Dass v Police

[2015] NZHC 2431

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2015-419-000025 [2015] NZHC 2431

BETWEEN

JAMIE ZANE DASS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	9 September 2015
Counsel:	D Venter for Appellant TA Needham for Respondent
Judgment:	6 October 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Tuesday, 6 October 2015 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Eastside Law, Hamilton.

Almao Douch, Hamilton.

DASS v NZ POLICE [2015] NZHC 2431 [6 October 2015]

Introduction

[1]      The appellant Jamie Zane Dass between 14 December 2014 and 30 January

2015 went on a spree of offending, not for the first time.

[2]      On 28 April 2015, having entered pleas of guilty, Judge Spear sentenced him to a total of three years, nine months’ imprisonment for the following charges:

(a)       burglary x 2;

(b)      obtaining property by deception x 7;

(c)       breaching prison release conditions x 2; (d)     breaching Court bail; and

(e)       possessing cannabis.

He appeals against sentence on the basis that his sentence was manifestly excessive. [3]     There was an error in the entry of convictions, which by consent, I have

corrected.1

Background

[4]      The offending which spanned a period of six weeks took place while Mr Dass was subject to prison release conditions and Court bail.  His method of operation was to approach strangers and then, appealing to their better instincts, seek money by telling them a fabricated story.  That story would be along the lines that his wife was very ill and was in hospital, or that he had to pick up his children, or that he required money for petrol.   He would often weep while telling these lies.   He was clearly convincing.  He would persuade victims to go to ATM machines to withdraw funds.

The amounts varied from sums of $100 down to sums of $20.

1      Dass v Police HC Hamilton CRI-2015-419-000025, 9 September 2015 (minute).

[5]      The victim impact statements show that the victims were seriously affected by his actions.  Their trust in him and wish to do the right thing was abused.  The money they lost was money they needed for their daily lives.

[6]      In  addition on two  occasions he was stopped  entering properties for the purpose of burglary.  The summary of facts is not detailed.  On one of these he had smashed open a glass panel of a louvre window he was endeavouring to remove so he could get into the house.

[7]      Judge Spear had originally given a sentencing indication indicating a lengthy sentence of imprisonment, given the nature of the offending and Mr Dass’ previous convictions for dishonest offending.  When he sentenced Mr Dass, he described the offending as “simply disgusting and deplorable”.2   He quoted from the statement of a victim of the offending who was 67 years of age and lived with her very sick 76 year old husband.  Mr Dass had gone to her twice telling his untrue story, and the Judge quoted this statement from the victim:3

It was a good act and he appeared to be on the verge of crying when he was outlining his problems.   I felt sorry for him which is why I gave him the money fully believing his story that he would repay us within three days. What was worse was that he came back twice with the same story, only for me to pay him twice.  My husband and I are pensioners and are not flush with money.   We manage to survive on our pensions.   I’m appalled and disappointed when I found out the truth and that he was a con artist.  We would dearly like to have our money repaid.

[8]      The Judge dealt with Mr Dass’ expressions of remorse.  The probation officer who prepared the pre-sentence report was not convinced he was remorseful.  Judge Spear expressed scepticism about Mr Dass’ expressions of regret, given that they had been also given on earlier occasions and observed:4

Realistically, the only way that the Courts can have any confidence that you have made a change in your lifestyle is if you are able to go offending free for a significant period of time once you are released from prison.

[9]      The Judge considered that the sentence he had to impose had to reflect the seriousness of the totality of the offending, and concluded that a starting point of

four years’ imprisonment was appropriate.5    He recognised his extensive previous convictions and increased the sentence by another year to five years’ imprisonment. He allowed a 25 per cent guilty plea credit as he had indicated at the sentence indication hearing.  He summarised the sentences he imposed as follows:6

(a)       Taking the burglary charge of 29 December 2014 as the lead charge, you are sentenced to three years nine months’ imprisonment.

(b)       On the other burglary charge, two years’ imprisonment.

(c)       For all the obtaining by deception, two months’ imprisonment.

(d)       Breach  of  release  conditions,  you  have  previous  convictions  of

course for that offending, six months’ imprisonment.

(e)       Breach of bail you have previous convictions for that offence, two

months’ imprisonment.

(f)       Possession of cannabis, small amount, again you have previous drug convictions, two months’ imprisonment.

The starting point

The burglary charges

[10]     On any assessment the burglary charges were at the lower end of the scale. Mr Dass did not get inside either property and did not take anything from either property.   He was effectively stopped on entrance.   In assessing the culpability of that burglary simpliciter, this low level of culpability must be recognised.

[11]     It was stated in Arahanga v R:7

This Court has deliberately not set a tariff for burglary because the range of circumstances in which the offence can be committed is so varied.  Burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.  Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point   of   approximately   18   months   to   two   years   and   six   months imprisonment.

[12]     These burglaries being at the relatively minor end of the scale, it seems to me that  the  starting  point  for  the  first  burglary  should  have  been  no  more  than

18 months’ imprisonment, uplifted by a further six months for the second burglary, so  that  the  starting  point  for  the  burglaries  was  two  years’  imprisonment.    I emphasise that the totality principle is applied to an extent in this assessment, as if each burglary charge was assessed individually the two totals of 18 months would have led to a sentence closer to three years’ imprisonment.  However, such a starting point for the burglary charges alone would have been excessive.  I am sure that the Judge was applying that starting point across the board including all the other offences, but as he did not break it down, as I will do in my own exercise.

The obtaining by deception charges

[13]     The maximum sentence for these deception charges is only three months’ imprisonment.  This is because s 241 of the Crimes Act 1961 applies.  If the amount obtained by deception exceeds $1,000 the maximum term of imprisonment is seven years, and if it is between $500 and $1,000 it is to not exceed one year.8    It is only where the loss is less than $500 that the term of imprisonment is to not exceed three months.9

[14]     Thus, while as Mr Venter fairly pointed out, the two months attributed by Judge Spear as the sentence for each charge was close to the maximum, this was appropriate.  The people who were targeted included pensioners who were not well off.   The victim impact statements show how the victims were seriously affected. There is a particular culpability involved in preying on the very best emotions of ordinary members of our community, so that their decency is taken advantage of, and they hand over their important savings to, they suppose, assist another. As deception charges at the lowest level ($500) go, these were of the most serious order.

[15]     There were seven deception counts, and the maximum potential sentence on the total of the seven added up would have been a total of one year and nine months’ imprisonment.  In those circumstances in my view a sentence of one year and three months’ imprisonment, cumulative to the burglary charges, was appropriate for this

offending.  So there is a totality deduction in this calculation.

8      Crimes Act 1961, s 241(a) and (b).

Other offences

[16]     Through this period of offending Mr Dass was defying his prison release obligation to see his probation officer, and breaching the terms of his bail by his actions.  This culpability is of a different nature to the culpability on the burglary and deception charges, and a cumulative sentence in relation to this offending was appropriate.

[17]     There was also the cannabis offending, which appears to have related to a minor act of possession.

[18]     In my assessment the appropriate sentence for the breach of prison release conditions, the breach of bail and the cannabis offending was six months’ imprisonment.

[19]     If these starting points on the individual offending are cumulatively assessed, the total starting point was three years and nine months’ imprisonment.

[20]     I do not think any further totality adjustment is required.   In my view a starting point close to that of Judge Spear of four years’ imprisonment was appropriate, although I have assessed it in a different way.

Personal mitigating and aggravating factors

[21]     Save for the guilty pleas, there are no personal mitigating factors that apply. In particular, Mr Dass is not entitled to any discount for remorse.  He has submitted a personal letter expressing remorse, but like Judge Spear I view this with scepticism. No doubt he has made similar expressions of remorse following other sentencing exercises, which were followed by yet further sprees of dishonesty.

[22]     If Mr Dass is to save his future and save the community from the cost of continually imprisoning him, he is going to have to do a lot more than write remorseful letters.  As Judge Spear observed, when he next leaves prison he is going to have to stop re-offending.  Sadly, his appalling recidivism indicates that he is far from that point.

[23]     I accept Mr Venter’s point that as burglary recidivists go, he is far from being in the worse category.  He has only been found guilty of four previous burglaries on two separate occasions.  In respect of the most recent two burglary charges, he was sentenced to one year and one month imprisonment, and four months’ imprisonment in 2013, and in respect of an earlier burglary on 8 August 2011 he was sentenced to one year and six months’ imprisonment.

[24]     However, he has been convicted of approximately 24 previous obtaining by deception charges, and a number of other theft and dishonesty charges.   This is a significant aggravating factor.  His first sentence for causing loss by deception was on 18 June 2009.  It seems that as the years go by he has learnt nothing.  In the pre- sentence report Mr Dass’ motivation to change was assessed at “very low”.  It was observed that he was likely to appear on similar offences before the Court in future. It was observed that alarmingly Mr Dass was likely to “pose a risk to kind hearted and  vulnerable  people  on  whom  he  preys,  with  his  persuasive  soul  touching fabricated  stories”.     His  response  to  current  and  previous  community-based sentences was described as “abysmal”.

[25]     A bad record of this type shows two things.  First it shows a disregard, indeed a defiance of the Court process, and the strictures undoubtedly delivered to him by Judges on earlier occasions.  Second it shows what a danger Mr Dass poses to the community. The community needs to be protected from him.

[26]     In all the circumstances I consider that an uplift of 18 months’ imprisonment, more than the one year imposed by the Judge, was appropriate.  That would make the end sentence before a final totality assessment and deduction for the guilty plea, five years and three months’ imprisonment.

Totality

[27]     When  cumulative  sentences  of  imprisonment  are  imposed  they must  not result in a total period of imprisonment wholly out of proportion to the gravity of the

overall offending.10   The significant factor about Mr Dass’ actions when viewed as a

10     Sentencing Act 2002, s 85(2).

whole, is that he has become a menace to our community; his willingness to deceive means he can cause great damage.   There is a particular need to denounce his actions, to deter him from re-offending and to protect the community from him.  But applying the totality principle I will make a modest further deduction, and reduce the end starting point to five years’ imprisonment.   Applying to the sentence of five years’ imprisonment  the  25  per  cent  discount  for  a  guilty  plea,  the  maximum available, an end sentence of three years and nine months’ imprisonment is reached, the same as that of Judge Spear.

Result

[28]     Although my breakdown has been different, I uphold Judge Spear’s sentence for essentially the same reasons that he relied on.   This was a  long episode of flagrant dishonesty offending that caused significant damage in our community.  It must be denounced and Mr Dass must be deterred.  The end sentence of three years and nine months’ imprisonment might be seen as severe, but was within the range and justified in the circumstances.

[29]     The appeal is dismissed.

……………………………..

Asher J