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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 1732
Decision Date: 9 July 2013

CaseChat Overview and Summary

In the case of Jones v Police, the appellant, Corey Jones, appealed against his sentence for 12 charges of causing loss by deception. The appellant argued that the District Court Judge had set an excessively high starting point and failed to consider the alternative sentence of home detention. The offending involved the appellant defrauding Bunnings by obtaining refunds for products he had simply taken from the shelves. The total loss amounted to $6,181.24.

The High Court considered the arguments and found that the starting point could be described as stern but within the available range. The court acknowledged that the sentence of four months imprisonment imposed on 3 October 2012 for similar offending should have been factored into the equation. The court adjusted the starting point by four months, resulting in a starting point of 14 months imprisonment. The court then applied an uplift of five months for previous convictions and the fact that seven of the current offences were committed while the appellant was subject to release conditions. After applying a discount of five months for the guilty plea, the court arrived at an end sentence of 14 months imprisonment.

The court also considered whether a sentence of home detention should have been imposed instead of imprisonment. The court took into account the appellant's previous criminal history and the probation officer's report, which suggested that the appellant could benefit from a rehabilitative sentence. The court concluded that the interests of the community would be better served by a rehabilitative sentence rather than a sentence of imprisonment. The court proposed to allow the appeal and impose a sentence of home detention, which would likely be around nine months long. The court deferred giving final judgment on the appeal until the EM bail assessor's report was obtained.

In summary, the High Court allowed the appeal and reduced the sentence to home detention with a likely duration of nine months. The court emphasised the importance of addressing the appellant's underlying issues to prevent future offending.

Orders