Hancox v The Queen - [2014] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA877/2013
[2014] NZCA 257

BETWEEN	LYNLEY JAYNE HANCOX Appellant
AND	THE QUEEN Respondent

Hearing:	29 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	W T Nabney for Appellant J M Jelas for Respondent
Judgment:	19 June 2014 at 9.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Lynley Jane Hancox was found guilty following a jury trial in the Tauranga District Court on two counts of dishonestly using a document with intent to obtain a pecuniary advantage.[1] The charges arose from the sale of Ms Hancox’s shares in V Limited in February 2010. The profit and loss statements that Ms Hancox supplied to the prospective purchaser significantly overstated the company’s position. The company was, in fact, insolvent and was placed in liquidation later that year.
[1]Crimes Act 1961, s 228(b).
In sentencing, Judge Wolff imposed a sentence of two years three months’ imprisonment on each count, to be served concurrently.[2] Ms Hancox appeals the sentence on the grounds that it is manifestly excessive as a result of the Judge:
(a)taking too high a starting point; and
(b)failing to give appropriate recognition to her offer of reparation.

The offending

[2]R v Hancox DC Tauranga CRI-2012-070-1807, 19 December 2013.

Ms Hancox was the sole shareholder of V Limited, which operated a marketing business. In early 2010 she found that neither she nor the company could meet company debts which she had personally guaranteed. She decided to sell her shareholding to raise the necessary funds and approached a client of the company with an invitation to purchase the shares. The prospective purchaser and his wife were personal friends of Ms Hancox. She provided profit and loss statements and assured him that the company’s profits were improving as a result of ongoing work.
The truth was, however, that the company was insolvent. It owed penalties and interest on unpaid GST to the Inland Revenue Department. The previous year Ms Hancox had instructed a staff member to delete debt figures from the company’s accounts. The profit and loss statements that Ms Hancox provided were consequently inaccurate and significantly overstated the company’s profit position.
The purchaser borrowed money for the investment and paid $157,000 for the shares. After the purchase he tried to keep the company going and put more funds into it. The Crown estimated the total loss as being nearly $200,000. In addition, he made a personal loan to Ms Hancox of $37,000.

Was the starting point too high?

There is no guideline decision for dishonesty offences but in R v Varjan this Court identified factors that are properly taken into account in assessing culpability in such cases.[3] These include the nature of the offending, its magnitude and sophistication, the type, circumstances and number of victims, the motivation for the offending, the amounts involved, the period over which the offending occurred, the seriousness of breaches of trust involved and the impact on victims.

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 Hancox v The Queen

Details

AGLC: Hancox v The Queen [2014] NZCA 257
Case: [2014] NZCA 257
Decision Date: 19 June 2014 at 9.30 am

CaseChat Overview and Summary

Lynley Jayne Hancox appeals against her sentence for dishonestly using a document with intent to obtain a pecuniary advantage, a charge brought under section 228(b) of the Crimes Act 1961. The charges arose from the sale of Hancox’s shares in V Limited in February 2010. The profit and loss statements that Hancox supplied to the prospective purchaser significantly overstated the company’s position. The company was, in fact, insolvent and was placed in liquidation later that year. The appeal focuses on the sentence imposed by Judge Wolff, which was two years three months’ imprisonment on each count, to be served concurrently. Hancox argues that the sentence is manifestly excessive, specifically due to the starting point being too high and the Judge’s failure to adequately recognise her offer of reparation.

The Court of Appeal examined the Judge’s starting point of two years six months’ imprisonment. The Court considered that the Judge’s assessment of culpability was justified, taking into account the nature of the offence, its magnitude and sophistication, the circumstances of the victims, and the impact on them. The Court found no reason to believe that the starting point was too high, noting that the loss in Hancox’s case, while less than in some comparable cases, was still significant. The Court also found that the Judge appropriately considered Hancox’s offer of reparation, which was tentative and uncertain, and did not warrant a discount in the sentence.

Ultimately, the Court of Appeal dismissed Hancox’s appeal. The Court upheld the Judge’s sentence, finding it to be within the appropriate range given the circumstances of the case. The Court of Appeal did not find sufficient grounds to interfere with the Judge’s assessment of culpability or the decision regarding reparation. The appeal is dismissed, and the original sentence stands.

Orders