Dallimore v The Queen
[2012] NZCA 437
•26 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA199/2012 [2012] NZCA 437 |
| BETWEEN ROSS DALLIMORE |
| AND THE QUEEN |
| Hearing: 31 July 2012 |
| Court: Glazebrook, Winkelmann and Rodney Hansen JJ |
| Counsel: Appellant in person |
| Judgment: 26 September 2012 at 11.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
Mr Dallimore pleaded guilty in the Auckland District Court to a charge that, being an undischarged bankrupt, between 3 December 2007 and 31 August 2008 he carried on the management of a business contrary to ss 149(1)(a) and 436(1)(b) of the Insolvency Act 2006. He was sentenced by Judge Hubble to 200 hours community work.[1]
[1] R v Dallimore DC Auckland CRI-2009-004-12373, 18 August 2010.
On 10 April 2012 Mr Dallimore filed an appeal against sentence in this Court. That appeal was out of time. We accept that the delay in filing the appeal is adequately explained and accordingly grant an extension of time for the appeal to be filed.
Further background
Mr Dallimore was adjudicated bankrupt on 13 April 2005. It was the second time he had been made bankrupt. He had not been discharged when, in June 2007, he answered an advertisement by GK Civil Ltd (GK) for an engineer consultant. He was contracted to provide services at an hourly rate of $80. Between 31 August 2007 and 11 January 2009, he was paid a total of $168,554.83.
According to correspondence produced at the hearing of the appeal, Mr Dallimore held the position of Group Contracts Manager of GK and was responsible for all contracts, both civil and commercial. All project staff reported to him. He reported to the director and principal shareholder of the company. Mr Dallimore accepted that he was responsible for running projects for the company but disputed involvement in its financial management.
In August 2008, Mr Dallimore engaged a self-employed engineer, Dennis Bartlett, to price tenders for GK. He agreed to pay Mr Bartlett an hourly rate of $80. Mr Bartlett carried out the work on a tender submission and invoiced GK for $4,050. GK refused to pay the invoice because Mr Dallimore had no authority to employ Mr Bartlett.
Mr Dallimore originally faced two counts arising out of his work for GK. Count one was brought under the Insolvency Act 1967 and covered the period 1 June to 2 December 2007 when that Act was repealed and the Insolvency Act 2006 came into force. Count two covered the balance of the period Mr Dallimore worked for GK. A sentence indication hearing was arranged but no indication was given as the facts were disputed. Ultimately, the Crown agreed to offer no evidence on count one and Mr Dallimore pleaded guilty to count two.
Because of ill-health, Mr Dallimore did not file written submissions before the hearing of the appeal. After hearing from him and Mr Tantrum orally, we gave leave for written submissions to be filed. Both parties have availed themselves of that opportunity.
Issues raised on appeal
As a preliminary issue, Mr Dallimore questioned whether the submissions of the Crown are directed to the correct count in the indictment. They are. They are directed to count two, the count to which Mr Dallimore pleaded guilty and of which he was convicted.
Mr Dallimore next pointed to errors in the Crown’s written submissions made to the District Court for the purpose of the sentence indication hearing. They included an error in the date on which he was adjudicated bankrupt and an incorrect reference to s 426 of the Insolvency Act 2006. These errors had no effect on Mr Dallimore’s sentence. The indictment refers to the correct section of the Act and the summary of facts to the correct date of bankruptcy.
Mr Dallimore is critical of aspects of the procedure followed in the District Court, complaining that the committal procedure was not in accordance with the relevant practice note and that a scheduled case management conference did not take place. We need not canvass these issues in detail as they had no impact on sentence.
That takes us to the substance of the appeal which is Mr Dallimore’s submission that the sentence was manifestly excessive.
In his sentencing remarks Judge Hubble said that the real purpose of the charges against Mr Dallimore is to “protect the public from loss resulting from imprudent management of businesses”.[2] He observed that Mr Dallimore’s past history indicated that he is not a good manager, noting that he had a number of convictions for dishonesty.[3] The Judge went on to say that he needed to impose a penalty that acts as a deterrent and “hopefully instils in [Mr Dallimore] a sense of responsibility”.[4]
[2] At [1].
[3] At [2].
[4] At [3].
Judge Hubble said he accepted the Crown’s submission that, having regard to Mr Dallimore’s past history, which included a previous conviction under the Insolvency Act 1967, a prison sentence of up to six months would be warranted. However, he decided that a community-based sentence was appropriate, taking into account that he had “over-served” the sentence of 80 hours community work he received for his earlier conviction under the Insolvency Act.[5]
[5] At [6].
The main thrust of Mr Dallimore’s argument that the sentence was excessive is that he was not involved in the financial management of the business of GK. He disputes that the commercial community was at risk from his activities or that he was responsible for the claimed losses of $4,050.
Mr Dallimore was not charged with being involved in the financial management of the business. The charge to which he pleaded guilty was that he carried on in the management of GK without the leave of the Official Assignee or the High Court, contrary to ss 149(1)(a) and 436(1). Based on the summary of facts and documents produced by Mr Dallimore himself, it cannot be disputed that he participated in the management of GK. As previously noted, he was described as the Group Contracts Manager. Other employees were advised that he was “completely responsible” for all civil and commercial contracts, reporting to the board of directors. Together with the managing director of GK he had authority to authorise purchases over a discretionary limit.
Mr Dallimore disputes that his actions led to the losses of $4,050, referred to by the Judge as “fortunately ... low”.[6] However, those losses are recorded in the summary of facts and, although Mr Dallimore referred to statements which disputed his employer’s claim that he had no authority to employ Mr Bartlett, a decision of the Disputes Tribunal found otherwise.
[6] At [4].
There is no tariff for offending of this nature under the Insolvency Act but there is a body of authority which makes it clear that a sentence of imprisonment will often be required, particularly for deterrent purposes. In R v Holt,[7] this Court upheld a sentence of nine months imprisonment imposed on two charges of taking part in the management or control of a business contrary to the Insolvency Act 1967. The Court referred to three decisions of the High Court in which sentences of between four and nine months imprisonment had been imposed. Other cases referred to us confirmed that, depending always on the particular facts of the case, a sentence of imprisonment will often be required both for deterrent purposes and in order to protect the public. In R v Rouse[8] a first offender in his sixties only narrowly avoided a custodial sentence and was sentenced to 150 hours community work. In R v Burchell[9] a sentence of nine months imprisonment was imposed on two charges of carrying on a business under the Insolvency Act 1967.
[7] R v Holt [2006] DCR 669 (CA).
[8] R v Rouse HC Auckland CRI-2005-044-3195, 10 November 2006.
[9] R v Burchell HC Auckland CRI-2005-044-7058, 4 December 2007.
The loss arising from the offending in these cases was considerably greater than the loss caused by Mr Dallimore. On the other hand, with a history of some 150 offences of dishonesty dating back to 1965 and facing sentence for offending under the Insolvency Act for the second time, Mr Dallimore arguably could count himself fortunate that he avoided a prison sentence. The sentence of community work could not by any means be regarded as excessive.
Result
The application for an extension of time to appeal against sentence is granted.
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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