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 changed because of disciplinary action against him by the New Zealand Law Society.  Mr Banbrook said he was no longer in a position to pay the reparation I ordered in a lump sum and that:

After  consultation  with  the  Collections  Department  of  the  Ministry  of Justice, [he] was advised that the reparation payment of $75,000 could be paid by instalments up to a maximum period of 5 years without application to the Court for approval.

[10]     Mr Banbrook also said he “has agreed to make the reparation payment by instalments of $3,750 per quarter over a 5 year term”.

[11]     I directed the Registrar to conduct further investigations and prepare a report explaining how the Registrar had agreed to an arrangement that effectively overrode the specific orders of the High Court and Court of Appeal concerning the payment of reparation in one lump sum.  By the time the Registrar had prepared her report Mr Banbrook had paid $3,750 towards the reparation which had been ordered.  In her report the Registrar advised that she had not appreciated that there were Court orders concerning the payment of reparation by Mr Banbrook at the time she entered into the arrangement with Mr Banbrook.   The Registrar cancelled the arrangement for Mr Banbrook to pay the reparation ordered by way of instalments.

[12]     In order to progress matters, I conducted a further hearing on 6 June 2014 during which Mr Symon, for the Crown, advised that the Crown would be applying to the Court for the enforcement steps set out in s 83(1B) of the Summary Proceedings Act 1957, and in particular that the Crown would be asking for the issuing of a warrant of commitment for the imprisonment of Mr Banbrook if he failed to pay the balance of the reparation ordered by 5.00 pm on 9 June 2014.

Application to reconsider reparation order

[13]     On 5 June 2014, Mr Banbrook filed a memorandum in which he asked me to reconsider the reparation order which I made on 12 March 2013.   Mr Banbrook supported his application with a submission that the reparation order was “grossly excessive having regard to comparable cases”.  Mr Banbrook provided the following

comparative table:

Case	Losses Attributable to Offending Prospectus	Reparation Order
Graham & Ors v R [2014] NZSC 55 (Lombard Finance)	$10.45m	$100,000
R   v   Butler   &   Whale   [2013] NZHC 1436 (Dominion Finance)	A + B = $14.98m F = $21.37m	A + B $90,000 W = $75,000 F = $50,000
R v  Ryan &  Ors [2013] NZHC 501 (Capital & Merchant Finance Ltd)	$170m	R = $100,000 S = $60,000
R   v   Hotchin   CRI   2009-092- 020927, Lang J, HC Auckland, 4 Mar 2011 (Nathans Finance Ltd)	$26m	$200,000
Young  v  Ministry  of  Economic Development         CIV-2006-419- 000077,   HC   Hamilton  Registry, Rodney Hansen J, 9 Mar 2007	$257,000	$30,000
National Finance Ltd 22.09.2005 – 09.05.2006	$398,000	$75,000

[14]     I  am not going to reconsider the reparation orders which I made for the following reasons:

(1)The reparation order was an integral part of the sentence which I imposed on Mr Banbrook and resulted in a significant discount in the sentence which would otherwise have been imposed.

(2)No appeal was made against the reparation order and the orders which I  made  were  restated  by  the  Court  of Appeal  when  it  dismissed Mr Banbrook’s appeal against conviction.

[15]     If Mr Banbrook wishes to challenge the appropriateness of the reparation order then he will need to apply to the Court of Appeal for leave to appeal my sentence out of time.

Next steps

[16]     The Summary Proceedings Act 1957 provides an efficient mechanism for dealing with persons who fail to pay immediate orders for the payment of fines. Fines include reparation orders.  The High Court can take one of the three steps set out in s 83(1B) of the Summary Proceedings Act 1957.   Those steps include the issuing of a warrant of commitment for the imprisonment of those who do not comply with orders for the immediate payment of reparation.

[17]     Mr Symon advised that the Crown was left with no option other than to apply for the issuing of a warrant.   The Crown suggested a warrant be issued by me if Mr Banbrook failed to pay the balance of the reparation he has been ordered to pay by 5.00 pm on 9 June 2014.

[18]     Mr Symon advanced the submission that Mr Banbrook has not explained what his net assets are and has instead, chosen to attack the appropriateness of the reparation order and complained that he is the primary victim of the collapse of National Finance.   Mr Symon submitted Mr Banbrook has continued to display complete indifference to the Court orders.

[19]     I will conduct a hearing in the Auckland High Court at 3.30 pm on 19 June

2014 at which time I will decide if a warrant for the imprisonment of Mr Banbrook should be issued.  If a warrant is issued I will decide at that hearing the period of time that Mr Banbrook should be imprisoned.

[20]     Mr  Banbrook  can  avoid  these  potential  consequences  by  paying  the outstanding reparation to the Registrar of the Auckland High Court by 5.00 pm on

16 June 2014.

D B Collins J

Solicitors:

Crown Solicitor, Auckland