Hennessy v Police
[2025] NZHC 1536
•12 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000733
[2025] NZHC 1536
BETWEEN JACK DYLAN HENNESSY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 June 2025 Counsel:
J I C Schlebusch for Appellant E H Barnes for Respondent
Judgment:
12 June 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 12 June 2025 at 11.30 am
Registrar/Deputy Registrar
Solicitors/Counsel:
Johann Schlebusch (Puhoi) for Appellant Meredith Connell (Auckland) for Respondent
HENNESSY v POLICE [2025] NZHC 1536 [12 June 2025]
Introduction
[1] Mr Hennessy appeals his sentence of three years and three months’ imprisonment imposed on him by Judge K J Glubb on 14 November 2024.1 He contends that the starting point of six years chosen by the Judge is too high and renders the end sentence manifestly excessive.
[2] Mr Schlebusch submits that the starting point, having regard to comparable cases, should be four-and-a-half years. He accepts as appropriate the total discount of 45 per cent granted by the Judge, and that would make the appropriate end sentence two-and-a-half years.
[3] I must allow Mr Hennessy’s appeal if the Judge made an error in the sentencing such that a different sentence should be imposed.2 If the end sentence is manifestly excessive then I will need to correct it.
Background
[4] Mr Hennessy, a 25-year-old Englishman, was recruited by criminals to come to New Zealand to take part in a fraudulent scheme to obtain money from members of the public.
[5] Mr Hennessy arrived in New Zealand on 9 June 2024 and the scheme was immediately put into effect. From 10 June 2024 to 24 June 2024, 21 victims across Auckland received telephone calls from criminals impersonating New Zealand police officers. They claimed to be conducting a covert operation requiring the victims’ co-operation. The Judge, in his sentencing notes, describes the scheme:
[5] The victims were instructed to withdraw large amounts of cash which the courier would collect from their homes. You acted as the courier in all instances. You picked up the cash using a code word known only to the scammers. You also played an integral role in this scam. The 21 victims are not known to one another.
[6] You were staying at an address in central Auckland, and you used the Co-operative taxis to ferry you around the city to make those collections it would seem and there is detail of that. It is a lengthy summary of facts which
1 Police v Hennessy [2024] NZDC 30105.
2 Section 250(2) Criminal Procedure Act 2011.
runs to some 21 pages. It is not my intention to read that into the record, but what I simply do is give, at least, an example of how this operated.
[7] At about 9 am on 10 June 2024 the victim received a call to her landline, she was 84 years of age living in Auckland, from a male posing to be Detective David Johnson and providing a badge number, claiming to be investigating a fraud at the Kiwibank. The caller enquired about the victim’s bank balance and upon learning that she had $19,000 he instructed her to withdraw the entire amount telling the bank it was for a funeral and to keep the matter confidential.
[8] Under duress and feeling pressured she did withdraw that $19,000 from a nearby bank and returned home with it. At about 2.10 pm you arrived at her address in a taxi, you approached her house, you said the pre-arranged password and she handed over the envelope containing $19,000 which you took and left.
[9] That was the pattern that was repeated over the 21 victims, but some of the victims were re-victimised, there are 25 counts, 26 all up, you went back to others and sought further funds and they co-operated equally in that way.
[6] On 24 June 2024, police officers investigating the scheme saw Mr Hennessy in a taxi. They recognised him from CCTV footage as the man who had collected the cash from the victims. They arrested Mr Hennessy. The Judge describes what happened next:
[13] Approximately five minutes later you pushed one of the detectives away and fled down Cook Street towards Mayoral Drive. A foot chase ensued involving the detectives moving from Hobson Street, on to Greys Avenue, and through Aotea Square. You were eventually apprehended by three other constables on Myers Street in the CBD. None of that Mr Hennessy does you any credit whatsoever.
[7]The total amount stolen was $337,700. It has not been recovered.
[8] The charges upon which Mr Hennessy was sentenced were 25 charges of obtaining by deception,3 one charge of attempting to obtain by deception,4 and one charge of escaping from police custody.5
3 Crimes Act 1961, ss 240(1)(a) and 241(a); maximum penalty seven years’ imprisonment.
4 Sections 72, 240(1)(a) and 241(a); maximum penalty three-and-a-half years’ imprisonment.
5 Section 120; maximum penalty five years’ imprisonment.
The Judge’s sentence
[9] The Judge considered that the offending raised a very clear need for denunciation and deterrence. He referred to four cases6 and, having identified the aggravating features of the offending, decided on the six years starting point.
[10] I note that, on a totality basis, the Judge included in the starting point Mr Hennessy’s culpability for escaping from police custody.
[11]The Judge then gave discounts:
(a)25 per cent for the entry of guilty pleas;
(b)10 per cent for remorse, which included attending restorative justice meetings with four of the victims;
(c)five per cent for positive efforts while in custody and on remand; and
(d)five per cent for being “a foreign national in a foreign country” with no ongoing support in the community.
[12] Mathematically, the end sentence would be 39.6 months. The Judge rounded that down to 39 months, or three years and three months’ imprisonment.
The appeal
[13] Mr Schlebusch’s submissions canvass eight cases (including the four referred to by the Judge) which he submits, as comparators, show that the Judge’s starting point was too high.7
6 Beaumont v Police [2022] NZHC 472; R v Varjan CA97/03, 26 June 2003; R v Simpson [2018] NZCA 467; and Mears v R [2014] NZCA 30.
7 James v R [2017] NZHC 1186; Tither v Police [2014] NZHC 904; Gray v R [2024] NZHC 2746; and R v N [2022] NZHC 3072.
Discussion
[14] The first point I make is that decisions in comparator cases have only the broadest of relevance. That is because the facts are so different.
[15] The second point is that, although both counsel regard the point on appeal as being the suitability of the starting point, my focus is necessarily on the final sentence. That means I have to consider also the discounts given. The appeal can succeed only if the end sentence of three years and three months is manifestly excessive.
[16] I begin with first principles. Mr Hennessy was convicted of 25 charges of obtaining by deception. The maximum penalty for each charge is seven years’ imprisonment. He was also convicted of attempting a 26th offence; the maximum penalty for the attempt is three-and-a-half years.
[17] Premeditation is apparent. Mr Hennessy travelled from England to take part in the fraudulent scheme and it was put into effect the day after he arrived.
[18] The scheme involved impersonation of a police officer. Public confidence in the police is a vital element of a democracy. Exploiting that confidence, with the risk of undermining it, is an aggravating factor not present in any of the comparator cases.
[19] Mr Hennessy played a central role in the scheme. He physically encountered each victim at their home, some more than once, gave them the arranged codeword and took their money.
[20] There were 21 victims. They were all made vulnerable by the deception, but many were particularly vulnerable because of their advanced age. The age range of the victims was 59 to 92.
[21]The amount stolen was significant — $337,700. The amounts ranged from
$900 to $20,000, with the majority in the $10,000 to $15,000 range.
[22] Then there is the charge of escaping from police custody. Mr Hennessy made a determined effort to get away from the police officers who had just arrested him.
[23] If each of the charges of obtaining by deception could be assessed, on average, as justifying a starting point of one year, the cumulative starting point would be 25 years’ imprisonment before consideration of the remaining two charges. Of course, that is not how sentences are assessed. Totality has to be taken into account and broad regard has to be had to comparator cases. But, my conclusion is that the Judge’s overall starting point of six years is well within range.
[24] As to the discounts, I accept that 25 per cent was available for early pleas of guilty.
[25] I find that the 10 per cent discount for remorse is generous. I accept that Mr Hennessy attended four restorative justice meetings. But, he has done nothing to help his victims recover their money.8 He has refused to co-operate with the police. There is nothing to say that on his release from prison Mr Hennessy will not receive his share of the $337,700.
[26] The five per cent discount for Mr Hennessy’s efforts in custody and on remand is also generous and might not have been given by another Judge.
[27] Similarly, the five per cent for being a “foreign national” might not have been given by another Judge. Mr Hennessy is English. He came to New Zealand to commit the crimes for which he has been sentenced. It is a rum thing to reward him for doing so with a specific discount.
Decision
[28] I see no error such that a different sentence should be imposed. The sentence is not manifestly excessive. It could well have been higher.
[29]The appeal is dismissed.
Brewer J
8 I put to one side that the banks involved have, to a large part, and very creditably, mostly made good the victims’ losses.
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