Cooper v Serious Fraud Office - [2014] NZHC 806

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-359 [2014] NZHC 806

BETWEEN
GLENN WILLIAM COOPER

Appellant

AND

SERIOUS FRAUD OFFICE

Respondent

Hearing: 14 April 2014

Counsel:

T Clee for Appellant
T Simmonds for Respondent

Judgment:

16 April 2014

JUDGMENT OF KATZ J

This judgment was delivered by me on 16 April 2014 at 1:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Acting Solicitor: M Williams, Serious Fraud Office, Auckland

Counsel: T Simmonds, Auckland
T Clee, Auckland

COOPER v SERIOUS FRAUD OFFICE [2014] NZHC 806 [16 April 2014]

Introduction

[1] On 16 January 2013, the appellant, Mr Glenn Cooper, entered guilty pleas in the Manukau District Court to five charges (each laid indictably) of dishonestly using a document pursuant to s 228(1)(a) of the Crimes Act 1961. On 29 November
2013, Mr Cooper was sentenced by Judge S A Thorburn to a term of 19 months’ imprisonment, together with an order for reparation of $25,000. Mr Cooper now appeals that sentence on two grounds:

(a) the sentence imposed on him was manifestly excessive, due to insufficient discounts being provided to account for his remorse and guilty pleas; and

(b) the Judge was wrong to impose a sentence of imprisonment

(and reparation) rather than home detention.

Factual background

[2] Mr Cooper describes himself as a property investor. He was also involved with putting together property deals and acting as a broker.

[3] During 2011 Mr Cooper was involved in a number of property transactions, involving properties in Tokoroa and Manurewa. His general modus operandi was to purchase a property at mortgagee sale using either an associated company, a friend or a relative as the purchaser. He then on-sold these properties at an increased price to people who were heavily indebted, purportedly in order to assist them to consolidate their debts. For example, his first victim responded to a debt consolidation advertisement that he had placed in the local newspaper.

[4] False sale and purchase agreements (concealing Mr Cooper’s interest in the properties from banks and investors) and misleading loan application forms were prepared by Mr Cooper and submitted to banks to obtain funding to purchase the properties. The vendors listed on the agreements were generally the original owners, who had already sold their property to one of Mr Cooper’s associated entities. Mr Cooper forged their signatures on the sale and purchase agreements, thereby

concealing his own involvement or the profit he was making on the on sale. The banks approved the requested loans and the victims then purchased the properties.

[5] To further encourage investors to become involved in one of these transactions Mr Cooper did not require payment of a deposit (contrary to what the loan agreements indicated). He also gave investors a cash “rebate” once the loan funds were advanced. For example, one property was purchased by a company owned by Mr Cooper’s wife for $160,000. It was on-sold to the victim for $248,000. The deposit referred to in the relevant documentation was fictitious. In…

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

Case: [2014] NZHC 806
Decision Date: 16 April 2014

CaseChat Overview and Summary

In Cooper v Serious Fraud Office, the High Court of New Zealand considered an appeal by Glenn William Cooper against his sentence imposed by the Manukau District Court for dishonestly using a document pursuant to s 228(1)(a) of the Crimes Act 1961. Cooper was sentenced to 19 months’ imprisonment and ordered to pay reparation of $25,000. Cooper appealed on two grounds: that the sentence was manifestly excessive and that the Judge erred in imposing imprisonment rather than home detention. The court examined the sentencing Judge’s approach, which set a starting point of two years nine months’ imprisonment, taking into account discounts for guilty pleas and remorse. The court found no error in the sentencing Judge’s exercise of discretion regarding these discounts. Regarding the imposition of imprisonment over home detention, the court held that the sentencing Judge was entitled to conclude that the seriousness of Cooper’s offending warranted a sentence of imprisonment for denunciation and deterrence. The personal circumstances of Cooper’s wife, who has health issues, did not tip the balance in favour of home detention. The appeal was dismissed, and Cooper was to commence his sentence of imprisonment.

The court’s reasoning hinged on the principle that sentencing is not an exact science and that the sentencing Judge is in the best position to evaluate the seriousness of the offending and the appropriateness of the sentence. The court also emphasised that the choice between home detention and imprisonment is a fettered discretion, and the appellate court’s role is to identify any error in the exercise of that discretion. The court found that the sentencing Judge had properly considered the relevant principles and facts and exercised his discretion appropriately. The decision underscores the importance of denunciation and deterrence in cases involving exploitation of vulnerable victims.

Orders