R v Burns

[2014] NZHC 2278

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-085-002116 [2014] NZHC 2278

THE QUEEN

v

JAMES STEPHEN BURNS

Counsel:

G J Burston for Crown

M Hardy-Jones for Prisoner

Sentence:

19 September 2014

NOTES ON SENTENCE OF COLLINS J

Introduction

[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 adopt a starting point of 36 months’ imprisonment.  However, it appears I may have over assessed the extent of your role in the enterprise.  For that reason I will today adopt a starting point of 33 months’ imprisonment for the following three reasons:

(1)Although I accept you played a lesser role in the enterprise in which you have participated, your offending was significant.  It involved an elaborate dishonest scheme that was designed to obtain a significant amount of money.

(2)There was a high level of planning and premeditation involved in your offending.

2      Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC); R v Varjan CA97/03, 26

June 2003; Davidson v R [2011] NZCA 356; Commerce Commission v Klair DC Auckland CRI-

2013-004-6770, 12 September 2013; R v Orchard CA123/03, 24 October 2003; R v Fatu [2007] NZCA 430; R v Stirling [2007] NZCA 106 and R v McKelvy [2007] NZCA 340.

3      R v Cochrane CA431/92, 27 May 1993; R v Grant CA481/03, 16 March 2004; Barr v Serious Fraud Office HC Christchurch A123/00, 25 August 2000; Singh v R [2013] NZCA 245; Cole v Police [2001] 2 NZLR 139 (HC); Down v R [2011] NZCA 138. Mr Hardy-Jones also drew attention to Davidson v R [2011] NZCA 356 and R v Varjan CA97/03, 26 June 2003 referred to in the Crown’s submissions.

(3)The enterprise in which you participated ran for a little over three years.

Adjustments to the starting point

Previous convictions

[12]     You have eight previous convictions for dishonesty offending.   As I have previously indicated the comparative antiquity of those previous convictions means that they can be placed to one side.

Remorse

[13]     I am now very satisfied that you are genuinely remorseful.  I will reflect that by discounting the sentence that would otherwise have been imposed by two months. This discount reflects what the Supreme Court said in Hessell v R.4

Assistance

[14]     It is clear that to date you have provided valuable assistance to the Serious Fraud Office and that you are willing to continue to do so.  I will therefore give you a further discount of four months to reflect the genuine assistance that you are providing to the prosecuting authorities.   This discount is consistent with the authorities that bind me.5

Guilty plea

[15]     Finally, I will give you a discount of eight months to reflect your guilty plea. This discount fully reflects the purposes articulated in Hessell v R.6

[16]     From a starting point of 33 months’ imprisonment I provisionally end up with a sentence of 19 months’ imprisonment.

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

5      R v Hadfield CA337/06, 14 December 2006.

6      Hessell v R, above n 4.

Home detention

[17]     I  have  carefully  considered  the  pre-sentence  report  which  records  your eligibility and suitability for a sentence of home detention.  The Crown agrees.   I also require no persuading that the appropriate sentence in your case is a sentence of home detention.

[18]     In determining the length of the sentence of home detention I am required to carry out an evaluative exercise that reflects the purposes and principles of the Sentencing Act 2002.  The length of any period of home detention is not determined by a simple mathematical exercise.7

[19]     In my assessment, the Crown is right when it indicates a sentence of home detention of not less than seven months is appropriate in your case.  In my view a sentence of seven months’ home detention would:

(1)hold you accountable for the harm that you have done to your victims and the community;8

(2)promote in you a sense of responsibility for the harm that you have done;9

(3)       denounce your conduct;10

(4)       deter others from similar offending;11

(5)       protect the community from you;12 and

(6)be    the   least    restrictive    outcome    that    is    appropriate    in    the circumstances.13

7      R v Bisschop [2008] NZCA 229.

8      Sentencing Act 2002, s 7(1)(a).

9      Section 7(1)(b).

10     Section 7(1)(e).

11     Section 7(1)(f).

12     Section 7(1)(g).

13     Section 8(g).

Deferral

[20]     Mr Hardy-Jones has urged that I provide a further indulgence to  you by deferring the commencement of your sentence of home detention until 25 October

2014 because of the extreme difficulties that will be caused to your employer, and family if you are unable to continue with your employment until 25 October 2014.

[21]     Section 80W of the Sentencing Act 2002 confers jurisdiction to defer the commencement of your sentence of home detention by up to two months.  Deferral can only be on the basis of humanitarian grounds or if it is in the interests of justice to defer the start of the sentence of home detention.

[22]     I am satisfied that this is one of those rare occasions where the Court’s indulgence should be exercised in your favour.   I believe that deferral of the commencement of your home detention is justified on both humanitarian grounds and in the interests of justice.  Accordingly, I will defer the commencement of the sentence of home detention until 25 October 2014. Your bail will be varied to enable you to continue working and attending to the Serious Fraud Office in the interim.

Conclusion

[23]     Mr Burns, please stand.

[24]     I am sentencing you to a sentence of seven months’ home detention.

[25]     That sentence will commence on 25 October 2014. [26]         You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington

Hardy-Jones Clark, Blenheim for Prisoner