JORDAN GREGORY HALL AND NEW ZEALAND POLICE
[2024] NZHC 3811
•9 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-599
[2024] NZHC 3811
BETWEEN JORDAN GREGORY HALL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 December 2024 Appearances:
A Fisher for Appellant
M V Kilkelly for Respondent
Judgment:
9 December 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH
Solicitors/Counsel:
Meredith Connell, Auckland A Fisher, Barrister, Auckland
HALL v NEW ZEALAND POLICE [2024] NZHC 3811 [9 December 2024]
Introduction
[1] Mr Hall appeals against a sentence imposed in the District Court by his Honour Judge E P Paul on 3 October 2024 on 31 charges:1
(a)use of a forged document;2
(b)four counts of dishonest use of a document;3
(c)three counts of obtaining by deception (over $1,000);4
(d)fourteen counts of accessing a computer system for a dishonest purpose;5
(e)obtaining by deception (under $500);6
(f)two counts of theft (under $500);7
(g)unlawful possession of a pistol;8
(h)reckless driving;9
(i)unlawfully gets into motor vehicle;10
(j)possession of methamphetamine pipe;11
(k)failing to answer District Court bail;12 and
1 New Zealand Police v Hall [2024] NZDC 24899.
2 Crimes Act 1961, s 257(1)(c). Maximum penalty: 10 years’ imprisonment.
3 Section 228(1). Maximum penalty: seven years’ imprisonment.
4 Sections 240(1)(a) and 241(a). Maximum penalty: seven years’ imprisonment.
5 Section 249(2). Maximum penalty: five years’ imprisonment.
6 Sections 240(1)(a) and 241(c). Maximum penalty: three months’ imprisonment.
7 Sections 219 and 223(a). Maximum penalty: seven years’ imprisonment.
8 Arms Act 1983, s 50 (1)(a). Maximum penalty: three years’ imprisonment and/or $4,000 fine.
9 Land Transport Act 1998, s 35(1)(a). Maximum penalty: three months’ imprisonment.
10 Crimes Act 1961, s 226. Maximum penalty: seven years’ imprisonment.
11 Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty: one year imprisonment and/or
$500 fine.
12 Bail Act 2000, s 38. Maximum penalty: one year imprisonment and/or $2,000 fine.
(l)failing to stop for red/blue flashing lights.13
[2] Mr Hall does not take any issue with the starting point of the sentence. The appeal is premised on the basis that the discounts were inadequate and that as a result the sentence imposed was manifestly excessive.
[3] Mr Hall submits that there was inadequate credit given for the following matters:
(a)time spent on electronically monitored (EM) bail;
(b)discount for remorse and participation in restorative justice; and
(c)discount for addiction and matters raised in the drug and alcohol report.
[4] Mr Hall initially submitted that he ought to have been granted discounts totalling 70 per cent, resulting in an end sentence of around 19 months’ imprisonment. By contrast, Judge Paul allowed for approximately 33 per cent in discounts.
[5] In Court today, Ms Fisher, for Mr Hall, acknowledges that there was a period of offending on EM bail that exceeded the one month initially referred to, and on that basis the 20 per cent sought for that factor, she submits, would be tempered so that the total discounts would be below the 70 per cent originally sought.
[6] The respondent opposes the appeal and says that the sentencing Judge was justified in the approach to the various discounts sought and the end sentence was not manifestly excessive.
The offending
[7] Mr Hall’s offending occurred over two periods. The first was between March and November 2022 (2022 offending) and the second between November and December 2023 while subject to EM bail on the 2022 offending (2023 offending).
13 Land Transport Act 1998, s 52A(1)(a)(ii), (2) and (3). Maximum penalty: $10,000 fine and disqualified from driving for six months.
[8] In respect of the 2022 offending, Mr Hall is referred to as the principal offender with occasional assistance from two associates. The total number of offences is said to be roughly 1,000 but public interest considerations led to the primary focus being placed on actions relating to benefits obtained by Mr Hall and his associates. The total benefit gained equated to $178,991.65. The total loss was $127,438.37.
[9] Mr Hall gained access to victim’s email accounts. He would set up an email redirection to an account controlled by him in order to ensure that if the victim were to realise their account was compromised and change their password, he could maintain access.
[10] Once Mr Hall had access to the accounts, he would add phone numbers, email accounts and addresses to the account profile. This allowed him to authorise transactions that required two-step authentication. He would seek to obtain documentation such as passports, driver’s licences, and bank cards to facilitate the offending. This provided him with access to a variety of user accounts from which he could conduct transactions.
[11] Mr Hall utilised a number of techniques including taking on the identity of the victim, family members, and banks in order to illicit information required to gain and maintain access to accounts. He contacted victims purporting to be from a bank, asking them to verify their identity by providing an authorisation code sent to their phone. He ordered new bank cards linked to the defendants’ accounts with which he would go on spending sprees or withdraw large sums of cash at SkyCity casino.
[12] The frauds occurred concurrently, and Mr Hall often returned to reoffend against previous victims. The victims, who were often elderly and technologically illiterate, were particularly vulnerable to this form of offending. Mr Hall’s methods were sufficiently sophisticated and deceived businesses and banks. There were secondary victims such as retailers.
[13] The 2023 offending occurred while Mr Hall was subject to a grant of EM bail on the 2022 offending. In less than four weeks, Mr Hall deposited $203,586.68 into a Bank of New Zealand account he had opened. Of that amount, $138,255.68 was
obtained from the Inland Revenue Department by way of Mr Hall filing fraudulent GST returns. This resulted in three further charges of obtaining by deception.
[14] On 17 December 2023, Mr Hall cut off his EM bracelet. Police attempted to conduct a traffic stop on 19 December 2023 from which Mr Hall fled. A number of further charges arose from the subsequent pursuit and the items found with Mr Hall when he was apprehended.
The District Court decision
[15] Judge Paul adopted a global starting point of four years’ imprisonment on all charges, noting that it was serious, sophisticated, and premeditated fraudulent offending occurring across a long period of time and targeting vulnerable people.
[16] The Judge then applied a five-month uplift to reflect Mr Hall’s relevant prior convictions and offending while on bail and gave a 20 per cent discount for guilty plea.
[17] The Judge accepted a small discount was available for Mr Hall’s upbringing and addiction but did not consider there was a causal link between the offending and the matters set out in the reports. While the sentencing notes do not record a specific discount, the Crown submits that it can be deduced from the end sentence that it was the equivalent of an approximately eight per cent discount.
The grounds of appeal
[18] Mr Hall appeals his sentence on the grounds that it was manifestly excessive. He submits that in considering discounts for personal mitigating factors, a further five per cent should have been allowed for remorse to reflect his participation in a restorative justice conference. He says that a discount of around 20 per cent should have been afforded for the 11 months he spent on EM bail prior to the 2023 offending, although it is now acknowledged that for a period of about three months Mr Hall self‑reported using methamphetamine on a very regular basis and for that reason Mr Hall’s counsel accepts that the discount of 20 per cent would have to be reduced
somewhat. He also submits that a discount should have been provided for s 27 factors of 20 per cent.
[19] Mr Hall’s counsel submits that the Sentencing Act 2002 specifically provides that a discount must be provided for time spent on EM bail. I note that submission is not quite correct. It is mandatory that the Court take into account the fact that a defendant has spent time on restrictive bail but not mandatory that a discount be applied.14 The appellant accepts that the extent of the any credit is discretionary and not a matter of arithmetical equivalence although where conditions are restrictive, a discount equal to approximately half of the time on EM bail is not unusual.
[20] Where an offender has offended whilst on EM bail, a discount for the period of time on EM bail may not be warranted.15 The appellant acknowledges that Mr Hall did offend on EM bail but says this was limited mainly to the last month he spent on EM bail and to methamphetamine use in the few months prior to that rather than offending littered throughout the time on EM bail. The offences committed on bail were committed between 23 November 2023 and 19 December 2023. Mr Hall was remanded in custody of 20 December 2023.
[21] The appellant accepts that he should not get the full discount for EM bail due to his offending prior to his remand in custody but says that as he was compliant for a period of eight months — he should have some discount. He seeks a discount, now somewhat less than 20 per cent, reflecting time spent when there were no breaches and no new offending.
[22] Mr Hall’s counsel says that it is unclear if the restorative justice report was before the sentencing Judge. It is noted that Judge Paul did accept that Mr Hall was genuinely remorseful. A discrete discount of five per cent was given for remorse, it is submitted that because Mr Hall attended a restorative justice conference, a discount in the region of 10 per cent should have been applied.
14 Sentencing Act 2002, s 9(3A).
15 Gage v R [2014] NZCA 140 at [26].
[23] Mr Hall says there was no discount for drug addiction and addiction to gambling which was outlined in the pre-sentence report and in the s 27 report. It is submitted, for the appellant, that there is causative link between his offending and his methamphetamine use and gambling which is the driver of the offending.
Approach on appeal
[24] An appellant may appeal against sentence as of right under s 244 of the Criminal Procedure Act 2011.
[25] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.16 In any other case the appellate court must dismiss the appeal.17 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing Judge.18 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.19
[26] When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.
[27] The appellate court does not start afresh or simply substitute its own opinion for that of the sentencing Judge, rather it must be shown that there was an error whether intrinsically or because of additional material submitted on appeal that affects the appropriate outcome.20 The court will not intervene where a sentence imposed is within a range that could be properly justified by accepted sentencing principles.21
16 Criminal Procedure Act 2011, s 250(2).
17 Section 250(3).
18 Palmer v R [2016] NZCA 541 at [17].
19 Kumar v R [2015] NZCA 460 at [81].
20 R v Shipton [2007] 2 NZLR 218 (CA) at [138].
21 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
Discussion
[28] In this case, the Crown submits that the restorative justice report was on the District Court file. It details a panel conference attended by Mr Hall and two facilitators representing the community. The views of only one victim were obtained in advance of the conference. The Crown accepts that a willingness to participate in restorative justice can form part of a genuine expression of remorse justifying a discount.
[29] It is unclear to me why it was not specifically referred to by the Judge, however, whether or not it was considered, I do not think that error resulted. The Judge accepted the expression of remorse recorded in the PAC report and the letter from Mr Hall. The discount of five per cent was granted on that basis. The expressions of remorse contained in the PAC report and letter do not materially differ from those provided during the restorative justice process. As was submitted by Ms Fisher, a five per cent credit is quite usual where genuine remorse is coupled with a willingness to engage in restorative justice.
[30] Further, I agree with the Crown that little weight can be placed even on genuine expressions of remorse or rehabilitative efforts in circumstances of recidivist offending. Mr Hall has a very long history of offending. He has had the benefit of remorse discounts on a number of previous occasions. Similar expressions of remorse were provided in a PAC report dated 5 September 2022. At the time those expressions of remorse were made, the 2022 offending was underway and Mr Hall was already on bail for earlier dishonesty offending — that was bail simpliciter. I agree with the Crown that a discount of five per cent was as much as could be expected — even factoring in attendance at a restorative justice conference.
[31] The issue of a credit for time spent on EM bail was considered by the sentencing Judge. The Judge decided that the 2023 offending neutralised any credit Mr Hall could otherwise have received for compliance with EM bail.
[32] In the November/December 2023 period Mr Hall engaged in further dishonesty offending over a number of weeks and obtained a very large sum of money from the IRD after lodging fraudulent GST returns. He used some of those funds to obtain
items by deception. On 17 December 2023, in addition to offending on bail, he cut off his EM bracelet and absconded. On 19 December 2023, he fled from police when they attempted to conduct a traffic stop. He fled at high speed in busy traffic and multiple charges resulted from the subsequent chase and the items found with him when he was apprehended.
[33] The alcohol and other drug report discloses that Mr Hall continued to use methamphetamine while on EM bail and was doing so on an almost daily basis in the three months prior to the 2023 offending.
[34] I agree that it is difficult to see how Mr Hall can characterise his behaviour as compliant. In my view, it was entirely open to the Judge to decline to recognise the impact of restrictive bail conditions in circumstances where Mr Hall breached bail and committed further offending including drug offending, serious dishonesty offending, absconding, and fleeing from police. It is not appropriate to divorce significant non‑compliance from periods when there is no known offending.
[35] I do not make any assumption that there was offending other than during the period that Mr Hall admitted using methamphetamine and the 2023 offending, but I think that is sufficient to make a discount for time spent on bail inappropriate. Clearly EM bail was needed for entirely proper means to try to mitigate offending behaviour and was not entirely successful. I also agree with the Crown that the combined uplift of five months for previous convictions and offending while on bail was moderate. Mr Hall has 16 previous convictions for dishonesty, but the most concerning factor is that the majority of that offending occurred while he was bail.
[36] I have considered whether the uplift for offending on bail coupled with a refusal to permit a discount for time spent on EM bail amounts to double counting and I was initially concerned that it did. Certainly, there is a danger that it could do so, but in this case, I have come to the view that no miscarriage results because the 2022 offending was also on bail. Mr Hall was on bail for previous dishonesty offending when he committed the 2022 offending. He was then remanded on EM bail during which he further offended by using methamphetamine regularly towards the last three months of that period and then by significant additional dishonesty offending. It is
apparent from the bail history which I have looked at today that Mr Hall has very poor compliance with bail generally.
[37] In this case, the uplift for the previous offending and offending on bail was modest in the context both of the previous offending and the fact that the bail breach for the 2023 offending involved significant further offending and offending in multiple ways as well as absconding. I do not think that there has been double counting to such an extent that the sentence imposed is outside the available range. I note that the uplift was not only for offending on bail but was also for previous offending generally. The reality is that Mr Hall is a recidivist offender who routinely offends on bail and having expressed remorse, continue to offend which make those expressions of remorse somewhat hollow.
[38] Judge Paul declined to give a specific discount for the matters raised in the PAC report. The Judge found there was no causal link between addiction and the offending. The Crown says there does not have to be extensive evidence of a nexus between offending and socioeconomic and cultural disadvantage for a discount to be granted. A particular background factor need only have a “causative contribution” to the alleged offending to be relevant for sentencing purposes.
[39] The alcohol and other drug report prepared by Dr Gilbert sets out a history of drug use which Mr Hall reported dates back to a difficult upbringing. The Crown accepted, and I agree, that the Judge would not have been in error to provide a discount for those factors. I consider that the drug and gambling addiction does provide a causal nexus for the offending, but I am less persuaded that, in this particular case, the balancing act required in any sentencing justifies a discount. The addictions might provide some hope for the future as they are treatable and without those drivers Mr Hall might pose less of a risk to the public. But his ongoing recidivist offending indicates he is not, at the moment, at that point. His needs must be balanced against the need to deter and denounce his offending and protect the public from further offending.
[40] In any event, the Judge did consider that a small discount was available for those issues, and it is clear that a discount was in fact applied. The end sentence
calculated mathematically would have been three years and five months’ imprisonment, but the actual sentence imposed was three years and one month’s imprisonment, indicating a discount of around four months or eight per cent.
[41] The offending which Mr Hall engaged in was sophisticated, premeditated and involved careful planning and subterfuge. While it may have been driven by his addiction, he was clearly able to function in a quite sophisticated way and make complicated decisions. The primary rational for the offending was financial, although I accept that it was likely motivated by drug addiction and gambling.
[42] The ultimate consideration must be whether the sentence imposed was manifestly excessive. I come to the view that it was not.
[43] Adopting the proposed discounts would lead to an end sentence which, in my view, would be manifestly inadequate. Mr Hall’s offending was sustained; it was all committed on bail, it was varied and parts of it involved danger to the public, namely the driving offending when Mr Hall fled from police. Many of the victims of the financial offending are described as vulnerable and elderly. The offending was remarkably persistent.
[44] In the circumstances, the end sentence of three years and one month’s imprisonment could not be said to be manifestly excessive.
Result
[45]The appeal is dismissed.
Wilkinson-Smith J
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