R v DeMarco - [2019] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-085-792

[2019] NZHC 3209

THE QUEEN

v

EUGENE JOHN DEMARCO

Hearing: 26-30 August, 2-13 September 2019

Counsel:

S C Carter and N R Greive for Crown M A Corlett QC for Defendant

Date:

5 December 2019

SENTENCING NOTES OF CLARK J

Introduction

[1] Mr DeMarco, you appear for sentence today a jury having found you guilty of four charges of theft by a person in a special relationship and two charges of obtaining by deception. In respect of each of the charges the maximum penalty is seven years imprisonment.

[2]In sentencing you, I will:

(a)set out the nature of your offending.

(b)identify the purposes and principles relevant to your sentence;

R v DEMARCO [2019] NZHC 3209 [5 December 2019]

(c)outline the appropriate starting point for your offending;

(d)explain any adjustments to that starting point; and

(e)impose an end sentence.

[3] You may sit while I go through these matters. I will ask you to stand when I reach my sentence.

Overview of offending

[4] You are a United States citizen, resident in New Zealand. You have a passion for piloting vintage aircraft. For many years you were employed as the Production Manager of The Vintage Aviator Ltd, a company established by Sir Peter Jackson and Ms Fran Walsh to manufacture reproduction and replica World War I aircraft. You managed the production of aircraft, test flying and arranging sales. As a senior member of staff and trusted employee, you enjoyed a large degree of autonomy.

[5] The first set of offending relates to the sale of three aircraft owned by Vintage Aviator. In April 2016, you were contacted at Vintage Aviator by Mr Reg Field who was inquiring about purchasing two aircraft from The Vintage Aviator to donate to New Zealand Warbirds Association (Warbirds).

[6] As matters progressed, it was decided that Mr Field would instead donate the funds to Warbirds and Warbirds, using Mr Field’s funds along with other donations, would purchase three aircraft from The Vintage Aviator.

[7] The total price you quoted for the three aircraft was just over $2.1 million. This was $622,000 more than the price The Vintage Aviator would have typically charged for these aircraft. For convenience, when I refer to the price that The Vintage Aviator would typically charge for its planes, I will use the term “list price”. Believing it was purchasing the three planes from The Vintage Aviator, Warbirds agreed to pay the
$2.1 million for the aircraft.

[8] You told Mr Corke, the CEO of The Vintage Aviator, that you were charging more than the list price, because Mr Field was a friend of yours and he wanted to pay extra to assist you financially and if he could not pay more than the list price he would not go through with the transaction.

[9] None of this was true. Mr Field was not a friend. He had never met you prior to…

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 DeMarco

Details

AGLC: R v DeMarco [2019] NZHC 3209
Case: [2019] NZHC 3209
Decision Date: 5 December 2019

CaseChat Overview and Summary

Eugene John DeMarco was sentenced in the High Court of New Zealand for charges of theft by a person in a special relationship and obtaining by deception. The court was required to determine the appropriate sentence considering the nature of the offending, the purposes and principles of sentencing, and any mitigating or aggravating factors. The court assessed the sophistication and magnitude of the offending, the harm caused, the motivation behind the crime, and the impact on the victims. The court found the starting point for sentencing to be three years and six months imprisonment, but adjusted it to account for the hardship on the defendant's family, resulting in a final sentence of two years and five months imprisonment for the deception charge and 18 months imprisonment for the theft charges, to be served concurrently.

The court concluded that the defendant's offending was sophisticated, involved serious breaches of trust, and had a significant impact on the victims and the community. Although there were no actual losses, the potential loss and harm were substantial. The court considered the defendant's offers of amends to be litigation settlements rather than genuine efforts to accept responsibility. The court also found that there was no genuine remorse demonstrated by the defendant. The only mitigating factor considered was the hardship the sentence would cause the defendant's young family, leading to a 30% reduction in the sentence. The final orders were for the defendant to serve two years and five months imprisonment for the deception charge and 18 months imprisonment for the theft charges, to be served concurrently.

Orders