Thomson v Police [2014] NZHC 2332 (24 September 2014)

Last Updated: 9 October 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000024 [2014] NZHC 2332

BETWEEN	GARETH THOMSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	24 September 2014
Appearances:	S A Saunderson-Warner for Appellant CER Power for Respondent
Judgment:	24 September 2014

_{ORAL JUDGMENT OF GENDALL J}

Introduction

[1] Mr Thomson appeals against a sentence of two years’ imprisonment imposed

by Judge Coyle in the Dunedin District Court on 17 July 2014 for charges of: (a) obtaining by deception;¹

(b) driving with excess breath alcohol;² and

(c) driving while forbidden.³

[2] Mr Thomson appeals on grounds that the sentence Judge Coyle imposed was manifestly excessive for the following reasons:

_{(a) the starting point for the obtaining by deception offence was too high;}

¹ _{Crimes Act 1961, s 240(1)(b). Maximum penalty of seven years’ imprisonment.}

² _{Land Transport Act 1998, s 56(4). Maximum penalty of two years’ imprisonment or fine $6000.}

³ _{Section 52(1)(c). Maximum penalty of fine of $10,000.}

THOMSON v NEW ZEALAND POLICE [2014] NZHC 2332 [24 September 2014]

(b) credit should have been given to the appellant for his attendance at a

Restorative Justice Conference with his mother; and

(c) the uplift of six months for previous convictions was too high.

Background

Obtaining by deception

[3] On about 14 June 2013, using the New Zealand Transport Agency website, Mr Thomson transferred the ownership of his mother’s 2011 vehicle, without her knowledge or permission, into his own name.

[4] Two weeks later around 1 July 2013, Mr Thomson applied for an online loan from Avanti Finance. Mr Thomson stated to Avanti Finance that he owned the vehicle and used it as security.

[5] On 3 July 2013, Avanti Finance sent loan documents to the appellant

Mr Thomson in Balclutha and he signed and faxed them back to Avanti Finance.

[6] As part of requirements Avanti Finance requested a letter from Mr Thomson’s mother confirming the transfer of ownership. On 4 July 2013 Mr Thomson faxed a forged letter he wrote purporting to be his mother to Avanti Finance confirming the ownership change.

[7] Avanti Finance then requested a copy of his mother’s driver’s licence to be faxed to them. On 5 July 2014 Mr Thomson faxed a copy of his mother’s driver’s licence to Avanti Finance with a contact phone number. Also on 5 July 2014 Avanti telephoned that number and spoke to Mr Thomson the appellant who pretended to be his mother. Avanti then approved a $16,000 loan and paid it into the appellant’s bank account.

[8] Mr Thomson acknowledged that he had attempted this idea with about 10 other finance companies he searched for on the internet. The other finance companies did not approve a loan because of Mr Thomson’s poor credit rating and

the fact that Mr Thomson had been given an expensive vehicle and that he was applying for a loan a very short space of time later.

Driving offences

[9] Turning now to the driving offences. On both 30 July 2008 and 7 February

2011, Mr Thomson appeared in the Balclutha District Court and was convicted of driving with excess breath alcohol.

[10] On 13 September 2013, Mr Thomson was forbidden from driving until he

obtained a current driver’s licence.

[11] On 19 April 2014 at about 10.00 p.m. Mr Thomson was driving a car in Balclutha. When spoken to Mr Thomson exhibited signs of alcohol intake. Evidential breath test procedures were carried out at the Balclutha police station, which returned a positive result of 809 micrograms of alcohol per litre of breath.

[12] Subsequent checks by police revealed that Mr Thomson had previously been

forbidden to drive until he obtained a current driver’s licence.

[13] In explanation Mr Thomson stated that he had driven his partner’s car as she

had gone to town and he had to get back for his curfew.

Judge Coyle’s decision

[14] I turn now to Judge Coyle’s decision in the District Court. In reaching his decision, Judge Coyle took into account that the charges comprised two different courses of offending. Therefore he approached the sentencing on the basis that he would impose cumulative sentences.⁴

[15] When assessing an appropriate sentence for the obtaining by deception offending, Judge Coyle took into account the following aggravating features:

_{(a) premeditation in devising an elaborate plan;}

⁴ Sentencing Act 2002, s 84(1).

(b) the vulnerability of the victim being Mr Thomson’s mother; and

(c) a clear breach of trust.

[16] By assessing Mr Thomson’s overall culpability after taking these aggravating features into account, Judge Coyle reached a starting point of 18 months’ imprisonment.

[17] He imposed an uplift of six months’ imprisonment for Mr Thomson’s

significant previous dishonesty offending.

[18] Judge Coyle found there were no further aggravating or mitigating factors. He allowed a full discount however for an early guilty plea of 25 per cent. He arrived at an end sentence in relation to the obtaining by deception charge of

18 months’ imprisonment.

[19] Judge Coyle also ordered Mr Thomson to pay reparation of $4306.75.

[20] Judge Coyle then approached the driving offending. He considered that this was Mr Thomson’s sixth offence for drink driving. He had regard to the fact that there is danger in uplifting for this type of offending for previous convictions given the fact that there are previous convictions inherent in the nature of the charge.

[21] Judge Coyle adopted a starting point of 12 months’ imprisonment to reflect Mr Thomson’s overall culpability. He allowed a full discount of 25 per cent for an early guilty plea. This resulted in an end sentence of nine months’ imprisonment.

[22] Judge Coyle then considered the totality of the cumulative sentences he would be imposing. He determined that an end sentence of two years and three months’ imprisonment would be excessive. He adjusted the drink driving sentence to one of six months’ imprisonment.

[23] Thus Judge Coyle reached an end sentence of two years’ imprisonment in

relation to both matters.

[24] Judge Coyle also imposed a disqualification period of 18 months’ from holding or obtaining a driving licence and subjected Mr Thomson to a zero alcohol licence.

[25] On the driving while forbidden charge, Judge Coyle convicted and discharged Mr Thomson.

Legal principles governing an appeal

[26] I turn now to the legal principles governing an appeal. Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[27] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011

include:⁵

(a) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b) The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different

_{sentence “should” be imposed.}

⁵ Tutakangahau v R [2014] NZCA 279 at [26]- [36].

(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.⁶ If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.

(d) In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, these concepts are long- standing and should continue to be utilised when considering s 250(2).

(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

Analysis

[28] I turn now to an analysis here.

Obtaining by deception

[29] There is no tariff case for dishonesty offending. Culpability is to be assessed by reference to the circumstances and such factors as:⁷

(a) the nature of the offending;

_{(b) its magnitude and sophistication;}

⁶ _{R v Shipton [2007] 2 NZLR 218 (CA) at [139].}

⁷ R v Varjan CA97/03, 26 June 2003 at [22].

(c) the amounts involved; (d) the losses;

(e) the period over which the offending occurred;

(f) the seriousness of breaches of trust involved; and

(g) the impact on the victims.

[30] Counsel for Mr Thomson before me cited Savage v Police and Fomai v Police as authorities for the submission that the starting point adopted for this type of offending here was too high and that a starting point in the vicinity of 12 months should have been imposed.⁸ In Savage, Rodney Hansen J adopted a starting point of

18 months’ imprisonment. In Fomai, a starting point of two years to two years and

six months’ imprisonment inclusive of the uplift for the previous convictions was adopted.

[31] In my assessment, in this case a starting point of 18 months’ imprisonment

was entirely appropriate, taking into account:

(a) Mr Thomson used his mother’s car to obtain a loan for himself;

(b) Mr Thomson had to forge his mother’s signature, take a copy of her driver’s licence and impersonate her while speaking to Avanti Finance;

(c) the amount of the loan was significant at $16,000;

(d) Mr Thomson’s mother had to pay the repossession agent a sum of

_{$4306.75 to keep her car from being repossessed;}

⁸ Savage v Police HC Whangarei CRI-2008-488-001, 14 February 2008 and Fomai v Police

[2014] NZHC 377.

(e) the offending was premeditated, it took place over a period of some months, and was ongoing and a repetitive deception of the finance company (after unsuccessful attempts had been made to raise the loan from about 10 other finance companies);

(f) the breach of trust was serious and calculated as the victim was

Mr Thomson’s mother; and finally

(g) his mother remains distressed over the offending that took place.

[32] The uplift Judge Coyle imposed for previous dishonesty offending was justified in the circumstances of this case. Mr Thomson has accumulated a high number, about 70, dishonesty convictions since 1997. Any uplift adopted must bear a reasonable relationship to the starting point adopted for the lead charge.⁹ An uplift of six months against a starting point of 18 months equates to 33 per cent of the starting point. In a recent decision in this Court, Graham v NZ Police,¹⁰ the appellant also had an 18 month sentence uplifted by six months for nine previous convictions for violence. The uplift imposed to reflect Mr Thomson’s significant history of dishonesty offending cannot be said to be out of proportion to the starting point Judge Coyle adopted.

Mitigating factors

[33] I turn now to consider mitigating factors. Mr Thomson has also had raised on his behalf the submission that his participation in a Restorative Justice Conference should have resulted in a further discount in the sentence.

[34] Section 10 of the Sentencing Act 2002 states that the Court must take into account an offer, agreement, response or measure to make amends. Section 8(j) states that the Court must take into account any outcomes of restorative justice

_{processes that have occurred.}

9. Taylor v R [2012] NZCA 332 at [46]; applying the principles governing an uplift for previous convictions.

¹⁰ Graham v NZ Police [2014] NZHC 2112

[35] Participation by an offender in a restorative justice process prior to sentence provides the opportunity for the expression of genuine remorse and contrition, and enables the victim and the offender to agree on the means by which the offender can make appropriate amends. It affords the offender a way of demonstrating his or her genuine remorse and thus operates to mitigate the sentence.¹¹

[36] As an indication of genuine remorse, an offender’s engagement in restorative justice is recognised by a reduction in sentence.¹² A willingness to participate in a restorative justice conference that does not proceed may also indicate a positive attitude and perhaps even remorse.¹³

[37] However it has also been recognised where an offer of amends is genuinely made by the offender and capable of fulfilment, but the victim refuses to accept it as expiating or mitigating the wrong, a sentencing Judge is entitled to take an approach of taking into account the offer of amends and electing to give little weight to it as a

justification for a reduction in sentence.¹⁴ The appellate Courts are “loathe to

interfere” with this type of discretionary assessment.¹⁵

[38] In the District Court Judge Coyle did reflect on Mr Thomson’s attendance at a Restorative Justice Conference with his family. He noted that it was “clearly distressing for everyone”.¹⁶ He noted that Mr Thomson’s mother was also appalled at Mr Thomson’s gall at offering to serve out a sentence of home detention at her address given the crime he had committed against her and the consequences of it.

[39] Mr Thomson’s mother it seems has not accepted the conference as expiating or mitigating the wrong. In my assessment, Judge Coyle was justified in giving little weight to the restorative justice process Mr Thomson undertook. Therefore this

_{ground of appeal must also fail.}

¹¹ _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].}

¹² _{R v Shirley [2009] NSCA 216 at [23].}

¹³ _{Scott v R [2014] NZHC 1598.}

¹⁴ _{R v Cui CA333/05, 28 September 2006 at [107].}

¹⁵ _{At [108].}

¹⁶ Police v Thomson DC Dunedin CRI-2014-012-001147, 17 July 2014 at [11].

Conclusion

[40] For all the reasons I have outlined above this appeal is dismissed.

...................................................

Gendall J

Solicitors:

Aspinall Joel, Dunedin

RPB Law, Dunedin