R v Banbrook - [2014] NZHC 1282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-020412 [2014] NZHC 1282

THE QUEEN

v

ANTHONY DAVID BANBROOK

Hearing: 6 June 2014 (via AVL at Wellington)

Counsel:

S P Symon for Crown
Defendant in person

Judgment:

9 June 2014

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am dismissing Mr Banbrook’s application in which he asks me to reconsider a reparation order I made on 12 March 2013. I will also explain the next steps that I will consider taking in this matter.

Background

[2] On 22 June 2012, Mr Banbrook pleaded guilty to one charge of distributing a registered prospectus containing untrue statements1 issued in relation to National Finance Ltd.

[3] On 12 March 2013, I sentenced Mr Banbrook to eight and a half months’

home detention. I also directed he pay $75,000 reparation by 12 April 2013.

1 Securities Act 1978, s 58(3).

R v BANBROOK [2014] NZHC 1282 [9 June 2014]

[4] Prior to sentencing, Mr Banbrook filed a declaration as to his financial means. That declaration was dated 10 August 2012 and explained Mr Banbrook had net assets of $727,395.

[5] At sentencing Mr Banbrook’s counsel explained he was in a position to pay

$75,000 reparation. That was a significant factor as evidenced by my sentencing notes in which I adopted a starting point of two years and six months’ imprisonment and then said:2

You have agreed to pay reparation of $75,000. I understand that sum has been saved by you and your wife for retirement. You are now 66 years old and you have now diminished prospects of continuing to earn significantly from your career as a lawyer. Accordingly, a payment of $75,000 is a meaningful payment for a person in your circumstances.

I propose to discount your sentence by six months to reflect your offer of reparation and your remorse.

…

I am … ordering you to pay $75,000 reparation by 12 April 2013.

[6] Mr Banbrook appealed his conviction. His appeal was dismissed by the Court of Appeal on 30 October 2013. In dismissing Mr Banbrook’s appeal the Court of Appeal said:3

The conviction and sentence stand.

However, the Court of Appeal extended time for Mr Banbrook to pay reparation to

15 November 2013.4

[7] Mr Banbrook applied for leave to appeal the Court of Appeal’s judgment to

the Supreme Court. Leave was declined by the Supreme Court on 18 December

2013.

[8] On 31 January 2014, the Crown filed a memorandum in which: (1) It explained no reparation had been paid.

2      R v Banbrook [2013] NZHC 462 at [28]-[29] and [38].
3      Banbrook v R [2013] NZCA 525 at [41].
4      Banbrook v R, above n 3, at [44].

(2)It sought an order that reparation be paid to the receivers of National Finance 2000 Ltd to be used for the benefit of all investors who had suffered loss.

[9] On 12 March 2014, Mr Banbrook filed a memorandum in which he explained his financial circumstances had…

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 R v Banbrook

Details

AGLC: R v Banbrook [2014] NZHC 1282
Case: [2014] NZHC 1282
Decision Date: 9 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Anthony David Banbrook sought reconsideration of a reparation order imposed by Collins J on 12 March 2013. Banbrook had previously pleaded guilty to distributing a prospectus containing untrue statements in relation to National Finance Ltd, and was sentenced to eight and a half months’ home detention, along with a reparation payment of $75,000 by 12 April 2013. The Court of Appeal had dismissed Banbrook's appeal against his conviction, and extended the time for payment of the reparation to 15 November 2013. The Crown subsequently filed a memorandum explaining that Banbrook had not made any reparation payments, and sought an order for the payment to be made to the receivers of National Finance Ltd for the benefit of all investors who had suffered loss.

Banbrook applied for leave to reconsider the reparation order, arguing that it was grossly excessive compared to similar cases. However, Collins J dismissed the application on the basis that the reparation order was an integral part of the sentence, and resulted in a significant discount in the sentence. If Banbrook wished to challenge the appropriateness of the reparation order, he would need to apply to the Court of Appeal for leave to appeal the sentence out of time. The Crown had no option but to apply for the issuing of a warrant for Banbrook's imprisonment if he failed to pay the balance of the reparation by 5.00 pm on 9 June 2014. Collins J scheduled a hearing for 19 June 2014 to decide whether a warrant should be issued, and the period of time that Banbrook should be imprisoned. Banbrook could avoid these potential consequences by paying the outstanding reparation by 5.00 pm on 16 June 2014.

Orders