[1] Mr Burns, you appear for sentence in relation to 14 representative charges of dishonestly using a document.1 You pleaded guilty to those charges on 24 July 2014 after I had given you a sentence indication on 10 June 2014.

[2] I advise you from the outset that I propose to sentence you to home detention. [3] In sentencing you, I shall:
(1) Describe your offending.

(2) Explain the starting point of your sentence.

(3)Explain the adjustments that I will make to your starting point to reflect:

1 Crimes Act 1961, s 228(b).

R v BURNS [2014] NZHC 2278 [19 September 2014]

(i) your remorse;

(ii) your co-operation with the prosecuting authorities; and

(iii) your guilty plea.

(4)Explain why I am sentencing you to home detention and the length of that sentence.

(5)Set out the reasons for the deferral of the commencement of your sentence of home detention.

Your offending

[4] You participated in a dishonest pro forma advertising invoice scam between June 2009 and October 2012. The scam was sophisticated. The 14 representative charges to which you have pleaded guilty involved an intent to obtain $740,082.66.

[5] The Crown accepts that your role in the enterprise was less significant than that of your alleged co-offenders, and in particular Mr H, who is portrayed as being the mastermind of the enterprise.

[6] I understand your role was primarily as a salesman, who would call on customers in an attempt to sell advertising in various publications and that you believed Mr H would arrange for the publications to be printed.

[7] The Crown accepts that you had a “lesser involvement” in the criminal

enterprise and that you were not fully conversant with what was happening.

Starting point

[8] Both counsel have previously referred to a number of cases in an effort to give me guidance on an appropriate starting point. The Crown submitted that I should adopt a starting point of between 39 and 42 months’ imprisonment. That submission was based upon:

(1) the extent of the harm caused by your offending; (2) the premeditation involved in that offending; and (3) the duration of the offending.

[9] The Crown’s submissions were based on a comparison with a number of cases.2 But the Crown also readily acknowledged that it is difficult to make a precise comparison because each case has to be assessed on its own facts.

[10] Mr Hardy-Jones, your counsel, also drew my attention to a number of cases.3

Mr Hardy-Jones submitted that if you were the sole offender a starting point of around three years might have been appropriate. However, Mr Hardy-Jones submitted that a much lower starting point was justified to reflect your comparatively less culpable role in the enterprise.

[11] I had previously concluded that I should…

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.

Continue reading R v Burns

Details

AGLC: R v Burns [2014] NZHC 2278
Case: [2014] NZHC 2278
Decision Date: 19 September 2014

CaseChat Overview and Summary

The High Court of New Zealand dealt with a case against James Stephen Burns, who was sentenced for dishonestly using a document. Burns pleaded guilty to 14 charges related to his involvement in a pro forma advertising invoice scam. The scam ran from June 2009 to October 2012 and involved an intent to obtain $740,082.66. The Crown accepted that Burns had a lesser role in the enterprise compared to his co-offenders, particularly the alleged mastermind. Burns' role was primarily as a salesman attempting to sell advertising in various publications.

The court determined the starting point for sentencing based on the extent of harm caused, premeditation, and duration of the offending. The Crown proposed a starting point of 39 to 42 months' imprisonment, while Burns' counsel argued for a lower starting point due to his lesser involvement. The court ultimately decided on a starting point of 33 months' imprisonment, taking into account the significance of the offending, the level of planning and premeditation, and the duration of the enterprise. The court then applied adjustments to the starting point based on factors such as remorse, assistance to prosecuting authorities, and the guilty plea. These adjustments resulted in a provisional sentence of 19 months' imprisonment.

The court decided on a sentence of seven months' home detention, considering the purposes and principles of the Sentencing Act 2002. The court believed this sentence would hold Burns accountable, promote responsibility, denounce his conduct, deter others, protect the community, and be the least restrictive outcome. The court also deferred the commencement of the home detention sentence until 25 October 2014 due to humanitarian grounds and the interests of justice, allowing Burns to continue working and assisting the Serious Fraud Office. In conclusion, the court sentenced Burns to seven months' home detention, starting on 25 October 2014.

Orders