Andrews v The Queen - [2013] NZCA 281

IN THE COURT OF APPEAL OF NEW ZEALAND

CA159/2013
[2013] NZCA 281

BETWEEN	RAYMOND ANTHONY ANDREWS Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2013
Court:	Randerson, Courtney and Dobson JJ
Counsel:	W T Nabney for Appellant B D Tantrum for Respondent
Judgment:	4 July 2013 at 11:00am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

The appellant, Raymond Anthony Andrews, was convicted on 14 February 2013 following a jury trial in the Tauranga District Court of 11 charges under the Insolvency Act 1967:[1]
(a)Seven charges (counts 1–5,7,10) of being an undischarged bankrupt carrying on or taking part in the management or control of a business without reasonable cause and without the consent of the court or authority of the Official Assignee;[2]
(b)One charge (count 24) of obtaining credit of $100 or more without first informing the person giving him credit that he was an undisclosed bankrupt;[3]
(c)One charge (count 25) of obtaining property on credit by false representation without paying for the property;[4]
(d)Two charges (counts 19 and 20) of concealing property.[5]
[1]Mr Andrews was also acquitted of several other charges and pleaded guilty to three alternative charges during the trial.
[2]Insolvency Act 1967, ss 128A(1)(b) and 62(1)(a).
[3]Insolvency Act, s 128(1)(g)(i).
[4]Insolvency Act, s 126(1)(i)(i).
[5]Insolvency Act, s 126(1)(g)(i).
Judge Ingram sentenced Mr Andrews to 15 months imprisonment.[6] Mr Andrews does not challenge the term of the imprisonment but appeals the Judge’s refusal to grant him leave to apply for a substituted sentence of home detention. Mr Andrews asserts error by the Judge in placing too much weight on the nature of the offending and on the need for deterrence.
[6]R v Andrews DC Tauranga CRI-2009-070-6443, 13 March 2013.
Subsequent to filing his appeal against sentence Mr Andrews filed a notice of appeal against conviction outside the time permitted. He provided an affidavit explaining the reason for the delay. However, Mr Nabney, for Mr Andrews, advised that the appeal against conviction was to be abandoned. As a result, we do not need to deal with the issue of leave, nor with the substance of the conviction appeal.

Sentencing in the District Court

The offences with which Mr Andrews was charged were committed against the backdrop of his bankruptcy on 21 April 2008.
Counts 1 and 2 related to the management or control of Laserentals Ltd and The Laser Rental Company Ltd. These companies had been incorporated prior to Mr Andrews’ bankruptcy. An associate, Ms Porter, was listed as the director but it was Mr Andrews who controlled and directed the businesses, including employing staff and entering into business agreements. These acts were done during the course of his bankruptcy and without the approval of either the Official Assignee or the High Court.
Count 3 related to the management or control of Medprolasers/Medpro Ltd, a business relating to laser hair removal. Mr Andrews claimed to be the owner/operator of Medpro Lasers. He reached an arrangement with the owner…

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.

Continue reading Andrews v The Queen

Details

AGLC: Andrews v The Queen [2013] NZCA 281
Case: [2013] NZCA 281
Decision Date: 4 July 2013 at 11:00am

CaseChat Overview and Summary

Raymond Anthony Andrews appealed against his sentence, arguing that the sentencing judge had erred in refusing him leave to apply for a substituted sentence of home detention. The appeal was heard by Randerson, Courtney, and Dobson JJ in the Court of Appeal of New Zealand. The central issue was whether the sentencing judge had erred in concluding that imprisonment was the only practical sentence available, given the nature and seriousness of the offending and the need for deterrence. The Court of Appeal examined the facts of the case, where Mr Andrews, despite being an undischarged bankrupt, continued to manage and control several businesses, engaged in fraudulent activities, and concealed significant income from the Official Assignee. The judge had highlighted the seriousness of the offending, the lack of remorse shown by Mr Andrews, and the need to protect the public and uphold the integrity of the legislation. The Court of Appeal found that the judge had not erred in assessing the seriousness of the offending or the importance of deterrence. The offending was considered serious due to the number of charges, the period over which it occurred, the losses to third parties, and Mr Andrews' lack of remorse. The Court concluded that imprisonment was the only practical and appropriate sentence available in these circumstances.

The appeal was dismissed, and the sentence of 15 months imprisonment was upheld.

Orders