R v Friedlander - [2012] NZHC 3443

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-18613 [2012] NZHC 3443

THE QUEEN

v

MARCUS FRIEDLANDER

Appearances: R Reed for the Crown
R B Hucker and D L Lang Sui

Sentence: 17 December 2012

SENTENCING NOTES OF PRIESTLEY J

Counsel:
R Reed, Crown Solicitor, Auckland. Email: Rachel.reed@meredithconnell.co.nz
R B Hucker, Hucker & Associates, Auckland. Email: hucker@huckerlaw.com
D L Lang Sui, Hucker & Associates, Auckland. Email: daniha@huckerlaw.com

R V FRIEDLANDER HC AK CRI-2011-004-18613 [17 December 2012]

[1] These sentencing notes can be brief and need not follow the traditional format. Following a sentencing indication I gave on 8 August 2012 the prisoner, pleaded guilty on 15 August 2012 to 22 counts in total. Two counts relate to attempting to pervert the course of justice, which carry a maximum of seven years imprisonment; 17 counts relate to forgery, carrying a 10 year maximum; and the final three counts specify using a document with intention to defraud, which carries a seven year maximum. So Mr Friedlander, as you are well aware, these are serious charges.

[2] I indicated a sentence of seven months home detention. I am bound by this indication unless new material comes to light before sentencing.[1] This has not occurred. Both counsel rely on submissions made at the indication stage. The only fresh material before me is the pre-sentence report, which I now summarise.

Facts

[1] Criminal Procedure Act 2011, s 116.

[3] It is unnecessary for me to say much about the summary of facts. The alleged offending took place many years ago (late 2002 to early 2003). In essence the prisoner, then a property developer in his late 40s, nefariously attempted to stave off bankruptcy by placing false information before his creditors with the assistance of his co-accused, Mr Vuletic. This information, false as it was, suggested that monies were owed by the prisoner under an agreement for sale and purchase of a property. In fact there was no such agreement for sale and purchase. The entire arrangement was fictitious. The effect of this deceit was to skew considerably the representative voting rights of proved creditors.

[4] Had the offending not been revealed, the prisoner would have put this false information before the High Court when seeking relief. However, a complaint made to the Serious Fraud Office (SFO) which investigated matters, including the possible involvement of others, and also the investigation extended to other parties. At an early stage the prisoner committed himself to co-operating with the SFO, particularly given the SFO’s assurance it would endeavour to obtain an immunity from prosecution from the Solicitor-General.

[5] As I indicated in my judgment, declining a stay, of 13 July 2012,[2] the SFO’s investigation was somewhat leisurely. The SFO, in good faith, had applied for an immunity from the Solicitor-General which had been declined. As a result of all of this the prisoner has had the threat of prosecution hanging over his head for a number of years. It has had a deleterious effect on his health. He…

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 Friedlander

Details

AGLC: R v Friedlander [2012] NZHC 3443
Case: [2012] NZHC 3443
Decision Date: 17 December 2012

CaseChat Overview and Summary

In the case of R v Friedlander, the defendant, Marcus Friedlander, faced serious charges relating to attempting to pervert the course of justice, forgery, and using a document with intent to defraud. Friedlander, a former property developer, had attempted to avoid bankruptcy by providing false information to his creditors, which significantly skewed the voting rights of the creditors. The case involved significant delay in prosecution, which had a detrimental impact on Friedlander's health, leading to severe depression, anxiety, and despair. The Crown sought a sentence of 2½ to 3 years, while Friedlander's counsel suggested a much lower figure of 6 to 9 months imprisonment. The court arrived at a start point of three years imprisonment, reflecting the totality of the offending, and considered substantial mitigating credits, including the delay in prosecution and Friedlander's cooperation with the Serious Fraud Office.

The court determined a final and humane sentence of seven months home detention, acknowledging the defendant's poor health, supportive partner, and low risk of reoffending. The sentence was imposed on standard post-release conditions, with specific conditions including Friedlander remaining at the specified home detention address at all times unless otherwise authorised by his probation officer, and not engaging in any paid or voluntary employment without prior written consent. The court exercised its discretion under s 80N of the Sentencing Act to impose all standard post-detention conditions set out in s 80O for the somewhat lesser period of six months. The court's decision was based on the totality of the offending, the defendant's cooperation, and the mitigating factors presented.

The court sentenced Friedlander to concurrent terms of seven months home detention with the specified special conditions, acknowledging the defendant's cooperation, health issues, and low risk of reoffending. The decision took into account the seriousness of the charges and the mitigating factors, ultimately imposing a sentence that the court deemed appropriate and humane.

Orders