A The appeal against the convictions is dismissed.
B The Solicitor-General’s application for leave to appeal against the sentence is granted.
CThe appeal against sentence is allowed. The sentence of 12 months imprisonment, with leave to apply for home detention, is set aside. We substitute instead a sentence of 18 months imprisonment, concurrent, on all counts, with leave to apply for home detention.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] Mr Findlay was charged with 15 counts of fraudulently or dishonestly using a document, contrary to the now repealed s 229A of the Crimes Act 1961, and one count of dishonestly taking or using a document, contrary to s 228 of the Crimes Act. Both offences carry a maximum penalty of seven years imprisonment.
[2] He elected trial by judge alone and was tried by Judge Spear in the District Court at Hamilton over the course of a little over two weeks. The Judge delivered a fully reasoned decision on 11 May 2007, finding Mr Findlay guilty on seven of the fifteen counts (DC HAM CRI 2006-019-138).
[3] On 10 July 2007, Judge Spear sentenced Mr Findlay to 12 months imprisonment, with leave to apply for home detention (DC HAM CRI 2006-419-138).
[4] We have before us two appeals. Mr Findlay appeals against his convictions. The Solicitor-General has lodged an application for leave to appeal on the basis that the sentence of 12 months imprisonment was manifestly inadequate.
Background
[5] Mr Findlay was a registered valuer operating a private practice in Hamilton through his firm, Findlay and Co.
[6] He came into association with one Miles McKelvy. Mr McKelvy was the ringleader of a group of persons engaged in a fraudulent practice characterised as a “property price hydraulic scheme”. This group has subsequently been investigated and prosecuted by the Crown in an operation known as Operation Allsorts.
[7] The nature of the scheme was described by Wilson J for this Court in Mr McKelvy’s sentence appeal, R v McKelvy [2007] NZCA 340 at [5]:
In a price hydraulic fraud, the offenders would identify property that was either for sale or due to be sold by public mortgagee sale. The parties would obtain the property under contract, generally by way of an open market transaction. However, they would not be in a position to fund the original agreement for sale and purchase, so would enter into an agreement for a contemporaneous on-sale. The onsale agreement would be drawn up between the perpetrator and a related party at an inflated price, often supported by a valuation obtained from another associate (a compliant registered valuer). The perpetrators would then apply to a lending institution to borrow up to 80 percent of the…
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.
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Details
AGLC
R v Findlay [2007] NZCA 553
Case
[2007] NZCA 553
Decision Date
CaseChat Overview and Summary
James Thomas Findlay was charged with 15 counts of fraudulently or dishonestly using a document, and one count of dishonestly taking or using a document, contrary to the repealed s 229A and s 228 of the Crimes Act. Both offences carry a maximum penalty of seven years imprisonment. Mr Findlay was found guilty on seven of the fifteen counts and sentenced to 12 months imprisonment, with leave to apply for home detention. The appeal against his convictions was dismissed. The Solicitor-General's application for leave to appeal against the sentence was granted, and the appeal against sentence was allowed. The sentence of 12 months imprisonment was set aside and replaced with a sentence of 18 months imprisonment, concurrent on all counts, with leave to apply for home detention. The starting point adopted by the Judge of two years imprisonment was considered manifestly inadequate, and a 50 percent discount on the basis of previous good character and community standing was excessive. The sentence imposed raised issues of disparity between Mr Findlay and other offenders involved in other property fraud transactions. The court considered the non-quantified values at stake and the limited gains obtained by Mr Findlay, and did not think a starting point of two years in this instance was one which could not have been adopted by the sentencing Judge. However, a higher starting point could not have been criticised. The court took the view that an allowance of over 25 percent solely for good character would be outside an appropriate range.