R v Colosimo - [2012] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA687/2011
[2012] NZCA 60

BETWEEN MICHAEL SANTO COLOSIMO
Appellant

AND THE QUEEN
Respondent

Hearing: 16 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: W T Nabney and R E Nabney for Appellant
M J Lillico for Respondent

Judgment: 6 March 2012 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

After a two-week trial in the District Court at Tauranga before Judge Rollo and a jury, Mr Colosimo was found guilty on one count of forgery and one count of dishonestly using a document. He was sentenced on 10 October 2011 to imprisonment for two years and six months.[1]
[1]R v Colosimo DC Tauranga CRI-2009-070-6860, 10 October 2011 [sentencing judgment].
Mr Colosimo has appealed against his conviction and sentence. The appeal against sentence was on the grounds that evidence was improperly admitted, that the Judge should have declared a mistrial, and that the Judge’s summing up was unfairly prejudicial to Mr Colosimo. The appeal against sentence was on the grounds that it was manifestly excessive.

Background

Mr Colosimo owned a restaurant, known as The Kestrel, in Tauranga through a company Cervino Holdings Limited [Cervino]. Mr Colosimo was a director and shareholder of Cervino. In 2006, Mr Colosimo wished to sell the restaurant and the complainants were interested in buying it. In the course of discussions with the complainants, Mr Colosimo presented a financial statement which showed a net profit of $199,597 for the ten-month period to November 2005. The complainants completed the purchase of the restaurant but subsequently found that it was constantly trading at a loss.
The charges against Mr Colosimo focused on the financial statement he presented to the complainants. This document was referred to as “the November financials”. The Crown alleged (and the jury, by its verdicts, accepted) that the November financials were forged.
There were two aspects to the forgery. First, the front page was created from the letterhead and professional waiver statement of the firm of accountants engaged during 2005 by Mr Colosimo. Secondly, the second page was taken from a draft trading statement prepared by new accountants engaged by Mr Colosimo in January 2006. The draft trading statement was qualified and subject to confirmation of a number of pieces of information. $100,000 was added to the revenue and net profit set out in the draft, thus increasing the purported net profit for the ten month period from approximately $99,000 to approximately $199,000.
Mr Colosimo’s defence at trial, as indicated in his counsel’s brief opening statement to the jury, was, first, that the November financials were not a forgery but rather were a genuine document prepared by his former accountant, Mr McFadden. Secondly, that if they were forged, then that was done by another person and without his knowledge. The defence case was that Mr Harvey, who was employed by Mr Colosimo to help run his businesses, and…

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 Colosimo

Details

AGLC: R v Colosimo [2012] NZCA 60
Case: [2012] NZCA 60
Decision Date: 6 March 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Michael Santo Colosimo, appealed both his conviction and sentence for forgery and dishonestly using a document. The appeal against conviction argued that evidence was improperly admitted, the Judge should have declared a mistrial, and the summing up was unfairly prejudicial. The appeal against sentence argued that the sentence was manifestly excessive. The Court found that the evidence was properly admitted, the Judge did not err in refusing to declare a mistrial, and the summing up was not unfairly prejudicial. The Court also found that the sentence was not manifestly excessive.

The appellant owned a restaurant through a company and presented falsified financial statements to prospective buyers, leading to their purchase of the business at an overvalued price. The appellant argued that the financial statements were not forged and that if they were, another person was responsible. The Crown presented evidence that the statements were indeed forged by the appellant and used to defraud the buyers.

Regarding the appeal against conviction, the Court found that evidence of the appellant's bankruptcy was relevant and not unfairly prejudicial. The Court also found that the Judge did not err in admitting evidence of the draft trading statement and refusing to declare a mistrial. Finally, the Court found that the summing up was not unfairly prejudicial, as the Judge properly explained the trial issues and put the respective Crown and defence cases.

Regarding the appeal against sentence, the Court found that the starting point of three years imprisonment was not manifestly excessive, taking into account factors such as culpability, the extent of financial loss to the complainants, premeditation, and the maximum penalty for each offence. The Court also found that the discount of six months for personal mitigating factors was appropriate. Therefore, the end sentence of two years and six months imprisonment was not manifestly excessive.

In conclusion, the appeals against conviction and sentence were dismissed. The Court found that the evidence was properly admitted, the Judge did not err in refusing to declare a mistrial or in the summing up, and the sentence was not manifestly excessive.

Orders