Huirua v The the King

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA277/2022
 [2022] NZCA 537

BETWEEN	TE WHITINGA MARK HUIRUA Appellant
AND	THE KING Respondent

Hearing:	30 September 2022
Court:	Goddard, Ellis and Dunningham JJ
Counsel:	J H C Waugh and E C Copeland for Appellant C B Wilkinson-Smith for Respondent
Judgment:	14 November 2022 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

1. Mr Huirua pleaded guilty to six charges of using a forged document[1] and one charge of carrying on a business fraudulently.[2]  On 27 May 2022, Gendall J sentenced him to two years and 11 months’ imprisonment.[3]

   [1]Crimes Act 1961, s 257(1)(a); maximum penalty of 10 years’ imprisonment.

   [2]Companies Act 1993, ss 380(1) and 373(4)(f); maximum penalty of five years’ imprisonment.

   [3]R v Huirua [2022] NZHC 1262.

2. Mr Huirua now appeals that sentence.

The offending

1. The summary of Mr Huirua’s offending is taken from the summary of facts as amended just before the entry of his guilty pleas.

2. Ngaa Rauru Kiitahi is one of eight generally recognised Taranaki iwi.  As part of the Crown’s settlement of their Treaty grievances, Ngaa Rauru Kiitahi received $32 million in redress.

3. Te Kaahui o Rauru (TKOR) was established as the governance entity for Ngaa Rauru Kiitahi.  TKOR is a charitable trust, governed by “Paepae Representative” Trustees (the Trustees).

4. In 2016 Mr Huirua was appointed as a director of Te Pataka o Rauru Ltd (TPOR), the company heading the iwi’s investment arm.  He had banking and investment experience as a result of his then role at the National Australia Bank.[4]  Along with the other directors, Mr Huirua was responsible for ensuring iwi funds were invested and managed appropriately for the benefit of the iwi.

   [4]Mr Huirua lived in Australia at that time.

5. A Statement of Investment Policy and Objectives (SIPO) set out the Trustees’ instructions to TPOR about their investment approach.  Historically the approach had been conservative but Mr Huirua’s advice was that TPOR should be permitted to diversify and make “direct investments” of funds.  Mr Huirua was closely involved in drafting amendments to the SIPO to reflect this change and, after lengthy consultation, the SIPO (now renamed the Investment Governance Policy (IGP)) was adopted by the Trustees.  The IGP authorised the executive directors of TPOR (including Mr Huirua) actively to manage direct investments for TKOR up to a value of $26 million.

6. Mr Huirua then established two companies — Society One NZ Ltd and Imdabradaz Capital Ltd — and opened bank accounts for them.  Mr Huirua was director and the sole shareholder of these companies.  Mr Huirua chose the former name deliberately, because there is a large Australian financial institution called “Society One”, which has an annual turnover of one billion dollars.  Mr Huirua chose a similar name for his company so that other employees of TPOR would believe investments were being made with or through the Australian company.

7. Between 4 May 2018 and 29…