Ludlow v The Queen - [2012] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

CA186/2012
[2012] NZCA 549

BETWEEN TREVOR ALLAN LUDLOW
Appellant

AND THE QUEEN
Respondent

Hearing: 19 November 2012

Court: White, Miller and Asher JJ

Counsel: Appellant in person (by videolink)
N Williams for Respondent

Judgment: 27 November 2012 at 12.30 pm

JUDGMENT OF THE COURT

A The application for bail pending appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

The appellant Mr Ludlow seeks bail pending the hearing of his appeal.
He has been convicted of six counts of theft in a special relationship under s 220 of the Crimes Act 1961 and one count of false accounting under s 260 of the same Act. He had entered a plea of guilty to one count of theft and was then convicted of the remaining six counts at a Judge alone trial in the District Court at Auckland before Judge Bouchier.[1] The maximum penalty for the theft charges was seven years’ imprisonment on each count, and on the single false accounting charge 10 years’ imprisonment. At a sentencing hearing on 20 October 2011, Judge Bouchier sentenced Mr Ludlow to a period of five years and seven months’ imprisonment.[2]
[1] R v Ludlow DC Auckland CRI-2009-004-23758, 26 July 2011.
[2] R v Ludlow DC Auckland CRI-2009-004-23758, 20 October 2011.
There were then other charges laid to which he pleaded guilty. In a further sentencing hearing in the High Court at Auckland on 26 January 2012 Toogood J sentenced Mr Ludlow on one count of approving a registered prospectus containing untrue statements and seven counts under s 51 of the Financial Reporting Act 1993 for authorising the making of a statement that was false or misleading.[3]
[3] R v Ludlow [2012] NZHC 360.
Toogood J was aware of the earlier sentencing by Judge Bouchier and took into account the totality principle. He sentenced Mr Ludlow to terms of imprisonment of nine months to be served concurrently with each other but cumulatively upon the period of imprisonment already imposed. The total effective period of imprisonment was therefore six years and four months’ imprisonment.
Mr Ludlow seeks bail pending appeal against his convictions and sentence in the District Court and his sentence in the High Court.
On 28 September 2012 Arnold J dealt with Mr Ludlow’s initial application for bail on the papers.[4] That application was made under s 393(2) of the Crimes Act. Mr Ludlow indicated he would argue that the sentence was manifestly excessive. It was noted that there was no indication of the basis for this argument. He also argued that there were inadequate facilities in prison for him to prepare for his appeal, but this argument was not accepted. Bail was declined.
[4] Ludlow v R [2012] NZCA 447.
Mr Ludlow has now applied to the Court for bail. He has filed three volumes of further material and set out detailed reasons for his application. He has abandoned the ground that there are inadequate facilities in prison…

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 Ludlow v The Queen

Details

AGLC: Ludlow v The Queen [2012] NZCA 549
Case: [2012] NZCA 549
Decision Date: 27 November 2012

CaseChat Overview and Summary

Trevor Allan Ludlow was convicted of multiple counts of theft in a special relationship and false accounting, for which he received a total sentence of six years and four months' imprisonment. He sought bail pending his appeal against both his convictions and sentences. The Court of Appeal addressed the bail application as a stand-alone matter, considering the new grounds and material presented by Ludlow. The Court found that the appellant had not demonstrated on the balance of probabilities that it would be in the interests of justice to grant him bail. The appellant's convictions involved significant dishonesty and theft amounting to over $3.7 million. The Court took into account the length of the sentences and the likely time before the appeal would be heard, as well as the appellant's personal circumstances and the apparent strength of his grounds of appeal. None of these factors persuaded the Court that bail should be granted. As a result, the application for bail pending appeal was declined.

Orders