Counsel: N Davidson QC, N Williams and M Thomas for the Crown
B Gray QC and R Sussock for the Prisoners Douglas and Nicholls
N Gedye, T Mullins and M Heard for the Prisoner Tallentire

Judgment: 31 August 2012

SENTENCING NOTES OF WYLIE J

Distribution:
N Davidson QC: Nicholas@davidsonqc.co.nz
N Williams: nick.williams@meredithconnell.co.nz
M Thomas: Michael.thomas@sfo.govt.nz
B D Gray QC: bdgray@shortlandchambers.co.nz
R Sussock: Rachel.sussock@wilsonharle.com G Tompkins: Guy.tompkins@wilsonharle.com N Gedye: Nathan.gedye@xtra.co.nz
T Mullins: tim.mullins@lsl.co.nz
M Heard: michael.heard@lsl.co.nz
S Ellis: sam.ellis@lsl.co.nz

R V DOUGLAS & ORS HC AK CRI 2011-004-012988 [31 August 2012]

Introduction

[1] Mr Douglas, Mr Nicholls and Mr Tallentire, you may remain seated until I

ask you to stand.

[2] Following a four-week trial, you have each been found guilty by me, sitting as a Judge alone, of various charges of theft as a person in a special relationship. I have entered convictions against you in relation to these charges.

[3] Mr Douglas and Mr Nicholls have each been convicted of three charges of theft as a person in a special relationship, pursuant to s 220 of the Crimes Act 1961. The three transactions which resulted in their convictions were respectively known as the Numeria 1 transaction, the Clyde 1 transaction and the Clyde 2 transaction.

[4] Mr Tallentire has been convicted of two charges of theft as a person in a special relationship, again pursuant to s 220 of the Crimes Act. I found him guilty in relation to the Clyde 1 and Clyde 2 transactions.

[5] The maximum penalty for each conviction is seven years’ imprisonment.

Factual Background

[6] The charges in respect of which Messrs Douglas, Nicholls and Tallentire have been found guilty arise out of their management of the finance company, Capital + Merchant Finance Limited.

[7] Capital + Merchant Finance Limited was incorporated on 18 January 2002. It operated as a finance company, predominantly providing loans for property development and construction projects.

[8] Mr Douglas was a director of the company from 18 January 2002 until

15 February 2007. Mr Nicholls was a director from 18 January 2002 until

1 November 2005. He was reappointed as a director on 31 March 2006, and he remained a director thereafter. Mr Tallentire was appointed as a director on

13 October 2006 and he remained a director thereafter. He had previously been the

company’s Chief Executive.

[9] Up until November 2006, Messrs Douglas and Nicholls owned Capital + Merchant Finance Limited through a chain of corporate entities and trusts. The shares were owned by other companies which in turn were owned by an entity known as Investment Capital Trust Limited. Messrs Douglas and Nicholls controlled that company. It held the shares on behalf of a trust, the Investment Capital Trust. The principal beneficiaries of that trust were further trusts associated with Messrs Douglas and Nicholls.

[10] The lending…

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 Douglas

Details

AGLC: R v Douglas [2012] NZHC 2271
Case: [2012] NZHC 2271
Decision Date: 31 August 2012

CaseChat Overview and Summary

This case concerns the sentencing of Wayne Leslie Douglas, Neal Medhurst Nicholls, and Owen Francis Tallentire, who were convicted of theft as persons in a special relationship. The court was required to determine the appropriate sentence for each offender, taking into account the nature and circumstances of the offending, the culpability of the offenders, and the principles and purposes of sentencing. The court considered the aggravating and mitigating factors personal to each offender, as well as the impact of the offending on the victims. The court also examined relevant case law to determine the appropriate sentence for the type of offending committed by the offenders. Based on the analysis, the court imposed sentences of imprisonment on each offender, with some sentences being served concurrently and others cumulatively. The court also considered whether to impose a minimum period of imprisonment but ultimately decided against it. The court found that the imposed sentences adequately achieved the purposes of sentencing and provided appropriate accountability, denunciation, and deterrence for the offending.

Orders