Ursua v Police - [2023] NZHC 3479

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-465

[2023] NZHC 3479

BETWEEN
JAN BRYON DUQUE URSUA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 November 2023

Appearances:

C M Chester-Cronin for Appellant J L Gibson for Respondent

Judgment:

1 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 1 December 2023 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
C M Chester-Cronin, Barrister, Auckland Meredith Connell, Auckland

URSUA v NEW ZEALAND POLICE [2023] NZHC 3479 [1 December 2023]

[1] Mr Ursua was sentenced to two years and seven months’ imprisonment following guilty pleas to 43 charges. The charges are:

(a)obtaining by deception (over $1,000) (x 25);1

(b)accessing computer system for a dishonest purpose (x 2);2

(c)altering a document with intent to defraud (x 1);3

(d)obtaining by deception ($500–$1,000) (x 6);4

(e)failing to carry out obligations in relation to a computer search (x 1);5

(f)intent to access a computer system for a dishonest purpose (x 1);6

(g)obtaining by deception (less than $500) (x 2);7 and

(h)theft of property (less than $500) (x 5).8

[2] Prior to the guilty pleas being entered, Judge A M Fitzgibbon had provided a sentencing indication on 3 May 2023.9 That sentencing indication consisted of:

(a)a starting point of 40 months’ imprisonment for the leading offending;

(b)an uplift of two months for the other offending, resulting in an overall starting point of 42 months’ imprisonment; and

(c)a 25 per cent discount for any guilty plea.

1      Crimes Act 1961, ss 240(1)(a) and 241(a). The maximum penalty is seven years’ imprisonment.
2      Section 249(1). The maximum penalty is seven years’ imprisonment.
3      Section 258. The maximum penalty is 10 years’ imprisonment.
4      Sections 240(1)(a) and 241(b). The maximum penalty is one year’s imprisonment.
5      Search and Surveillance Act 2012, s 178. The maximum penalty is three months’ imprisonment.
6      Crimes Act, s 249(2). The maximum penalty is five years’ imprisonment.
7      Sections 240(1)(a) and 241(c). The maximum penalty is three months’ imprisonment.
8      Section 223(d). The maximum penalty is three months’ imprisonment.
9      New Zealand Police v Ursua CRI-2022-044-1596, 3 May 2023 (sentencing indication).

[3] This was summarised as a total of approximately two years and six months’ imprisonment, but it was suggested that the appellant “might get under the 24-month mark which enables the Court to consider an electronically monitored sentence”.10

[4]At sentencing, the calculation was as follows:11

(a)a starting point of 40 months;

(b)an uplift of two months for further offending;

(c)a discount of 25 per cent for the guilty plea;

(d)a two-week discount for remorse; and

(e)a reparation payment of $5,000.

[5] The sentence is appealed on the grounds that it is manifestly excessive. Counsel for the appellant submits that:

(a)the starting point was excessive because it did not factor in an assessment of the motivation for his offending; and

(b)the discounts for mitigating factors were insufficient because:

(i)a further discrete discount of…

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: [2023] NZHC 3479
Decision Date: 1 December 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Jan Bryon Duque Ursua against his sentence, which was imposed after he pleaded guilty to multiple charges of deception and theft. Ursua argued that the sentence was manifestly excessive, claiming that the starting point was too high and that the discounts for mitigating factors were insufficient. The court was tasked with determining whether the sentence imposed by the District Court was correct and whether there were any errors that required correction. The court also considered whether additional mitigating factors, such as the appellant's background and prospects for rehabilitation, warranted a reduction in sentence.

The court found that the starting point of 42 months' imprisonment was appropriate given the nature and extent of the offending, which involved significant breaches of trust and was largely premeditated. The court rejected the appellant's claim that his personal motivations should have influenced the starting point, noting that such factors are considered in the second stage of sentencing. Regarding the discounts for mitigating factors, the court concluded that the appellant was not entitled to an additional discount for his background or previous good character. The court found that while the appellant's affidavit provided some insight into his background, it did not demonstrate a causative link to the offending. The court did, however, consider it appropriate to give some weight to the appellant's prospects for rehabilitation, which had not been considered at the time of sentencing. Nevertheless, the court decided not to amend the sentence, finding that any additional discount could be outweighed by an increase in the starting point. The court ultimately upheld the sentence as within the range that could be justified by accepted sentencing principles.

The appeal was dismissed, and the original sentence was affirmed.

Orders