Mamfredos v The Queen - [2010] NZCA 524

IN THE COURT OF APPEAL OF NEW ZEALAND
CA64/2010
[2010] NZCA 524

BETWEENGEORGE SOCRATES MAMFREDOS

Appellant

ANDTHE QUEEN

Respondent

Hearing:3 November 2010

Court:Randerson, Potter and Cooper JJ
Counsel:P E Dacre for Appellant

P J Morgan QC for Respondent

Judgment:18 November 2010 at 9 a.m.

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Randerson J)
Introduction
[1]        The appellant Mr Mamfredos was convicted after trial in the District Court before Judge McAuslan and a jury on seven counts:[1]
(a)        One count of false pretences.
(b)        Two counts of using a document with intent to defraud.
(c)         One count of obtaining by deception.
(d)        Two counts of using forged documents.
(e)        One count of attempting to pervert the course of justice.
[1]      R v Mamfredos DC Manukau CRI 2007-092-16338, 14 September 2009.

[2]        He was later sentenced to five years imprisonment and now appeals against both conviction and sentence.
Background
[3]        A Mr Herbert was seeking to raise capital to invest in property developments in the South Island. The Crown case was that Mr Mamfredos falsely represented to Mr Herbert that he could arrange a loan for him of US$100 million through financiers in the Middle East. For that purpose it was alleged Mr Mamfredos extracted funds from Mr Herbert under false pretences.
[4]        Mr Mamfredos told Mr Herbert that certain sums were required in advance to cover the costs of due diligence as well as fees payable to the lender and to Mr Mamfredos. In January 2003, Mr Herbert paid an initial sum of $32,000 to Mr Mamfredos. Mr Herbert understood this was for due diligence costs.
[5]        Later, Mr Mamfredos told Mr Herbert a sum of up to US$1 million would be needed to cover costs. Since neither Mr Herbert nor his company Cathedral Securities Ltd had sufficient funds, a loan agreement was entered into on 5 February 2003 under which a family trust associated with Mr Mamfredos agreed to advance to Cathedral Securities Ltd the sum of US$1 million to cover the costs.
[6]        It was a term of the agreement that the family trust would immediately advance US$1 million to the foreign lenders. The company agreed to repay US$250,000 of that sum with the remaining US$750,000 to be repaid when the loan application was granted.
[7]        Pursuant to the agreement, Mr Herbert and Cathedral Securities Ltd paid further sums to Mr Mamfredos between March 2003 and May 2004. In all, Mr Herbert paid NZ$660,826 to Mr Mamfredos or his trust. No money was ever paid to the foreign lenders as agreed. Instead Mr Mamfredos spent the money for his own purposes. None of this money was ever repaid and led to the fraud and false pretences charges.
[8]        In 2005, Cathedral Securities Ltd began proceedings in the High Court to recover the sums paid to Mr Mamfredos or his trust. One of the complaints Mr Herbert made in the High Court proceedings was that the sum of NZ$32,000…

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 Mamfredos v The Queen

Details

AGLC: Mamfredos v The Queen [2010] NZCA 524
Case: [2010] NZCA 524
Decision Date: 18 November 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by George Socrates Mamfredos against his conviction and sentence for multiple counts of fraud and related offences. The appeal was dismissed by Randerson, Potter, and Cooper JJ. The appellant had been convicted on seven counts, including false pretences, using forged documents, and attempting to pervert the course of justice. The central allegation was that Mr Mamfredos falsely represented to Mr Herbert that he could arrange a US$100 million loan, and subsequently extracted funds from Mr Herbert under false pretences, which he spent for his own purposes.

The legal issues before the court were whether the evidence was sufficient to support the jury's verdict and whether the appellant's arguments, raised for the first time on appeal, could challenge the convictions. The Crown argued that the ability of Mr Herbert to obtain the loan was irrelevant; the point was that Mr Mamfredos falsely represented that he could obtain the loan and that funds were required in advance to meet fees and expenses, which Mr Herbert paid in reliance on these representations. The court held that the argument advanced by the appellant was not only irrelevant but also unsupported by evidence, and the jury had sufficient evidence to support the convictions. The appeal against conviction was dismissed.

Regarding the sentence, the court found that the sentence of five years imprisonment was well within the appropriate range, considering the sophisticated and systematic dishonesty over a period of two years, the substantial breach of trust, and the amounts involved. The appeal against the sentence was also dismissed.

Orders