R v Jones - [2016] NZHC 1660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-10107 [2016] NZHC 1660

THE QUEEN

v

DAVID STANLEY JONES

Charges:
Plea:

Theft (representative charge)

Guilty

Counsel:

R J A Marchant for Crown
R Stevens for Prisoner

Sentenced:

21 July 2016

SENTENCING NOTES OF BREWER J

Solicitors: Kayes Fletcher Walker (Auckland) for Crown
Public Defence Service (Auckland) for Prisoner

R v JONES [2016] NZHC 1660 [21 July 2016]

Introduction

[1] Mr Jones, you pleaded guilty on 7 June 2016 to one representative count of theft under s 219 of the Crimes Act 1961. The maximum penalty for this offence is seven years’ imprisonment.

[2] You entered your plea of guilty immediately after receiving a sentence indication from me.1 The indication was a starting point of two years six months’ imprisonment, with a reduction of 20 per cent for your plea of guilty. I did not give an indication of how that starting point might be reduced for your personal circumstances. Nor did I give you any view on whether home detention might be available. I simply did not know enough about you and I had not received the victim impact statements.

[3] Having now read the pre-sentence report and the victim impact statements, and having heard from the lawyers, I see no reason to depart from the sentence indication I gave you. I adopt a starting point of two years six months’ imprisonment and I will reduce the end sentence by 20 per cent to reflect your plea of guilty. Really, this sentencing is about whether you should be given further discounts for your personal circumstances and whether you should receive a sentence of home detention instead of a sentence of imprisonment.

Factual background

[4] Your victims, Carollyne and Patrick Brady, are a married couple. Both of them suffer from significant intellectual disability. Both of them suffer from very significant health problems. They live together aided by a service called “Supported Living” which provides support to help disabled people live independently.

[5] You were appointed by the Intellectual Disability Empowerment in Action Services Limited (IDEA) as the “Supported Living Worker” for both victims. You acted as their caregiver for about two years from November 2011 to October 2013
during which time you stole from them.

1 R v Jones [2016] NZHC 1210.

[6] The summary of facts gives a brief glimpse of the nature of your relationship with Carollyne and Patrick:

The complainants would address the defendant as “Dad” in the course of
their association.

The defendant was in full control of the complainants’ day-to-day activities to the extent that they were not permitted to speak to anyone in his absence and would put their signatures anywhere when he directed them to do so.

The defendant had full knowledge of the complainants’ financial arrangements by virtue of his role. He knew their account numbers, PIN, personal access codes, passwords and online login details.

[7] From November or December 2011 to October 2013, you abused your position as their caregiver by…

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 Jones

Details

AGLC: R v Jones [2016] NZHC 1660
Case: [2016] NZHC 1660
Decision Date: 21 July 2016

CaseChat Overview and Summary

The defendant, David Stanley Jones, was sentenced for theft after pleading guilty to one representative count of theft under section 219 of the Crimes Act 1961. The maximum penalty for this offence is seven years' imprisonment. The court adopted a starting point of two years and six months' imprisonment, reduced by 20% for the defendant's guilty plea. The central issue for the court was whether further discounts should be applied for the defendant's personal circumstances and whether home detention would be a more appropriate sentence than imprisonment. The court found that the defendant's personal circumstances warranted a five percent reduction in sentence, bringing the starting point to two years and four-and-a-half months. Additionally, the court accepted the defendant's offer to make reparation, which led to a further reduction of one month. The court ultimately decided on a sentence of 11 months' home detention, considering the principles of denunciation and deterrence, the defendant's lack of previous convictions, and his low risk of re-offending.

The court considered the breach of trust and the harm caused to the victims, Carollyne and Patrick Brady, a married couple with significant intellectual disabilities and health problems. The defendant, as their caregiver, abused his position by stealing their money over 86 instances, amounting to $5,962.80 plus the value of a stolen mobile phone. The court emphasised the importance of holding the defendant accountable for his actions and the need to restore the trust that had been broken. The court also recognised the defendant's willingness to participate in a restorative justice process, although the victims were unwilling to engage. The court sentenced the defendant to 11 months' home detention, with a reparation order of $5,962.80 to be paid at a rate of $50 per week. The court discharged the defendant on the remaining charges as the Crown offered no evidence.

Orders