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D'Villiers v R

D'Villiers v R

Case [2010] NZCA 85 22 March 2010

Breach of Contract

Dishonesty

Fraud

Imposition of Minimum Period of Imprisonment

Re-offending on Parole

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA608/2009
[2010] NZCA 85
BETWEENSTEPHEN D’VILLIERS

Appellant

ANDTHE QUEEN

Respondent

Hearing:10 March 2010

Court:Ellen France, Miller and Allan JJ
Counsel:J N Bioletti for Appellant

J C Gordon SC and A M Killeen for Respondent

Judgment:22 March 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Allan J)
[1]        On 23 July 2009, during the first week of his trial, Mr D’Villiers pleaded guilty to 21 charges of dishonestly using a document with intent to obtain a pecuniary advantage, and one charge of knowingly using a forged document. On 28 August 2009, he was sentenced by Judge Wade in the Manukau District Court to five years imprisonment.[1] The Judge also imposed a minimum period of imprisonment (MPI) of two and a half years. Mr D’Villiers appeals against the minimum term, but not against the end sentence of five years imprisonment.
Background
[1]      R v D’Villiers DC Manukau CRI-2008-092-11825, 28 August 2009.
[2]        By his guilty pleas the appellant accepted criminal responsibility for very substantial dishonest offending, the nature and scope of which was succinctly summarised by the sentencing Judge in this way:
[4]         It can be seen that the dishonesty comprised what is commonly called “mortgage fraud”. It took place at a time when the housing market was buoyant during 2004 and 2005. The opening date of the indictment is 14 December 2004, and the final transaction took place on either 24 or 25 May 2005. The offending related to the dishonest use of loan application forms and sale and purchase agreements in relation to 19 different property transactions during the relevant period. As is common in such frauds the actual purchase price of the property concerned was exaggerated and it was represented that deposits had been made direct to the vendors when they had not. This was to enable the purchaser to obtain a greater loan than the lender would normally be prepared to allow, frequently amounting to 100 percent of the purchase price. The sale and purchase agreement showed the inflated prices but the purchasers were induced to sign them by assurances that only the lower orally agreed price would be applicable.
[5]         In very many instances it was not simply a case of false representations being made as to the purchase price. To make the prospective borrowers’ financial position appear more rosy than was in fact the case, false assertions were made as to the income of the prospective borrower, the length of their service with their current employer, the bank deposits it was alleged that they held, and the other capital assets that they had. That would be done by what appeared to me certainly to be sophisticated forgeries. Furthermore, in some instances official documents such as passports and driving licences were forged and submitted in support of the application.
[6]         As a result of your actions fraudulent loan applications were made to a total of $4,870,000 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.

Continue reading D'Villiers v R

Details

AGLC: D'Villiers v R [2010] NZCA 85
Case: [2010] NZCA 85
Decision Date: 22 March 2010

CaseChat Overview and Summary

The case of D'Villiers v R concerns an appeal against the imposition of a minimum period of imprisonment (MPI) in the sentencing of Stephen D'Villiers. The appellant had pleaded guilty to charges of dishonestly using a document with intent to obtain a pecuniary advantage, and knowingly using a forged document. The court sentenced him to five years imprisonment, with a minimum non-parole period of two and a half years. The appellant argued that there was no proper basis for the imposition of an MPI under section 86 of the Sentencing Act 2002.

The legal issue before the Court of Appeal was whether the District Court was correct in imposing an MPI, and if not, whether the appeal should be allowed. The Court needed to determine whether the District Court's decision to impose an MPI was in accordance with the relevant statutory provisions and sentencing principles. The Court of Appeal had to consider the four purposes of accountability, denunciation, deterrence, and protection of the community as outlined in section 86(2) of the Sentencing Act, and whether these purposes were adequately addressed by the imposition of an MPI.

The Court of Appeal found that the District Court was correct in imposing an MPI. The Court noted that the appellant played a leading role in a carefully planned mortgage fraud scheme, which involved deception of lenders and risk of loss for borrowers. The Court found that the purposes of sentencing outlined in section 86(2) were all engaged by the circumstances of this offending, viewed in the light of the appellant's history. The Court also considered that the District Court was entitled to place significant emphasis on the fact that the present offending occurred while the appellant was on parole, having served a sentence of imprisonment for virtually identical offending. The Court concluded that the District Court's decision to impose an MPI of one-half of the end sentence was correct.

The Court of Appeal dismissed the appeal against sentence, upholding the imposition of a minimum non-parole period of two and a half years.

Orders