Following a jury trial in the District Court at Auckland, Raymond Andrews was convicted on various charges of breaching the conditions of his bankruptcy and fraudulent conduct. Mr Andrews appeals his convictions. He alleges that his trial counsel failed to prepare adequately and advance his defence in accordance with his instructions and this resulted in a miscarriage of justice. In support of his appeal, Mr Andrews also alleges that trial counsel failed to prepare a brief of evidence, to discharge his duties of cross-examination and gave an inadequate closing address, together with a series of subsidiary complaints relating to the conduct of his counsel.
Mr Andrews was sentenced by Judge D J Sharp on 2 July 2019 to a term of six and a half years’ imprisonment.[1] He appeals that sentence primarily on the basis that it was manifestly excessive.
Background
2008 bankruptcy
[1]R v Andrews [2019] NZDC 12700 [Sentencing notes].
On 21 April 2008, Mr Andrews was adjudicated bankrupt by the High Court. As a result, he was obliged to notify the Official Assignee of changes to his income and employment and to disclose all property in his possession. He was also prohibited from managing a business or being a company director without the consent of the court or the Official Assignee.
2013 prohibition on being involved in the management of companies
In February 2013, Mr Andrews was convicted of dishonesty offending and offences against the Insolvency Act 2006.[2] Mr Andrews was sentenced to 15 months’ imprisonment for this offending.[3] Because of that offending, the Registrar of Companies notified Mr Andrews on 28 March 2013 that he was prohibited from being involved directly or indirectly in the management of a company for five years without the consent of the court.[4]
The present offending
Taking part in the management of a business whilst prohibited (charge 1)
[2]These charges related to Mr Andrews’ involvement in the management or control of companies involved in the laser hair removal and beauty therapy industry during 2008 and 2009. Following trial he was convicted on charges of being involved in the management or control of a business whilst bankrupt without the consent of the Official Assignee, concealing property from the Official Assignee, obtaining credit without disclosing his status as an undischarged bankrupt and obtaining property on credit by false representation.
[3]R v Andrews DC Tauranga CRI-2009-070-6443, 13 March 2013.
[4]Companies Act 1993, s 382(1).
Mr Andrews was charged with taking part in the management of a…
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
AGLC
Andrews v The Queen [2021] NZCA 412
Case
[2021] NZCA 412
Decision Date
CaseChat Overview and Summary
In Andrews v The Queen, the Court of Appeal considered an appeal against conviction and sentence by Raymond Andrews. Andrews was convicted on various charges of breaching the conditions of his bankruptcy and fraudulent conduct. Andrews appealed his convictions on the basis that his trial counsel was not sufficiently prepared and that the conduct of his defence at trial was inadequate. The appeal against conviction was dismissed. The Court found that the absence of a brief of evidence did not result in a failure by counsel to advance Andrews’ defence in accordance with his instructions or that Andrews’ chances of obtaining a different verdict were prejudiced. The appeal against sentence was also dismissed. The Court found that the Judge did not err in his assessment of the amount of loss suffered by Andrews’ victims or in adopting a starting point of six years’ imprisonment.