R v F HC Hamilton CRI 2006-419-134

[2006] NZHC 1595

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-134

THE QUEEN

v

F

Hearing:         15 December 2006

Counsel:         R G Douch and R L Mann for Crown

D Allan for Prisoner

Sentence imposed:     Altering a document with intent to deceive (x1)

300 hours community work

Judgment:      15 December 2006

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Hamilton

D Allan, Hamilton

R V F HC HAM CRI 2006-419-134  15 December 2006

[1]      Mr F  , you appear for sentence today having been found guilty by me, following  a  Judge  alone  trial,  on  one  charge  of  altering  a  Land  Transfer  Act document with intent to obtain a benefit by deception.

[2]      Mr F  , what you did was serious.  It was serious because the whole land transfer system in New Zealand is based on the premise that solicitors act faithfully in ensuring that accurate documentation is registered.  Otherwise, there is a risk that people can be defrauded readily of interests in land.

[3]      While I make clear that I have made no finding of fraud against you, I have been satisfied that what you did was intended to gain a benefit of registration for clients  for  whom  you  were  acting  knowing  that  you  were  deceiving  the  Land Transfer Office into registering on that basis.

[4]      The particular risk that was involved in this case was the need to comply with the obligations set out in s 103A of the Property Law Act for a mortgagee to take reasonable care to obtain the best price reasonably obtainable at a mortgagee sale. The effect of your alteration to the ANZ to Newlands transfer was to pass the risk of that sale under the mortgage from Mr Newlands (as assignee of the mortgage) to the ANZ (as original mortgagee).  That had particular significance in this case because the risk that Mr Newlands would have assumed was acute, having regard to the related party transaction that was being undertaken in circumstances where there was no competitive process to ascertain true market value.

[5]      Having said that, your good character in the past is plain for all to see.  It is sad, Mr F   that I have to talk to you today from a position of sentencing when you have clearly done so much good over the previous years.

[6]      But, regrettably, the actions, into which I have no doubt you were coerced by Mr McKelvy and his associates, have led you to the unhappy position of having to take responsibility for a criminal act.

[7]      The mitigating features are your prior good character.  I accept that you show some remorse, though that must be tempered by your evidence to avoid a finding of deception.

[8]      There is no risk of you re-offending and I work on that basis.  I take account of the business of your practice at the relevant time, but that cannot excuse what you did.  As I say in the reasons for judgment, every law student who has heard of the case of Frazer v Walker (probably the only land law case that people remember after they have left law school) is that you set red lights flashing and alarm bells ringing when you hear about altering land transfer documents.

[9]      I accept that you are less culpable than Mrs Carran whom I sentenced earlier this year to perform 375 hours community work.

[10]     This is the sort of case where potentially a sentence of imprisonment could have been available.   However, I have concluded that that would be inappropriate having regard to the mitigating factors.

[11]     So far as your practise is concerned it has been sold.  Mr Allan has relayed an undertaking from you today not to practise law.  You have personally paid $61,000 to ASB in respect of a loss it suffered.

[12]     There  are  disciplinary  charges  outstanding  in  relation  to  this  particular incident.   I am satisfied that it is appropriate for me to leave those issues to the appropriate disciplinary tribunal otherwise I would risk trying to deal with you on two separate bases which would be inappropriate.

[13]     Mr F  , I conclude that the appropriate sentence to impose is less than the sentence imposed upon Mrs Carran, despite the fact that she entered a guilty plea.  In the circumstances, I take the view that the most merciful sentence I can impose is a term of community work of 300 hours.

[14]     You shall serve 300 hours community work.  You are required to report to a probation officer no later than 72 hours from today’s date to ascertain the work that needs to be carried out.

[15]     Mr F  , I reiterate how sad  I find it to have to sentence  you in these circumstances.   Sincerely, I wish you well for the future.   You have tremendous family support and I acknowledge the presence of your family today.   I sincerely hope that you can put this behind you now that the result of the process is clear.

[16]     Stand down.

P R Heath J