a Subaru Forester car from
SP Auto Sports
for $26,100. He obtained possession of the car. On the same day he went to Milano
Motors and wrote two stolen Motor
Limited cheques to pay for two cars in the
amounts of $21,000 and $9,000 respectively.


[17]   On 12 October 2007 he was located
at his home address in Papatoetoe and
was found to have the glass pipes used for smoking methamphetamine in his
possession.


[18]
  The total amount of the fraud is in excess of $240,000. He actually obtained
goods or moneys worth to the value of $184,475. Approximately
$127,000 was
defrauded from his parents and family.


The appeal


[19]   Mr Heaslip realistically conceded that in the circumstances
there could be no
challenge to the imposition of a sentence of four years' imprisonment.          The
challenge was, however to the
imposition of the minimum period of imprisonment of
two-thirds.

The District Court decision


[20]   In imposing the minimum non-parole
period the Judge recorded that she had
turned her mind to s 86 of the Sentencing Act which allowed the Court to impose a
minimum
non-parole period and then stated:

       [32]    I am of the view given your previous convictions and given the
       extent of
your offending on this occasion, that I should impose a minimum
       term of imprisonment and I do so. So you are to serve two
thirds of the full
       term of your imprisonment.

[21]   Although Mr Heaslip was not counsel appearing for the appellant at the
time
he has submitted, supported by affidavit evidence, that at the time the Judge imposed
the minimum non-parole period on her own
initiative, neither the Crown nor the
appellant's counsel had referred to the matter in their submissions. It follows from
that,
that the Crown had not at the time sought such a minimum period, although
they now support the imposition of a minimum period.


Decision


[22]   A similar issue arose in the recent Court of Appeal case of R v Grant  [2009]
NZCA 266. The Court of Appeal confirmed in that case that there must be proper
consideration and enunciation of the reasons for imposing a
minimum period of
imprisonment and for the obtaining of submissions to assist in that process.
Reference can be made to the decisions
of R v Boyd CA89/03, 24 June 2003 and R v
Clayton  [2008] NZCA 348. In R v Boyd Doogue J said at paras [16] and [17]:

       [16]     The sentencing Judge appears to have taken the view that he had
to
       consider a minimum period of imprisonment under s86, notwithstanding that
       there was no request by the Crown for
him to follow such a course. Certainly
       the Judge has a discretion to consider the exercise of the power vested in him
   
   under s86. However, if the Judge determines to consider the exercise of the
       power he must give the parties an opportunity
to be heard. It is not clear in
       this case whether he invited submissions from counsel. If he did not do so
       the result
would be contrary to natural justice and s27(1) of the New Zealand
       Bill of Rights Act 1990.

       [17]    In any event he
gave no reasons for imposing a minimum term of
       imprisonment. He was obliged to do so in accordance with the provisions of
       s31 Sentencing Act 2002. At the very least the substance of his reasons
       should have been clear.

[23]   In the present
case, as in Grant, the possible imposition of a minimum period
of imprisonment had not previously been signalled. The Judge should
have given an
opportunity for submissions before imposing the sentence. Because that was not
done the Court in Grant approached the
matter de novo both from a question of
whether a minimum period was required and the appropriate length of that period.


[24]  
At the outset of the hearing today, leave was granted to appeal. Counsel
confirmed that they were in a position to address the Court
on the issue of the
minimum non-parole period, both as to whether a minimum period was required in
this case and the length of that
period.


[25]   In the circumstances I followed the procedure adopted by the Court in Grant
and approached the matter de novo. Mr
Heaslip again realistically accepted that
given the nature of the offending in this case and the appellant's previous record a
minimum
period of imprisonment could properly be considered by the Court but, in
his submissions, it should be no more than 50 percent at
most.


[26]   For the Crown Ms Reed submitted that a minimum period of imprisonment
was required in this case and should be towards
the upper end of the level available,
if not at the full extent of two-thirds as imposed by the District Court Judge.


[27]   I
approach the matter afresh.


[28]   Mr Heaslip raised a number of matters in support of the appellant's position.
First he suggested
that there may be a possibility of reparation at least in a small sum
that could be directed towards some of the "smaller" victims
by quantum. However,
the suggestion of reparation is simply unrealistic in this case. The appellant already
owes in excess of $36,000
reparation which he is not able to pay. As noted he has
been bankrupted. Also, it would be inequitable and unfair to prefer a few
minor
creditors over others, even if that was possible.


[29]   Next, Mr Heaslip submitted that the community as a whole would be
better
served if the appellant spent a longer time supervised on a parole sentence and that
such supervision would provide more protection
in the long term if the appellant was

genuine and abided by conditions of parole. He noted that the probation officer had
suggested
a number of conditions of parole which the Judge had not referred to.


[30]   As discussed with counsel the Judge would not have
referred to the specific
conditions suggested by the probation officer given the length of the sentence
imposed. In principle I accept
there is some force in Mr Heaslip's submission that
the community's interests in the long term will be served if the appellant is
rehabilitated but I have some real reservations as to the expression, both by the
appellant and by counsel on his behalf, as to the
appellant's intention to rehabilitate
himself and his statement that he has now learnt his lesson. His past record does not
support
that.


[31]   The appellant has a significant number of previous convictions, including
recent convictions for similar offending. He has an offending history spanning 10
years
consisting of some 48 convictions.         The offending to date has primarily
consisted of fraudulent offending. The appellant has
spent time in prison and has
completed a number of courses while there. As the probation officer recorded, past
interventions undertaken
included a Straight Thinking Programme which the
appellant completed while in prison. The records reported very good performance
in
the programme. A Department of Corrections Psychological Assessment was also
completed in March 2004. At the time the appellant
was assessed as being at a
moderate risk for further fraudulent offending. The probation officer noted that,
given his recidivist
offending along with the magnitude of it, his offending risk has
elevated. The probation officer then went on to note:

       Unless
Mr Hansford actively pursues changes to address addiction areas and
       reduce his risk by adjusting his lifestyle and attitudes
to a more honest and
       law abiding status his risk will remain high.

[32]   So while I accept that the appellant has recently
undertaken some steps whilst
in prison to address his addiction and there are some positive programmes he has
completed, he has to
face the fact that in the past he has completed such programmes
in prison but nevertheless offended in a significant way on his release
to the
community. That remains a concern.

[33]   Mr Heaslip also referred to a number of authorities (as did Ms Reed) where a
minimum
period of imprisonment had been imposed.


[34]   There are a number of cases of fraudulent offending where lengthy minimum
periods
of imprisonment have been imposed: R v McKelvy  [2007] NZCA 340;
Howard v Police (HC AK CRI-2007-404-188 10 March 2008 Harrison J); R v
Patterson  [2008] NZCA 75 and a recent decision of Serious Fraud Office v
Fitzsimons (DC NAP CRI-2008-441-37 3 October 2008 Ongley J) and a decision of
R v
Swann (HC DUN CRI-2007-012-4181, 11 March 20098, Stevens J). Mr Heaslip
sought to distinguish the cases and noted that in McKelvy,
a case of a serious
recidivist fraud offender, a minimum period of imprisonment of less than two-thirds
had been imposed.


[35]
  Each case must of course turn on its facts. In this case, as counsel have
acknowledged, the need for a minimum period of imprisonment
has been engaged
given the circumstances of the offending and the offender. The issue is whether the
usual minimum non-parole period
of one-third is insufficient for the following
purposes:

       (a)    holding the offender accountable for the harm done to the
victim and
              the community by the offending:

       (b)    denouncing the conduct in which the offender was involved:

       (c)    deterring the offender or other persons from committing the same or
              a similar offence:

       (d) 
  protecting the community from the offender.

[36]   In this case the length of the minimum period required must be informed by
considering the need to hold the appellant accountable for the harm done to his
victims and the community by his offending.     
    As noted there is no chance of
reparation by the appellant. Substantial losses have been suffered as a result of his
offending.
Even accepting that he has offended against his family and that there
seems to be some degree of reproachment by his father, (for
which his father is to be
commended), nevertheless the offending affected friends, other members of the
family, finance companies
and innocent individuals.

[37]     Next, in relation to the need to deter the appellant, it has to be acknowledged
that the offending
was ongoing over a significant period of time and that he offended
in a number of different ways.


[38]     Related to that issue
is the fact that he has served a period of imprisonment in
the past for similar dishonest offending, which has not deterred him from
offending
in this way.


[39]     The last issue which is of particular relevance in informing the proper
minimum period of imprisonment
is the need to protect the community from the
appellant. Again in relation to that issue his past offending is relevant as is the
duration and extent of the offending in the present case.


[40]     When I review those factors, namely the need to hold him accountable
for the
harm done to the victims of his offending and the community in general, the fact
there is no chance of reparation, the need
to deter the appellant from committing
similar offending and the overriding need to protect the community from the actions
of the
appellant, the personal position of the appellant counts for little. I am driven
to conclude that the appellant is a recidivist dishonest
offender. There is little
realistic prospect of rehabilitation.       Despite his expressions of intention to
rehabilitate himself
his actions in the past suggest that that is unlikely.


Result


[41]     In my judgment, for the above reasons it is necessary
to impose a minimum
non-parole period of two-thirds.       The sentence of the District Court Judge is
reviewed but the minimum non-parole
period of two-thirds is confirmed.


[42]     The sentence is otherwise unaffected.




                                        
        __________________________
                                                 Venning J