Gobey v Police [2018] NZHC 1555 (27 June 2018)

Last Updated: 5 July 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2018-485-36 [2018] NZHC 1555

BETWEEN	HAYDEN RAE GOBEY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 June 2018
Counsel:	K M Pedder for Appellant A R Winsley for Respondent
Judgment:	27 June 2018

JUDGMENT OF THOMAS J

Introduction

[1] The appellant, Mr Gobey, was sentenced in the District Court to two years and three months’ imprisonment for a multitude of dishonesty and other convictions.¹ Mr Gobey now appeals that sentence on the basis the starting point of three years’ imprisonment was too high and the Judge improperly relied on personal circumstances to impose a longer sentence.

Factual background

[2] The charges are the result of a period of offending where Mr Gobey variously:

(a) altered a prescription to obtain more medication than that to which he was entitled;

¹ Police v Gobey [2018] NZDC 7224.

GOBEY v NEW ZEALAND POLICE [2018] NZHC 1555 [27 June 2018]

(b) purported to sell items over Facebook, received the money but failed to send the goods to the buyers;

(c) obtained and used a credit card to buy PrezzyCards;

(d) obtained financial details of two people by impersonating bank security staff and taking $36,000 from the victims’ accounts;

(e) purported to sell a mobile phone on Facebook and thereby obtained a copy of a 20 year old immigrant victim’s bank account, driver’s licence and passport. He then used those documents to buy a new cell phone online and sell it;

(f) applied for a credit card in the name of another victim; and

(g) obtained photographs of a police officer’s driver’s licence and police identity card, and created a Facebook account in the police officer’s name through which he advertised electronic items. On a number of occasions, he received money for the goods he advertised but no goods were ever received by the purchasers.

[3] Mr Gobey’s offending took place over a period of six months and caused an overall loss of approximately $41,000 to a number of victims. The course of conduct gave rise to:

(a) four charges (two representative) of taking, obtaining or using a document for pecuniary advantage;²

(b) one representative charge of accessing a computer system for a dishonest purpose;³

(c) one representative charge of obtaining by deception (over $1,000);⁴

² Crimes Act 1961, s 228: maximum penalty seven years’ imprisonment.

³ Section 249(1): maximum penalty seven years’ imprisonment.

⁴ Sections 240(1)(d) and 241(a): maximum penalty seven years’ imprisonment.

(d) two charges of causing loss by deception (over $1,000);⁵

(e) one representative charge of intent to access a computer system for a dishonest purpose;⁶

(f) one representative charge of obtaining by deception ($500–$1,000);⁷

(g) two charges of causing loss by deception ($500–$1,000);⁸

(h) one representative charge of impersonating a police officer;⁹ and

(i) two charges of theft.¹⁰

[4] In addition, Mr Gobey was charged with:

(a) three charges of breaching release conditions by failing to report to a Probation officer as instructed;¹¹

(b) one charge of failing to answer District Court bail;¹²

(c) one charge of breaching community work;¹³ and

(d) four charges of an unlicensed driver failing to comply with a prohibition.¹⁴

District Court decision

[5] The District Court Judge briefly outlined the offending and referred to the pre-sentence report and report pursuant to the Criminal Procedure (Mentally Impaired

⁵ Sections 240(1)(d) and 241(a): maximum penalty seven years’ imprisonment.

⁶ Section 249(2): maximum penalty five years’ imprisonment.

⁷ Sections 240(1)(a) and 241(b): maximum penalty one year imprisonment.

⁸ Sections 240(1)(d) and 241(b): maximum penalty one year imprisonment.

⁹ Policing Act 2008, s 48: maximum penalty one year imprisonment and $15,000 fine.

¹⁰ Crimes Act 1961, s 223(d): maximum penalty three months’ imprisonment.

¹¹ Sentencing Act 2002, s 96(1): maximum penalty one year imprisonment.

¹² Bail Act 2000, s 37: maximum penalty one year imprisonment and $2,000 fine.

¹³ Sentencing Act 2002, s 71(1)(a): maximum penalty three months’ imprisonment and $1,000 fine.

¹⁴ Land Transport Act 1998, s 52(1)(c): maximum penalty $10,000 fine.

Persons) Act 2003, which indicated a significant methamphetamine addiction underpinned Mr Gobey’s offending. The Judge was disturbed by Mr Gobey’s claims that his offending was victimless and by his descriptions of the victims themselves as “dumb enough” to have given him their details. He said:

[4] It is clear from both the earlier pre sentence report, and indeed the s 38 report, that without any real foundation Mr Gobey has a strong sense of both superiority and entitlement, and that despite now acknowledging his methamphetamine abuse, and earlier such substance abuse issues, he is resistant to rehabilitative intervention.

[6] The Judge then outlined Mr Gobey’s criminal history, which included an earlier episode of fraud offending, and the fact that reparation was unlikely. He noted Mr Gobey’s enthusiasm for attending a particular rehabilitative programme at Odyssey House but considered the challenges of rehabilitation were likely to be far greater than Mr Gobey realised, given the factors earlier referred to.

[7] The Judge set a starting point for the fraud offending by reference to a number of factors, including Mr Gobey’s attitude to his victims:

[9] In all the circumstances, and given both the time over which this offending was committed, the variety of ways in which Mr Gobey sought to part his trusting victims from their money, Mr Gobey’s earlier convictions, and indeed his arrogance towards his victims, in my view in respect of the more serious group of fraud offending, a starting point of two years nine months is appropriate, and to that, for the earlier offending, and the other concurrent offending, I would add an uplift of three months’ imprisonment to bring the modified starting point to three years’ imprisonment.

[8] He then gave a guilty plea discount of nine months, which equated to 25 per cent. No other discounts were available. This resulted in an end sentence of two years and three months’ imprisonment.

[9] In concluding, the Judge made the following comments regarding Mr Gobey’s release:

[14] ... The effect of the sentence imposed today is that Mr Gobey will, in due course, probably quite soon given the time spent on remand, appear before the New Zealand Parole Board. It will be for the Parole Board to make its own independent assessment of Mr Gobey’s genuineness, or otherwise, in respect to his stated desire to attend and complete the Odyssey House programme, or such other rehabilitative interventions such as Mr Gobey so clearly needs.

Law

[10] The appeal proceeds by way of s 250 of the Criminal Procedure Act 2011, where the appellate court must allow an appeal if it first finds an error in the sentence and is then satisfied that a different sentence ought to be imposed. The Court of Appeal in Tutakangahau v R confirmed that s 250 does not change the error principle approach:¹⁵ an appellate court must find a vitiating error, material to the decision, before exercising the discretion to vary a sentence. The Court also confirmed that, despite s 250 making no express reference to “manifestly excessive”, the test may still be applied to sentence appeals.¹⁶ Such a claim is:¹⁷

... inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

Analysis

[11] Mr Pedder, for Mr Gobey, submitted the starting point was too high and the appropriate starting point, given other comparable cases, should have been 15 to 21 months’ imprisonment. Mr Pedder accepted Mr Gobey’s offending was premeditated, involved multiple victims who suffered varying degrees of financial loss and occurred over a period of some months. He acknowledged the total loss was high but said that was not determinative of seriousness.¹⁸ He submitted the Judge may have fallen into error by including in his assessment, and placing significant weight on, Mr Gobey’s superiority, arrogance and sense of entitlement. He acknowledged an uplift for prior offending was warranted but, when combined with an already high starting point, suggested the Judge double counted that factor.

[12] Mr Winsley, for the respondent, submitted the starting point was within the appropriate range when taking into account the circumstances of the offending. Those circumstances included the length of time over which the offending occurred, the number of victims, multiple transactions, and different types of activity. Mr Winsley

¹⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [26]–[31].

¹⁶ At [33] and [35].

¹⁷ At [32].

¹⁸ Rako v R [2015] NZCA 463 at [10].

suggested these aspects were the subject of the Judge’s focus, in addition to the arrogance Mr Gobey displayed for his victims.

[13] The Court of Appeal has provided guidelines in assessing relative culpability for dishonesty offending:¹⁹

[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

[23] It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.

[14] The Judge took a somewhat unorthodox approach in setting the starting point. There is some confusion given the way he referred to Mr Gobey’s earlier convictions, the more serious group of fraud offending, the earlier offending and the concurrent offending. However, having taken all those factors into account, he arrived at a starting point of three years’ imprisonment.

[15] The Judge’s reference to the more serious group of fraud offending can be taken to be that described at the start of his decision, being the dishonesty offending with high maximum penalties. I do not accept the Judge double counted in respect of past convictions but clearly he did factor in past convictions when deciding on the starting point. In 2015, Mr Gobey was sentenced to 18 months’ imprisonment on 21 charges of dishonesty offending. Given the proximity to the current offending, an uplift was required. It appears the Judge factored that prior offending into what he described as the starting point for the more serious group, being two years, nine months but did not specify the amount of the uplift. From that he uplifted the starting point by three months’ imprisonment in respect of what he described as the earlier and concurrent offending. I take that to mean the lower level dishonesty offending and the other unrelated convictions, in respect of which a three month uplift is entirely reasonable.

¹⁹ R v Varjan CA 97/03, 26 June 2003.

[16] I am not persuaded the Judge erred by noting the arrogance Mr Gobey showed towards his victims. That attitude might be taken as indicative of a lack of remorse, a factor which is not to be taken into account when assessing aggravating features of offending. However, in certain circumstances, it is relevant to assessing the gravity of the offending itself. In this case it can be considered as colouring the motivation for his offending, in that he found certain victims were easy targets. It can equally be characterised as a factor indicating he preyed on people vulnerable to manipulation. In that sense, they are factors relevant to the offending and therefore relevant to setting the starting point.

[17] In any event, I am not persuaded this factor was material to the setting of the starting point. Mr Pedder and Mr Winsley both referred to various cases which they claimed supported their position as to an appropriate starting point.²⁰ I have had regard to those cases and counsel’s submissions. Of course, every case needs to be considered in its own particular circumstances and it is possible to find cases which could be considered analogous where a lower starting point has been taken and the reverse.

[18] The cases presented show the range of sentences available for this type of offending is considerable and is heavily dependent on the particular circumstances of the case. In this instance, while the starting point was at the higher end, it cannot be said to be out of range. This was repeated offending over a period of some six months, involving several different modes of offending with at least a moderate degree of premeditation, planning and sophistication. It was aggravated by the fact that some of the charges involved impersonating a police officer. The seriousness of this offending is well in excess of that in Whitaker v Police,²¹ and has more aggravating features than that in R v Hayes,²² two cases cited by Mr Pedder.

[19] All this serves to demonstrate the need to step back, assess the seriousness of the overall offending and consider an appropriate starting point. Reference to the number of charges on their own is insufficient, notably seven of the dishonesty charges are representative. There is also what can be considered the unrelated offending,

²⁰ R v Hayes [2006] NZCA 318; (2006) 23 CRNZ 547 (CA); Whitaker v Police [2016] NZHC 232; Chapman v Police

[2015] NZHC 498; Williamson v Police [2016] NZHC 520; and Blackmore v R [2014] NZCA 109.

²¹ Whitaker, above n 20.

²² Hayes, above n 20.

which includes breach of release conditions and breaching community work. (I note community work was imposed in March 2017 for breach of release conditions, those release conditions being attached to the sentence of imprisonment for the earlier dishonesty offending.) Added to all of this is the fact that some of the current offending was committed whilst on bail for the earlier dishonesty offending in respect of which Mr Gobey was being sentenced.

[20] When all those factors are considered, I am not satisfied the starting point was outside the available range. Mr Gobey received a full 25 per cent discount for guilty pleas. There is no submission to the effect any further discounts were warranted.

Result

[21] For the reasons given, the appeal is dismissed.

Thomas J

Solicitors:

Public Defence Service, Wellington for Appellant

Crown Solicitor’s Office, Wellington for Respondent