Hamilton v R - [2015] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND

CA416/2014
[2015] NZCA 28

BETWEEN	HUGH EDWARD STAPLES HAMILTON Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2015
Court:	Wild, Miller and MacKenzie JJ
Counsel:	J G Krebs and I P Squire for Appellant N R Williams for Respondent
Judgment:	26 February 2015 at 10.30 am

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

Mr Hamilton appeals against a sentence of four years and nine months imprisonment imposed on him by Faire J in the High Court at Auckland on 4 July 2014.[1] The Judge, sitting without a jury, had found Mr Hamilton guilty on 14 charges of theft by a person in a special relationship (Crimes Act 1961, s 220).
[1]R v Hamilton [2014] NZHC 1579.
Mr Krebs argued there is disparity between Mr Hamilton’s sentence and the sentences imposed by different Judges on Messrs Smith and Buckley for related offending.[2] Mr Krebs contended Mr Hamilton’s sentence ought to have been significantly lower because:
(a)the sentencing starting point of five years imprisonment adopted by Faire J was too high; Mr Krebs said it should have been three years imprisonment; and
(b)the sentencing discount of five per cent the Judge allowed for Mr Hamilton’s extensive community involvement and previous good character was far too small; Mr Krebs submitted it should have been in the range of 10–15 per cent.

Background

[2]R v Smith [2013] NZHC 1341; R v Buckley DC Auckland CRI-2011-004-17116, 30 August 2012.

Mr Hamilton’s offending relates to Belgrave Finance Ltd (Belgrave). Belgrave was a finance company which collapsed in May 2008 with a loss to its 1,268 debenture investors of some $12.5 million.[3]
[3]The receiver of Belgrave puts the loss at $14.46 million.
Belgrave was purchased in 2005 by Mr Schofield with the intention of using its funds to finance his own business ventures. Mr Schofield was a client of the legal firm Davidson Armstrong Campbell (DAC Legal). Mr Hamilton was a partner of DAC Legal and was responsible for the firm’s trust account.
On Mr Schofield’s instructions, Mr Hamilton set up a trust which, through a company, owned 80 per cent of the shares in Belgrave.[4] The trust was structured to conceal the fact it was a vehicle controlled by Mr Schofield. Over the next three years Mr Schofield organised loans from Belgrave via the trust to various of his business entities. Mr Hamilton prepared the documentation for these 14 loans and some of the loan moneys passed through DAC Legal’s trust account.
[4]The remaining 20 per cent of the shares were owned 15 per cent by Mr Buckley and five per cent by Mr Smith.
Throughout, Belgrave’s debenture trust deed proscribed lending to related parties, so each of the loans to Schofield interests breached the trust deed.

The sentence

In sentencing Mr Hamilton, Faire J observed the fraudulent related party lending was concealed from investors and the trustee for…

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 Hamilton v R

Details

AGLC: Hamilton v R [2015] NZCA 28
Case: [2015] NZCA 28
Decision Date: 26 February 2015 at 10.30 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Hugh Edward Staples Hamilton appealed against the sentence of four years and nine months imprisonment imposed on him by Faire J in the High Court at Auckland. Faire J had found Mr Hamilton guilty on 14 charges of theft by a person in a special relationship. Mr Hamilton's appeal was against the sentence and not the conviction. The appeal hinged on two main issues: whether the sentencing starting point of five years imprisonment was too high and whether the sentencing discount of five per cent for Mr Hamilton's extensive community involvement and previous good character was too small. The Court of Appeal found that the sentencing starting point was appropriate, as the Judge had accurately distinguished Mr Hamilton's role from that of the other offenders and had considered his lesser culpability. The Court also found the five per cent discount appropriate, as the duration and the unrelated misuse of client funds had diminished the benefit of Mr Hamilton's past good character. As neither of the points on appeal succeeded, the appeal against the sentence was dismissed.

Orders