Jones v Police

[2013] NZHC 1732

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-45 [2013] NZHC 1732

BETWEEN	COREY JONES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 July 2013
Appearances:	G Schweizer for Appellant L Owen for Respondent
Judgment:	9 July 2013

(ORAL) INTERIM JUDGMENT OF LANG J [on appeal against sentence]

COREY JONES v NEW ZEALAND POLICE [2013] NZHC 1732 [9 July 2013]

[1]      Mr Jones pleaded guilty in the District Court to 12 charges of causing loss by deception.  On 12 June 2013, Judge MacKenzie sentenced him to an effective term of 18 months imprisonment.1   Mr Jones appeals to this Court against that sentence. He contends the Judge adopted a starting point that was too high, and that she failed to give adequate consideration to the alternative sentence of home detention.

Facts

[2]      All of the charges that Mr Jones faced arose out of a method he devised to defraud the Bunnings hardware chain.  Each of the charges resulted from Mr Jones going into a Bunnings store and picking up a product off the shelf.  He would then approach the counter, and explain that he had purchased the product earlier and was not happy with it.   On each occasion Bunnings agreed to refund Mr Jones the purchase price of the product he had taken from the shelf.  It did so by applying a credit to a credit card Mr Jones provided.

[3]      The offending occurred between 1 July 2012 and 10 February 2013.   Mr

Jones obtained refunds totalling $6,181.24 as a result of his offending.

The structure of the sentence

[4]      The Judge noted that five of the charges carried a maximum sentence of 12 months imprisonment.  This was because Mr Jones obtained refunds of more than

$500 in respect of the offending giving rise to those charges.  Each of the remaining seven charges carried a maximum sentence of three months imprisonment, because the value of the credit that Mr Jones obtained was less than $500.

[5]      The Judge considered that the offending had aggravating factors.   It was premeditated, had occurred on numerous occasions and caused considerable loss to Bunnings.  She considered the offending warranted an overall starting point of 18 months imprisonment. She imposed that starting point by adopting sentences of nine months imprisonment on one of the charges in respect of which the maximum sentence was 12 months imprisonment.  She then imposed a cumulative sentence of

nine months imprisonment on another of the charges that carried a maximum of 12

1      New Zealand Police v Jones DC Rotorua CRI-2013-063-000905, 12 June 2013.

months imprisonment.  She then imposed concurrent sentences on all remaining charges.

[6]      From that effective starting point of 18 months imprisonment, the Judge imposed an uplift of six months to reflect the fact that Mr Jones has numerous previous convictions for similar offending.  She then applied a discount of 25 per cent, or six months, to reach an effective end sentence of 18 months imprisonment. She imposed cumulative sentences of nine months imprisonment on two of the charges carrying a maximum sentence of 12 months imprisonment, and concurrent sentences on the remaining charges.

Was the starting point too high?

[7]      Counsel for Mr Jones contends that the Judge adopted a starting point that was too high in all the circumstances.  She submitted that the Judge needed to give greater  consideration  to  the  fact  that  seven  of  the  charges  carried  maximum sentences of just three months imprisonment.  She contended that an overall starting point of no more than 12 months imprisonment was warranted.

[8]      Counsel accepted, however, that an uplift needed to be applied to reflect previous convictions, and the fact that Mr Jones was subject to release conditions when he committed seven of the present offences.  She submitted that an uplift of around five months imprisonment would have been appropriate.  From this, she accepted that a discount of 25 per cent was appropriate to reflect guilty pleas.  She therefore contended that the Judge ought to have imposed an end sentence of around

13 months imprisonment.

[9]      I consider, with one modification, that the Judge adopted a starting point that could be described as stern but within the available range.

[10]     One issue that does not appear to have been raised at any stage prior to the present appeal relates to a sentence of four months imprisonment that Mr Jones received on 3 October 2012.  This related to similar offending that occurred between

10 June and 15 September 2012.  It therefore occurred within the same timeframe as the offending for which Mr Jones was sentenced in relation to the present charges.

[11]     I consider that this factor required the Judge to take into account issues of totality.  Had Mr Jones appeared before Judge MacKenzie on all charges, including those in respect of which he was sentenced on 3 October 2012, I very much doubt that the Judge would have adopted a starting point of greater than 18 months.   I therefore consider that the sentence of four months imprisonment that Mr Jones received on 3 October 2012, and subsequently served, needs to be factored into the equation.  I would therefore reduce the starting point by four months to reflect that factor.

[12]     To the resulting starting point of 14 months imprisonment, I would apply an uplift of five months imprisonment to reflect previous convictions (four months) and the fact that seven of the current offences were committed whilst Mr Jones was subject to release conditions (one month).  From that end starting point of 19 months imprisonment, I would apply a discount of five months to produce an end sentence of 14 months imprisonment.

Should a sentence of home detention have been imposed?

[13]     Next, counsel for Mr Jones submitted that the Judge ought to have imposed a sentence of home detention rather than imprisonment.  She accepted that Mr Jones has numerous previous convictions for similar offending, and that he has served numerous terms of imprisonment.  She submits, however, that the Judge was wrong to   reject   a   rehabilitative  sentence   in   favour   of   the   deterrent   sentence   of imprisonment.  She submits that there was sufficient evidence before the Judge to suggest that Mr Jones could benefit from a rehabilitative sentence, and that the community would benefit from this as well.

[14]     Counsel points out that previous sentences of imprisonment have had little effect.  This is reflected in the fact that Mr Jones committed seven further offences within just three months of being released from prison for the offending on which he was sentenced on 3 October 2012.

[15]     Before coming into Court today, I had reached a tentative view that Mr Jones’ previous criminal history is such that rehabilitation is a forlorn hope.   During the hearing, however, I was provided with an updated report from the same probation officer who prepared the report that was before Judge MacKenzie.  This confirms that Mr Jones had attended all counselling and budget advice sessions arranged before he was sentenced.   In addition, he meets the criteria for referral to the Department of Correction’s psychologist for assessment and counselling.   The probation officer says that it is unfortunate that Mr Jones received a term of imprisonment in respect of the present charges, because there will be no assistance for him whilst he is in prison.  I infer from this that the probation officer is concerned that Mr Jones will offend again as soon as he is released if something is not done to address his underlying problems in the meantime.

[16]     The probation officer points out that, in her opinion, Mr Jones is suitable for a community-based sentence, and as a candidate for home detention so that his underlying problems can be addressed whilst he serves that sentence.

[17]     I have now reconsidered my tentative view, and have concluded that the interests of the community may well be better served by a rehabilitative sentence rather than a sentence of imprisonment. The extent to which, and the frequency with which, Mr Jones has offended in the past means that he very likely suffers from underlying pathological problems that need to be addressed if there is to be any hope that he ceases to offend in the future.   If he simply serves his sentence of imprisonment and is then released without intensive efforts being made to address these  problems, he  will  virtually inevitably offend  again  as  he  did  after  being released from his most recent sentence of imprisonment.

[18]     As a consequence, I have been persuaded that rehabilitative issues are to the forefront in Mr Jones’ case, and that a deterrent sentence of imprisonment, although undoubtedly warranted by the present offending, is nevertheless unlikely in the long term to be in the best interests of either the community or Mr Jones.

Result

[19]     For that reason I propose to allow the appeal and impose a sentence of home detention. The sentence will, however, need to be longer than would normally be the case to reflect the fact that Mr Jones will require intensive assistance to address his underlying issues.

[20]     The address that was available to Mr Jones when he was sentenced is no longer available to him.  He has, however, obtained an address in Auckland that he believes will be suitable.   The address will need to be visited by the EM  bail assessors to ensure that it is technically feasible for a sentence of home detention. The written consent of the occupants will also need to be obtained.

[21]     I am aware that it normally takes approximately six weeks to obtain an EM bail assessor’s report.  I do not require a full report in the present case.  I need only to be assured that the address is technically feasible, and that the occupants of the address consent to Mr Jones serving a sentence of home detention there. Although I refrain at this stage from nominating the exact length of the sentence, it is likely that he will be required to serve a sentence of around nine months home detention.  This will obviously need to be explained to the occupants of the proposed address.

[22]     I therefore defer giving final judgment on the appeal.  I will take that step once the EM bail assessor’s report is to hand.  I would hope that the report could be obtained within the next one to two weeks.

[23]     Mr  Jones  will  obviously  appreciate  that  this  is  his  final  opportunity  to undertake rehabilitative efforts to curb his prolific offending.   Should he not take advantage of this opportunity, the Court will obviously be unlikely in the future to

impose a sentence that reflects other than deterrent principles.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:
G Schweizer