Bell v The Queen - [2014] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA57/2014
[2014] NZCA 210

BETWEEN	STUART CRELLIN BELL Appellant
AND	THE QUEEN Respondent

Hearing:	6 May 2014
Court:	O’Regan P, Courtney and Clifford JJ
Counsel:	R Maze for Appellant J E Mildenhall for Respondent
Judgment:	30 May 2014 at 9.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, Stuart Crellin Bell, pleaded guilty to seven counts of fraud, involving the fraudulent obtaining of investments in his company of $390,000 and of false insurance pay-outs of around $713,000.
On 22 January 2014 Mr Bell was sentenced by Judge Garland to a total of two years and three months’ imprisonment.[1]
[1]R v Bell DC Christchurch CRI-2012-009-2408, 22 January 2014.
Mr Bell now appeals that sentence as being manifestly excessive.

Factual background

Mr Bell was the chief executive officer of Black Box Spatial Ltd (Black Box), a software development company. Black Box was developing a programme to calculate rebates for road user charges.
Stephen and Jeremy McPhail were directors of Black Box. In May 2010, when Black Box required further capital investment, Mr Bell sent emails to Stephen McPhail, purporting to be either from Black Box customers or government agencies, which confirmed that the development of the road user charge rebate software was well advanced and had official approval. It subsequently transpired that the detail of those emails had been altered by Mr Bell to create that impression falsely.
In early 2011, further funds were required for Black Box. At this point Mr Bell sent Stephen McPhail a scanned copy of a payment advice summary for the benefit of Black Box from a government agency for the sum of $707,166.46. Inquiries subsequently showed that document to be forged, and that no payments were in fact due to Black Box as recorded on it.
The McPhails advanced debt funding to Black Box on the strength of that documentation.
Following the Christchurch earthquakes Mr Bell, on behalf of Black Box, falsely asserted to the company’s insurer, Vero, that some seven Black Box clients were in the process of using the road user charge rebate software to process data and claim rebates. Six forged contracts were subsequently provided to Vero. The sum of $713,129 was fraudulently obtained from Vero in that way.

The challenged sentencing decision

The Judge fixed a starting point of three years in respect of the Vero fraud, uplifted by one year for the fraud on the McPhails, giving an overall starting point of four years’ imprisonment. In determining that overall starting point, the Judge took into account the aggravating factors of the premeditation of the offending, the amount of the fraudulent benefit obtained (some $1.1 million) and the fact the Vero fraud was post-earthquake insurance fraud in Christchurch. Insurance companies were struggling to deal with the sheer volume of claims being made and were therefore, in the Judge’s assessment, more vulnerable to fraudulent claims than usual. Mr Bell’s…

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 Bell v The Queen

Details

AGLC: Bell v The Queen [2014] NZCA 210
Case: [2014] NZCA 210
Decision Date: 30 May 2014 at 9.30 am

CaseChat Overview and Summary

Stuart Crellin Bell appealed against his sentence for seven counts of fraud, arguing it was manifestly excessive. The court assessed the amount of fraudulent benefit obtained and the breach of trust involved, and found the starting point of four years' imprisonment was within the appropriate range. The appeal was dismissed as the sentence imposed was not manifestly excessive. The court found that the Judge had considered relevant factors such as the nature of the offending, the amount involved, and the impact on victims, and that the sentence was appropriate given the circumstances. The court also found that the settlement of the civil claim did not reduce the culpability of the appellant. The court held that the Judge had allowed a generous discount for the guilty plea and remorse, and that the final sentence was not manifestly excessive.

Final orders: The appeal against sentence is dismissed.

Orders