R v Jones [2016] NZHC 1660 (21 July 2016)

Last Updated: 8 September 2016

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 stealing their money using the following means:

(a) Transferring money from their bank accounts to yours.

(b) Setting up automatic payments from their bank account to your “New

World Xmas” account.

(c) Withdrawing cash from ATM machines using their bank cards. (d) Spending money at service stations using their EFTPOS cards.

(e) Receiving and keeping for yourself a Samsung Galaxy Y mobile phone intended for Patrick.

(f) Obtaining for yourself an Auckland Energy Consumer Trust dividend cheque that was payable to Carollyne.

(g) Keeping money sent from Patrick’s family and intended for Patrick.

[8] Your offending involved 86 instances of theft. The total amount stolen was

$5,962.80 plus the value of the mobile phone.

Victim impact statements

[9] Dr Valerie McGinn, a clinical neuropsychologist, has prepared victim impact statements for both victims. I have found them very useful. In them, she details the nature and extent of your victims’ disabilities. Both are assessed as having IQs below 99 per cent of others of the same age. Both experience seizures and have other health problems. Dr McGinn emphasised the considerable extent to which both victims are reliant on others for lifestyle and health decisions as well as financial and property management.

[10] Dr McGinn details the way in which you communicated with the victims’ family members and manipulated them into trusting you. For example, Carollyne’s sister said that you “made [yourself] out to be a saviour and I trusted him entirely”. Patrick’s brother said words to similar effect.

[11] Dr McGinn emphasised that your offending has impacted on the victims’ relationships with each other, their family members and their caregivers. The reality of their situation is that they need to be able to totally trust those who are employed to care for them. The destruction of trust is one of the more profound effects of your offending.

[12] In respect of Carollyne, Dr McGinn reports:

It is difficult to separate the offending from the modus operandi Mr Jones used to steal from Carollyne and her husband. The overall effect described to me has been that Carollyne has felt scared to live in her own home. She has had trouble sleeping, feels anxious and suspicious about others and her self- esteem is greatly diminished. As her sister described, I would agree that there has been a loss of the innocence and unguarded trust that this disabled couple had towards everyone in their lives previously. This is a direct result of the betrayal of trust that Mr Jones has committed by stealing from a severely disabled woman while being employed to protect her and safeguard her well-being.

[13] In respect of Patrick, Dr McGinn says:

My impression is that Patrick has more emotional resilience than his wife, but his brother who knows him best considers that the emotional damage is

‘deep seated’. After being ‘free and easy and trusting everyone’ previously, Wally considers that Patrick is now ‘unsure of himself and doesn’t trust’ as a result of Mr Jones’ offending.

Pre-sentence report

[14] The pre-sentence report identifies your inability to respect professional boundaries and a heightened sense of entitlement as the main factors contributing to your offending. No rehabilitative needs are identified as contributors to the offending.

[15] Your risk of further offending is assessed as low given you have no previous convictions. Your risk of harm is assessed as low due to the non-violent nature of your offending.

[16] I regard with concern the report writer’s description, confirmed by Mr Stevens in his submissions earlier, that you do not believe any of the money you withdrew was for your personal advantage. In other words, you do not accept responsibility for your offending and you show no remorse. You did say you are willing to make reparation at the rate of $50 per week, but when I came down here this morning I could not see how you would do that even if you were able to continue earning at your reported rate of $200 per week plus commissions. However, Mr Stevens has assured me this morning that you are committed to making reparation and that your family considers it to be a debt which is to be repaid by the family as a whole. I accept Mr Stevens’s submission that you and your family will make reparation at the rate of $50 per week, and I will take that into account in reaching my final sentence.

[17] I note that your doctor reports that the Court proceedings have been stressful for you and that you have symptoms of depression. You are 76 years of age and your health is not robust.

Restorative justice

[18] You were willing to participate in a restorative justice process. But, understandably, your victims were not.

Mitigation for personal factors

[19] I am required to take into account your previous good character to the extent that it is applicable in the case. Ordinarily, Mr Jones, a man like you, with no previous convictions and the support of your family and employer, could expect a reduction in sentence. But in your case, available credit is limited. You stole from your victims on 86 occasions over a period of nearly two years. Your dishonesty was a gross breach of trust. You do not accept responsibility for your offending and you show no remorse.

[20] Overall, I am prepared to give a discount of five per cent for your personal mitigating factors. That takes the start point to two years four-and-a-half months.

[21] I reduce this by the 20 per cent I said I would allow you for your plea of guilty. The end sentence (rounded) would, therefore, be one year 11 months’ imprisonment.

[22] Because of the offer of reparation which I now accept is genuine, I will further reduce that sentence by one month to an end sentence of one year 10 months’ imprisonment.

Home detention

[23] I must now consider commuting the sentence of imprisonment to one of home detention.

[24] I consider the principles of denunciation and deterrence to be of great significance in your case given your abuse of your position of trust in respect of these very vulnerable people. The issue is, which form of sentence qualifies as the least restrictive sentence to impose?

[25] In your favour are:

(a) Your lack of previous convictions. (b) It was not violent offending.

(c) A sentence of imprisonment is not required to protect the community given your low risk of re-offending.

(d) Your age (76) and state of health.

(e) The overall sum that you stole is not a large sum, as such offending goes. Routinely, the Courts impose sentences of home detention in response to social welfare fraud involving far larger sums of money. Of course, the breach of trust associated with such offending is of a very different kind.

(f) Your home address qualifies in all respects for a sentence of home detention.

(g) You were willing to enter into a restorative justice process. [26] Against home detention are:

(a) The number of instances of theft (86), involving two victims.

(b) Your lack of remorse and your limited ability to make reparation. (c) Your gross breach of trust.

(d) The need to hold you accountable for the harm you have done your victims.

[27] I have decided to sentence you to a period of home detention. As the Court of Appeal has said,² home detention carries with it, in considerable measure, the principles of deterrence and denunciation. The restriction on liberty is high.

[28] In my view, given your lack of previous convictions, your age and state of health, the comparatively small sum you stole, and your offer to make reparation, a

_{sentence of 11 months’ home detention meets the purposes of sentencing.}

² R v Iosefa [2008] NZCA 453 at [41].

Sentence

[29] Please stand, Mr Jones.

[30] Mr Jones, I sentence you to 11 months’ home detention:

(a) You are to travel directly to 14 Bard Place, Golflands, Auckland and await the arrival of a probation officer and security officer. You are to co-operate with the fitting of the home detention monitoring device.

(b) You are to reside at 14 Bard Place, Golflands, Auckland for the duration of your sentence.

[31] I make a reparation order in the sum of $5,962.80 which you are to discharge by paying the sum of $50 per week.

[32] The Crown offers no evidence on the remaining charges against you as set out in the Amended Crown Charge Notice dated 3 June 2016. I discharge you on those charges.

_{[33] You may stand down.}

Brewer J