Blake v The Queen - [2018] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA658/2017
[2018] NZCA 204

BETWEEN	DAVID BLAKE Appellant
AND	THE QUEEN Respondent

Hearing:	22 May 2018
Court:	French, Ellis and Woolford JJ
Counsel:	R A A Weir for Appellant J E Mildenhall for Respondent
Judgment:	20 June 2018 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe concurrent sentence of 24 months’ imprisonment in relation to the Q Technology Ltd participation charge is quashed and a concurrent sentence of 20 months’ imprisonment is substituted.
CThe sentence of reparation is quashed.

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REASONS OF THE COURT

(Given by Ellis J)

Following a jury trial Mr Blake was convicted on three charges under the Companies Act 1993, namely:
(a)one charge of acting as a promoter of a company (Hygiene Foundation Ltd) between 1 December 2011 and 7 October 2012 whilst prohibited and without leave of the Court to do so;
(b)one charge of participating in the management of a company (Hygiene Foundation Ltd) between 8 October 2012 and 25 October 2013 whilst prohibited and without leave of the Court to do so; and
(c)one charge of participating in the management of a company (Q Technology Ltd) between 8 October 2012 and 21 March 2013 whilst prohibited and without leave of the Court to do so.
On 17 November 2017, he was sentenced to concurrent sentences of two years and four months’ imprisonment and two years respectively for the two management charges, and two years and two months’ imprisonment for the promoting charge.[1] He was also directed to make good on an offer of $20,000 reparation by 1 December 2017.[2]
[1]R v Blake [2017] NZDC 28774.
[2]At [152].
Although he initially filed an appeal against both conviction and sentence, the appeal against conviction has been formally abandoned. And as regards the sentence appeal, his only concern is with the concurrent sentence of two years’ imprisonment imposed for the management charge relating to Q Technology Ltd.
We observe at the outset that a successful appeal in relation to his sentence on that charge would not result in a change to the final sentence but would have a positive effect on his parole date. We return to that point later.

Background

On 10 February 2010, Mr Blake was prohibited from being a director or promoter of, or in any way, whether directly or indirectly, being concerned in or taking part in the management of, a company, for a five-year period, unless he first obtained the leave of the Court.[3] That prohibition flowed from his conviction on five charges under the Insolvency Act 1967 and the Insolvency Act 2006 for taking part in the management of a business while he was an undischarged bankrupt (between 2006 and 2008).[4] Self-evidently, the prohibition expired in February 2015.
[3]Companies Act 1993, s 382(1).
[4]He received a sentence of community work.
In late 2011, the Companies Office became aware that Mr Blake was registered as a director 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.

Continue reading Blake v The Queen

Details

AGLC: Blake v The Queen [2018] NZCA 204
Case: [2018] NZCA 204
Decision Date: 20 June 2018 at 12.30 pm

CaseChat Overview and Summary

The case of Blake v The Queen involved an appeal by David Blake against his sentence. Blake had been convicted on three charges under the Companies Act 1993 and was sentenced to concurrent terms of imprisonment for his involvement in the management of two companies while prohibited from doing so. The appeal focused on the concurrent sentence of two years' imprisonment for his participation in the management of Q Technology Ltd. The primary issue was whether this sentence was manifestly excessive. The Court of Appeal found that the sentence for the Q Technology Ltd charge was outside the available range, primarily due to the lesser seriousness of the offence compared to the lead charge relating to Hygiene Foundation Ltd. The court substituted a sentence of 20 months' imprisonment for the Q Technology Ltd charge and quashed the sentence of reparation.

The Court of Appeal began by noting that the appeal was not about the overall length of Blake's sentence but rather about the proportionality of the sentence for the Q Technology Ltd charge. The court acknowledged that the seriousness of the Q Technology Ltd management charge was considerably less than that of the Hygiene Foundation Ltd charge, both in terms of the duration of the offending and the losses caused. The court found that a sentence of 24 months for the Q Technology Ltd charge was disproportionate when compared to the 28-month sentence for the lead charge. The court also considered the discount given by the sentencing judge for an anticipated reparation payment, which had not been made, further justifying the reduction in the sentence to 20 months. The appeal against the reparation sentence was also allowed as the payment had not been made.

Orders