Grant v The King - [2024] NZCA 652

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA626/2023
[2024] NZCA 652

BETWEEN	JOSHUA HOHUA GRANT Appellant
AND	THE KING Respondent

Hearing:	3 October 2024
Court:	Mallon, Gwyn and Moore JJ
Counsel:	T D Clee for Appellant I L M Archibald for Respondent
Judgment:	11 December 2024 at 12 pm

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence is declined.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gwyn J)

Introduction

The appellant, Mr Grant, was found guilty of five counts relating to obtaining by deception after a five-week Judge-alone trial before Judge Jelaš in the District Court.[1] On 18 October 2023 the Judge sentenced Mr Grant to two years and four months’ imprisonment in respect of four counts of obtaining by deception, and a concurrent sentence of 18 months’ imprisonment in respect of one count of being a party to attempting to obtain by deception.[2]
[1]R v Martin [2023] NZDC 8939 [conviction reasons]. The reasons for conviction were delivered on 12 May 2023, but the Judge delivered a verdict on 14 December 2022.
[2]R v Martin [2023] NZDC 23086 [sentencing notes]. See Crimes Act 1961, ss 240(1)(b) and 241; maximum penalty seven years’ imprisonment.
Mr Grant appeals against his sentence on two grounds: first, that the Judge adopted an excessive starting point; and second, that the Judge gave inadequate personal discounts.[3]

Factual background

[3]Mr Grant initially filed an appeal against conviction and sentence but subsequently abandoned his appeal against conviction. There is jurisdiction to determine the sentence appeal because the sentence appeal was parasitic on the conviction appeal that has since been abandoned: see Tule v R [2023] NZCA 543 at [9]–[14].

Mr Grant was charged with three others — his wife, Sian Grant, Bryan Martin and Viki Cotter (at the time, Mr Martin’s partner).
Mr Martin initiated and led mortgage fraud among major trading banks. He persuaded Ms Cotter to become an accredited mortgage broker licensed to Mortgage Link, a mortgage aggregator which he effectively ran. Fraudulent loan applications were made utilising Mortgage Link, giving an appearance of authenticity.
Mr Martin set up Momentum Transition Developments Ltd (Momentum) which he used to transfer false “salary” payments to Ms Cotter to support loan applications in her name. Similarly, between February 2015 and August 2017, Momentum “employed” Ms Grant utilising a circular money transfer scheme. Mr Grant arranged for money to be sent to Mr Martin (either from accounts he controlled, cash deposits he made, or payments he arranged for family members to make) who would transfer it to Ms Grant as her “salary”.
The co-defendants made loan applications containing those false representations about their financial positions which the banks relied on when determining (and, in many instances, granting) loan applications. The Grants obtained $2,292,100 in loans over 20 months, of which they drew down $1,102,100.
The appellant was convicted as principal offender in charge 1 where he applied for a $1,400,000 loan, falsely representing that he…

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 Grant v The King

Details

AGLC: Grant v The King [2024] NZCA 652
Case: [2024] NZCA 652
Decision Date: 11 December 2024 at 12 pm

CaseChat Overview and Summary

Joshua Hohua Grant, the appellant, sought to appeal his conviction and sentence related to obtaining by deception. The case was heard by the Court of Appeal of New Zealand, comprising Mallon, Gwyn, and Moore JJ. Mr Grant was initially charged with five counts of obtaining by deception and was found guilty after a five-week trial. He was sentenced to a total of three years and ten months imprisonment. The legal issues before the Court were twofold: first, whether the starting point for the sentence was excessive, and second, whether the personal discounts applied were inadequate.

In addressing the first issue, the Court considered the appellant's culpability in comparison to his co-defendants. The Court found that the starting point set by the Judge was appropriate, given Mr Grant's role in the offending and the relative culpability of the other defendants. The Judge had found that Mr Grant's culpability was closer to that of his wife, Sian Grant, rather than his co-defendants, Bryan Martin and Viki Cotter. The Court concluded that the Judge's assessment of the roles and their relative culpability was correct and that the starting point was within an acceptable range.

Regarding the second issue, the Court reviewed the personal discounts awarded by the Judge. The Judge had applied an overall discount of approximately 22 per cent for Mr Grant's personal mitigating factors, including his good character, the impact of his imprisonment on his children, and the delay in the determination of the charges caused by COVID-19 and other factors. The Court held that the discount for good character was appropriate, considering Mr Grant's history as a police officer and his first appearance before the courts. The Court found that the global discount of 22 per cent, taking into account all mitigating factors, was generous and clearly within range.

The Court dismissed the appeal, concluding that neither the starting point nor the personal discounts were improperly set. The application to adduce new evidence was also declined.

Orders