Jackson v Serious Fraud Office [2012] NZHC 3297 (6 December 2012)

Last Updated: 15 April 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000251 [2012] NZHC 3297

JOHN WILLIAM JACKSON

Appellant

v

SERIOUS FRAUD OFFICE

Respondent

Hearing: 4 December 2012

Counsel: Appellant in person

J Dixon for Respondent

Judgment: 6 December 2012

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Thursday, 6 December 2012 at 4.45pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, DX CP24063, Auckland 1140. Email: [e-mail]

Copy to:

JW Jackson, C/o Invercargill Prison.

JACKSON V SERIOUS FRAUD OFFICE HC AK CRI-2012-404-000251 [6 December 2012]

Introduction

[1] John William Jackson appeals against a sentence imposed upon him following the entry of guilty pleas on six charges of accessing a computer for dishonest purposes. He appeals against an end sentence of two years and five months’ imprisonment. Mr Jackson appeared in person by video link from prison.

[2] Mr Jackson arrived in New Zealand from South Africa in August 2000 and worked as a project engineer. He formed a business association with Mr and Mrs Chambers and eventually formed a company with them which would secure contracts for the supply and installation of air conditioning systems. Mr Jackson became a director of that company. Then, on more than 70 occasions between June

2006 and August 2009, he misappropriated an aggregate of $571,340.66 from the company. He did this by transferring sums of money using internet banking from the company to bank accounts associated with him and his family. The money has not been repaid. His conduct has had a severe financial impact on the Chambers.

[3] In Mr Jackson’s comments to probation officers he seems to have taken the view that he was entitled to take money because he was being underpaid and doing too much work. There is a question as to whether he feels any sincere remorse for what he has done. In the first probation report it was commented that he expressed little insight and limited remorse, and in the second report one year later it was noted that more remorse was being expressed but there was still a query as to whether it was genuine.

[4] Mr Jackson has no previous criminal history.

The decision

[5] In a detailed decision the Judge set out the background and discussed the victim impact reports. She noted that there were no victim impact reports that were in the form of or had been verified under the Victims’ Rights Act 2002. Despite a challenge to them being relied on by the Court, she formed the view that those reports should be considered and noted that they provided a grim picture of the

Chambers’ financial position. They had lost a considerable amount of money and were fearful of losing their home. They were required to pay the creditors after Mr Jackson’s fraud came to light. Their retirement funds had been used to repay loans and overdrafts incurred because of the fraud. Their children have also been considerably affected.

[6] The Judge noted that there had been a serious breach of trust, and that the

$571,000 taken was a considerable sum. The scale of offending was noted as well as the efforts that were made to conceal the illegitimate payments. The Judge concluded after reviewing the facts and the authorities that the correct starting point was three years and seven months’ imprisonment. She reduced the sentence by three months to take into account the fact that Mr Jackson was 61 years old and had no previous convictions and suffered from ill-health. A discount of 25 per cent was applied for the guilty plea to reach the net sentence of two years and five months’ imprisonment.

[7] Mr Jackson, who appeared for himself, challenged the decision on three bases.

First ground – statement by Serious Fraud Office

[8] Mr Jackson claims that counsel for the Serious Fraud Office (“the SFO”) at the time of his sentencing, Mr G Bostock, stated that the SFO would not oppose a sentence of home detention. It appears to be the case that he is alleging that, because the SFO has resiled from that position, this is a proper basis for appeal.

[9] Mr Bostock gave evidence. He denied making any statement that the SFO would not oppose home detention. He accepted that he may have indicated to the appellant, or his counsel, that the imposition of a sentence of imprisonment was not a foregone conclusion, but he would not have gone any further than that. Mr Bostock was cross-examined by Mr Jackson.

[10] I have no hesitation in accepting Mr Bostock’s evidence. It is supported

entirely by the documents I have before me. His initial sentencing submissions were

forwarded to Mr Jackson’s counsel on 2 March 2011. In those submissions he asked for a sentence of imprisonment with a starting point in the region of four years. There was no protest by Mr Jackson or his counsel. It is to be noted that the transcript of an early call of this matter on 26 January 2011 recorded Mr Jackson’s defence counsel at the time, Ms Vidal, saying that in her discussions with the SFO it had been indicated to her that prison was not a “foregone conclusion”. Her observation went no further than that. In further submissions filed prior to the actual sentencing on 27 March 2012 a sentence of imprisonment was again sought. The pre-sentence report proposed a sentence of imprisonment, although a home detention report was provided.

[11] I accept Mr Bostock’s evidence. I found him to be a careful and truthful witness, and indeed the accuracy of his recollection was not challenged by Mr Jackson in cross-examination.

[12] I also observe that Mr Jackson appears to have co-operated from the beginning and indicated a guilty plea at an early stage. This was not in any way dependent on the position of the SFO as to home detention. The SFO was throughout seeking a significant term of imprisonment. I also note that even if the SFO had not opposed home detention, it is most unlikely that home detention would have been granted. The ultimate discretion would have rested with the Judge. For the reasons I give later, I doubt whether the Judge would ever have considered home detention an option.

[13] This ground of appeal fails.

Second ground – summary of facts

[14] The appellant contests some of the facts that were in the summary presented to the Judge, and seeks to place some reliance on facts that were in an original summary of facts that was later changed.

[15] The summary of facts was subject to considerable discussion between the parties. The first draft was prepared in early 2011. When the charges were called in

the District Court at Gore on 26 January 2011 the Court asked the prosecution and Ms Vidal whether he should take the summary as read. Ms Vidal advised that he could take the summary as read.

[16] There was, however, then a second summary of facts prepared. This was subject to further change. Finally there was a summary of facts prepared after discussion between counsel for the SFO and Mr Jackson. I have a copy of that summary of facts. It has noted on it “agreed as at 7/12/11”. The amount misappropriated has changed from $604,779.87 to $571,340.67. This was the summary that was before Judge Sinclair when she sentenced Mr Jackson on

29 March 2012.

[17] I accept Mr Dixon’s submission for the SFO that this amended summary had been arrived at after lengthy and careful discussions between the parties. There had been disagreements about aspects of the summary at earlier times, but these had been resolved. In terms of quantum there had been an adjustment in Mr Jackson’s favour. In the light of these circumstances and the reliance placed by both parties at the time of sentencing in 2012 on a summary of facts which was an agreed compromise document, it is not open to Mr Jackson now to challenge that summary. He is bound by it.

[18] If there was to be a challenge to that summary of facts, it should have been clearly signaled prior to sentence and there could have been a disputed facts hearing. In fact, to the contrary, the Court was given a document which reflected a consensus. It was truly an agreed summary of facts and there was no injustice to Mr Jackson.

[19] This ground cannot succeed.

Third ground – victim impact statements

[20] The appellant contended that the verification of four victim impact statements before the Court was not in a satisfactory form. This matter was dealt with in detail

_{by Judge Sinclair in her sentencing notes. She observed:}1

1 Serious Fraud Office v Jackson DC North Shore CRI-2010-044-8409, 29 March 2012 at [18].

With regard to the form and verification of the information obtained from the victims, s 19 of the Victims’ Rights Act states, “The information ascertained from a victim under s 17 must be put into writing.” Section 19(2) states, “Information recorded under ss 1 may be verified in the way stated in ss 3 or

4”. I note that the word “may” is used. Therefore I consider it is not mandatory that a verification statement is required. The victim impact statements are all in writing and appear to be signed by the victims. Although there was no verification of them at the conclusion of the statements, I do not see this as a breach.

[21] I agree with this summary. Verification is not mandatory under s 19. The word used in s 19(2) and (3) is “may”. The weight placed upon any statement may vary depending on what is said and the circumstances of the verification. But a failure to observe the verification procedure does not make the document inadmissible.

[22] The Judge was indeed cautious about the weight she placed on aspects of the material in the victim impact statements, and she chose not to refer to particular sentences in the statements. She set out in her decision the information she did use from the victim impact statements, and the conclusions that she drew were cautious and appropriate. It was open to Mr Jackson to contest any particular factual matters, or to put any particular facts he wished to the Court. There was nothing unfair in the process adopted.

[23] This ground of appeal fails.

Fourth ground – was the sentence manifestly excessive?

[24] The Judge carefully reviewed relevant comparable authorities. In R v Varjan2

it was stated in relation to this sort of fraud sentencing:3

Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

2 _{R v Varjan CA97/03, 26 June 2003.}

3 At [22]–[23].

It is in the assessment of culpability that comparison with other cases is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.

[25] Given that there were 70 fraudulent transactions and a real loss to the victims of $571,340.67, the starting point fixed by the Judge of three years and seven months was generous to Mr Jackson. Mr Jackson had fraudulently breached the trust placed in him over a three year period in taking a very large amount of money, none of which he repaid. His actions have had very serious implications for the victims. In those circumstances a starting point of over four years could have been well justified. Mr Jackson should regard himself as fortunate in this regard.

[26] Further, the three month discount for personal factors, given the lengthy period of offending and Mr Jackson’s complete lack of remorse, was appropriate. Moreover Mr Jackson received the full discount for his guilty plea, despite a strong prosecution case. The end sentence of two years and five months’ imprisonment was ultimately generous to Mr Jackson rather than excessive.

[27] This ground of appeal fails.

Result

[28] The appeal is dismissed.

...................................

Asher J