Kiro v The Queen - [2016] NZHC 1550

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000153

CRI-2016-404-000154 [2016] NZHC 1550

BETWEEN
BENJAMIN KIRO

Appellant

AND

THE QUEEN Respondent

Hearing: 4 July 2016

Appearances:

A Prasad for the Appellant
M Harborow for the Respondent

Judgment:

11 July 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 11 July 2016 at 9.30am
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Crown Law Office, Auckland
Public Defence Service, Auckland

KIRO v R [2016] NZHC 1550 [11 July 2016]

Introduction

[1] On 19 January 2016, the appellant, Mr Kiro, pleaded guilty to the following charges:

(a) theft by a person in a special relationship (x 10), contrary to ss 220 and 223(a) of the Crimes Act 1961;

(b)knowing a document to be forged, caused another person to use it as if it were genuine (x 5), contrary to s 257(1)(c) of the Crimes Act;

(c) dishonestly using a document to obtain a pecuniary advantage, contrary to s 228(1)(b) of the Crimes Act;

(d)making a false document with intent to obtain a pecuniary advantage, contrary to s 256(1) of the Crimes Act;

(e) knowing a document to be forged, used it to obtain a pecuniary advantage, contrary to s 257(1)(a) of the Crimes Act;

(f) obtaining by deception, contrary to ss 240(1)(a) and 241(a) of the

Crimes Act; and

(g)making a false document with the intent that it be acted upon as if it were genuine (x 3), contrary to s 256(2) of the Crimes Act.

[2] Mr Kiro was sentenced by Judge B A Gibson in the District Court at Auckland on 28 April 2016 to four and a half years’ imprisonment. The Judge imposed a minimum period of imprisonment of two years and three months, and made a reparation order in the sum of $75,000.

[3] Mr Kiro appeals the sentence on the basis that it is manifestly excessive. It is argued on Mr Kiro’s behalf that Judge Gibson erred:

(a) by not adjusting the term of imprisonment to take into account the reparation order made;

(b)by not referring the matter to the restorative justice process, and/or by not giving a discount for Mr Kiro’s willingness to engage in that process;

(c) by taking into account alleged offending by Mr Kiro in Australia; and

(d) by not giving Mr Kiro a discount for his previous good character.

Background

[4] The offending arose out of a number of fraudulent schemes set up by Mr

Kiro.

[5] Mr Kiro defrauded a number of his victims by presenting them with fake investment opportunities in initial public offerings. Mr Kiro represented that he was involved in an investment project managed by a well known and respected investment firm in New Zealand, and he provided documentation to support his claim. In reliance on this information, a number of individuals placed substantial funds in Mr Kiro’s bank account. Mr Kiro offered a return of $29,800 for each
$10,000 invested. The returns never eventuated. When pressed, Mr…

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 Kiro v The Queen

Details

AGLC: Kiro v The Queen [2016] NZHC 1550
Case: [2016] NZHC 1550
Decision Date: 11 July 2016

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered an appeal against sentence by Benjamin Kiro, who was sentenced to four and a half years’ imprisonment for multiple counts of fraud and forgery. The appellant contended that the sentence was manifestly excessive, arguing that the sentencing judge had failed to properly consider several factors, including the reparation order, the restorative justice process, the appellant's willingness to engage in it, his prior offending in Australia, and his good character. The Crown submitted that the sentence was within the appropriate range for such offending and not manifestly excessive.

The Court reviewed the alleged errors in the sentencing process. It found that the reparation order, which required the appellant to repay part of the stolen funds, did not warrant a discount in the sentence as it did not mitigate the culpability of the offending. Regarding the restorative justice process, the Court found that the statutory requirements were not met, and the majority of victims were not interested in participating. The Court also found no error in the sentencing judge's reference to the appellant's prior offending in Australia, as it was not identified as a relevant factor for the sentence. Lastly, the Court held that the sentencing judge appropriately considered the appellant's good character but decided against a discount due to the nature and impact of the offending.

The Court then compared the sentence to other cases with similar offending and found that the starting point and the overall sentence were within the appropriate range. The Court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

Orders