Ghorbani v The Queen

[2017] NZCA 214

IN THE COURT OF APPEAL OF NEW ZEALAND

CA479/2016
[2017] NZCA 214

BETWEEN	MEHRDAD GHORBANI Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2017
Court:	Harrison, Gilbert and Katz JJ
Counsel:	C-Y Kan for Appellant T A Simmonds and M S Gatland for Respondent
Judgment:	25 May 2017 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. The appellant Mehrdad Ghorbani was found guilty on six counts of obtaining a pecuniary advantage by deception following a 10-week trial before Judge Gibson sitting without a jury in the Auckland District Court.[1]  He was one of five family members and associates who were tried for their participation in a mortgage fraud scheme.  Judge Gibson found that Mr Ghorbani’s sister, Eli Devoy, was the mastermind with all the other four defendants playing different roles in the scheme’s implementation.  The facts are recited more fully in our contemporaneous judgment dismissing Ms Devoy’s appeal against conviction and sentence.[2]

   [1]Serious Fraud Office v Devoy [2016] NZDC 10933 [Reasons for verdicts].

   [2]Devoy v R [2017] NZCA 213 at [9]–[10].

2. Judge Gibson convicted Mr Ghorbani and sentenced him to a total of two years and seven months’ imprisonment.[3]  Mr Ghorbani appeals against his sentence but not his conviction. 

Background

[3]R v Stone [2016] NZDC 15968 [Sentencing remarks] at [32].

1. Mr Ghorbani, his siblings and his associates ran a crude but time‑honoured scheme over a three-year period of using false or forged documents to support applications made to seven lending institutions for mortgage finance.  Unlike some of his co-offenders, he did not plead guilty to any of the many charges under s 240 of the Crimes Act 1961 for obtaining by deception.

2. Mr Ghorbani was found guilty as a party to a charge of assisting his brother, Mehrzad, to obtain a bank loan by providing false details of employment and income levels (count 1).  His discrete offending took the nature of:

   (a)falsely representing details of his income and employment and providing false documents in support in mortgage applications to banks (counts 1, 2 and 4);

   (b)using the former names of himself and his wife to conceal the fact that he had an existing mortgage when applying for a loan (count 12);

   (c)writing a cheque for $130,000 and representing to his solicitor that he had the funds available to settle a transaction and that he had in fact paid the money and an associate had received it (count 13); and

   (d)the next day using the previous names of himself and his wife in a mortgage application to disguise their true financial position together with an application form which misrepresented income levels and funds held on account (count 14).  

District Court

1. The Judge’s primary requirement when sentencing was to structure sentences for each offender according to their relative levels of culpability.  His advantage in undertaking this exercise could not be questioned.  He had presided over a lengthy trial and evaluated a large volume of evidence when delivering reasons for verdict totalling 150 pages.  He was satisfied that Ms Devoy was the lynchpin or mastermind.[4]  He fixed a starting point for her of five years’ imprisonment, taking into account the widespread level of deceit and dishonesty, the scale of the offending and the total loans advanced in excess of $5.8 million.[5]  He was satisfied that Ms Devoy unlawfully received funds totalling just under $760,000.[6] 

   [4]At [4]–[5].

   [5]At [20]–[23].

   [6]At [7].

2. Judge Gibson was satisfied that Mr Ghorbani’s culpability was one stage below that of Ms Devoy.  He was an influential family figure and at the heart of the offending for which he was convicted.  He obtained two significant benefits: first, control over the ownership and possession of two residential properties purchased through the fraudulent scheme and, second, unlawfully obtained funds of $288,000.[7]  By applying his scale of relative culpability, the Judge adopted a started point of three years’ imprisonment.[8]  He allowed a discount of about 15 per cent or five months to reflect mitigating factors.[9]  The end sentence was two years and seven months’ imprisonment.[10]

Decision

[7]At [7].

[8]At [31].

[9]At [32].

[10]At [32].

1. Mr Kan advances Mr Ghorbani’s appeal on the ground that the starting point adopted by the Judge was too high.  He says that the Judge erred in his evaluation of Mr Ghorbani’s culpability.  He said that Mr Ghorbani’s culpability was the same level of his brother Mehrzad.  His sentence should have attracted the same starting point of two years and six months’ imprisonment.[11]  Mr Kan focussed on a sentence in the Judge’s notes where he observed that a starting point of three years’ imprisonment “seems” to be appropriate.[12] 

   [11]See [34].

   [12]At [32].

2. We are not satisfied that the Judge erred.  As noted, he was best placed to determine the relative levels of culpability among the defendants.  We agree with Mr Simmonds that a starting point of three years’ imprisonment for offending on this scale and of this magnitude was well within the available range.  Mr Ghorbani’s deception was prolonged and premeditated.  His fraudulent practices yielded him a significant financial benefit.  Mr Kan did not press an argument that the 15‑per‑cent discount for mitigating factors was too low.  Mr Ghorbani may indeed have been fortunate to obtain this benefit given his denial of liability, which he maintained through trial and after the verdicts were entered, and apparent lack of remorse.  It certainly cannot be said that Mr Ghorbani’s end sentence is manifestly excessive.

Decision

1. The appeal against sentence is dismissed.

Solicitors:
Michael Kan Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent