A prolific fraudster has failed in a bid to have some of his sentences increased, with the hope that doing so would counterintuitively help him get out of prison sooner.
Thomas Davies was handed numerous concurrent sentences of varying lengths in January after pleading guilty in Auckland District Court to 29 fraud and theft charges.
The 38-year-old had used a University of Auckland student email account and a fake driver’s licence with the personal details of an electrical business owner to swindle over $110,000 – much of it trade debt – from multiple victims.
His latest stretch of offending, which lasted five months, ended with his arrest last April.
Judge Claire Ryan ordered in January that the longest of his many concurrent sentences be two years and two months’ imprisonment – just past the two-year threshold at which judges can consider swapping a prison term with a non-custodial alternative like home detention.
During the appeal in the High Court at Auckland this week, defence lawyer Johann Schlebusch first asked Justice Mathew Downs to consider 5% in extra discounts for his client’s background and rehabilitation efforts, which would result in a sentence of under two years.
Davies had completed the recovery-focused Salvation Army Bridge Programme while on bail and was halfway through the Odyssey rehabilitation programme when he was sentenced to prison, his lawyer said, adding that his client had excelled in the programmes and was disappointed he couldn’t finish what he started.
But Justice Downs noted that the district court judge had already allowed a 10% discount for Davies’ rehabilitation efforts and another 10% for his addiction to methamphetamine, before adding five months for his extensive criminal history.
“He knows how to walk the walk and talk the talk ... and then he reoffends,” Judge Ryan had pointed out in January.
Those discounts were “careful and considered”, Justice Downs determined at the end of the short hearing, declining to declare the sentence manifestly excessive.
But then Schlebusch proposed a seemingly opposite idea that could also theoretically help his client - increasing every one of the concurrent sentences to two years and two months’ imprisonment.
Parole guidelines in New Zealand mandate that prisoners serving sentences of over two years can begin to apply for parole after one-third of the sentence is served. But for sentences of two years and under, half the sentence has to be served before a petition for early release can be considered.
Because Davies’ lesser concurrent sentences were between 10 months’ and two years’ imprisonment, he has to serve at least a year before he can apply for parole. But if they were all two years and two months, he could begin to apply for parole after just under nine months.
Parole eligibility does not, however, guarantee early release.
Schlebusch acknowledged his request was unusual, explaining that he had never come across such a situation in his legal career.
Prosecutor Caitlin Anyon-Peters agreed the parole issue was “slightly unfortunate and perhaps unusual”.
“The police cannot really take a position other than to say it’s in the court’s hands,” she said, emphasising that police were solidly opposed to any decrease in the sentence.
But Justice Downs was not persuaded he had the authority to address the issue.
“Forgive me, I can’t just fiddle with a sentence,” he told the defence lawyer.
“The court may intervene if and only if there is an error in the sentence.
“...There is no such error.”
Davies had 158 prior convictions, it was noted at his sentencing hearing.
Among the items illegally obtained during Davies’ latest crime spree was nearly $20,000 in equipment commonly used to operate clandestine meth labs.
Using the stolen identity of the electrical business owner, he opened a trade account with Bunnings, placing multiple orders there and with other New Zealand retailers. A student at the University of Auckland at the time, he also used his email address to purchase thousands of dollars in gift vouchers that were charged to the school.
“I apprehend that none of this money is recoverable,” Justice Downs said.
In addition to the fraud charges, police noted that he took a car for a test drive – using his fake driver’s licence – and did not return it. The petrol was also stolen.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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