R v Bowden - [2012] NZHC 1249

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-004-15175 [2012] NZHC 1249

THE QUEEN

v

ANTHONY WALPOLE BOWDEN

Hearing: 6 June 2012

Counsel: B H Dickey and J Cairney for Crown
T Simmonds for Prisoner

Judgment: 6 June 2012

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Auckland
Counsel:
T Simmonds, Auckland

R V BOWDEN HC AK CRI 2010-004-15175 [6 June 2012]

Introduction

[1] Anthony Walpole Bowden, you appear for sentence today having pleaded guilty to two charges of theft by a person in a special relationship. Your pleas were entered on 17 April 2012, following a sentence indication hearing. You were scheduled to go to trial in this Court, commencing on 18 June 2012. The maximum penalty for each offence is one of seven years imprisonment.

[2] As a result of your pleas of guilty to the two theft charges, the Crown offers no evidence against you on seven other charges of dishonestly using a document. On counts 3–9 (inclusive) of the indictment you are discharged under s 347 of the Crimes Act 1961. Those discharges are deemed to be acquittals on those counts.

Facts

[3] The circumstances in which your offending occurred and the business of the Five Star group in general has been well documented. It is well and truly in the public domain. For that reason, I shall (at the risk of summarising the position incompletely) outline the bare essentials of the transactions in issue and the nature of the charges.

[4] You, together with Messrs Nicholas Kirk and Marcus MacDonald[1] were directors of Five Star Consumer Finance Ltd. You were a non-executive director. Another person Mr Neill Williams, is alleged to have been a shadow director of the company. Similar charges have been brought against him to which he has pleaded not guilty. He is yet to be tried.

[1] Messrs Kirk and MacDonald have been convicted of offending arising out of the collapse of

Five Star and have been sentenced in the District Court

[5] Five Star was put into receivership on 29 August 2007. At that date, about
$54.5 million was owing to secured debenture investors. Those investors had advanced money to the company on the faith of prospectuses. Assuming estimates

of likely dividends are accurate, the total loss of principal to investors is likely to be at least $37.5 million.

[6] Five Star’s core business was the provision of finance to consumers to enable them to acquire household items such as furniture and whiteware and the like. It was also engaged in rental of commercial equipment. Five Star’s trust deed contained restrictions on the way in which moneys obtained from investors could be used. The company was not to enter into any related party transactions, except in the ordinary course of business and on arm’s length terms.

[7] The first of the two counts to which you have pleaded guilty concerns related party lending of over $35 million through eight separate loans. The second involves six loans totalling…

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 Bowden

Details

AGLC: R v Bowden [2012] NZHC 1249
Case: [2012] NZHC 1249
Decision Date: 6 June 2012

CaseChat Overview and Summary

The case of R v Bowden was heard in the High Court of New Zealand, Auckland Registry. The defendant, Anthony Walpole Bowden, pleaded guilty to two charges of theft by a person in a special relationship. The maximum penalty for each offence was seven years imprisonment. Bowden was a former director of Five Star Consumer Finance Ltd, along with other individuals who were also charged with related offences. Bowden pleaded guilty to charges involving related party lending and was discharged under section 347 of the Crimes Act 1961 for seven other charges of dishonestly using a document.

The legal issues in this case centred on the appropriate sentence for Bowden, taking into account the totality of his offending, the delay in his pleas, and the impact of his actions on investors and financial markets. The court had to consider the aggravating factors, such as the breach of trust, the duration of the offending, and the impact on investor confidence, as well as the mitigating factors, such as Bowden's age, his prior good character, and his assistance to the authorities.

The court concluded that the appropriate sentence for Bowden would be a term of nine months home detention and 100 hours of community work on each charge, to be served concurrently. The court took into account Bowden's late pleas and his culpability in the offending, but also considered his age, remorse, and the assistance he provided to the authorities in their investigation into Five Star's affairs. The court emphasised that the sentence of home detention was only possible due to the unique circumstances of this case, and that in other cases involving dishonesty, imprisonment may be the appropriate sentence.

In conclusion, Bowden was sentenced to a term of nine months home detention and 100 hours of community work on each charge, to be served concurrently. The home detention sentence was imposed on standard conditions, and Bowden was directed to reside at a specified address for the duration of the sentence and to undertake any programmes as directed by a probation officer.

Orders