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: [email protected]
R B Hucker, Hucker & Associates, Auckland. Email: [email protected]

D L Lang Sui, Hucker & Associates, Auckland. Email: [email protected]

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 is clearly suffering from severe depression, anxiety, and, in recent times, despair.

Sentence indication

[2] F v R [2012] NZHC 1682.

[6]      The  prisoner  sought  a  sentencing  indication  in  terms  of  the  Criminal Procedure Act 2011.  After reviewing helpful submissions from counsel, I arrived at a start point by the following route.  The Crown suggested a start point of 2½ – 3 years.   The prisoner’s counsel suggested a much lower figure of 6  – 9 months imprisonment.  I consider this latter submission as totally unrealistic having regard to previous sentences imposed for attempting to pervert the course of justice.

[7]      I intend today to use s 117(e) of the Crimes Act 1961 count as the lead sentence even though it carries a lesser maximum term of imprisonment than the forgery counts.   The offending, Mr Friedlander, was deliberate and sustained. Endeavouring to hoodwink creditors in this fashion, and in particular to do so in a statutory procedure and under the aegis of the High Court, is a serious matter.  The start point, to reflect totality on all counts, is one of three years imprisonment.

[8]      I considered that the prisoner was entitled to substantial mitigating credits.  I indicated that the delay, to which I have referred, and the resulting depression and anxiety, in combination justified a discount of between 20 – 25 per cent.  There was also the prisoner’s co-operation both historic and future.  The prisoner was willing to give  evidence  against  a  co-offender  (who  has  since  pleaded  guilty)  at  his forthcoming trial.

[9]      In terms of a discount for any guilty plea, I noted that the prisoner’s trial was at that stage only two weeks away.  The Crown responsibly accepted the Solicitor- General’s involvement precluded an earlier plea, and in any event the prisoner had

indicated a willingness to plead guilty and cooperate at an early stage.  I indicated that I would give a total maximum credit for a guilty plea and cooperation in the region of 45 per cent.

[10]     The resulting sentence of imprisonment I reached was somewhere in the region of 14 to 16 months.  Under the current law, arriving at a short sentence would entitle me to impose home detention, but I noted because of the antiquity of the offending (prior to 1 October 2007) I would have the retrospective power to impose a sentence of home detention regardless of whether the equivalent sentence would be a short sentence or not.

[11]     I indicate  a final and humane sentence for the prisoner as one of seven months home detention.  Mr Vuletic also sought a sentencing indication in the wake of my own and was sentenced by Gilbert J on 29 November 2012 to nine months home detention.[3]

Pre-sentence report

[3] R v Vuletic [2012] NZHC 3198.

[12]     The pre-sentence report I mentioned came after my sentencing indication. The report writer describes the prisoner as being of poor health and in receipt of a sickness benefit. The prisoner was unable to discuss the background to the offending because of continuing SFO investigations.  No rehabilitative needs were identified and the prisoner was described as highly motivated not to reoffend.  In essence the risk of re-offending is low if not minimal.   He also has the benefit of a highly supportive partner.

[13]     The report writer explained that in order to facilitate a sentence of home detention the prisoner had relocated from his previous address on Waiheke Island to a guest house in the Eastern suburbs.  This address is suitable for the purposes of home detention and all necessary consents have been obtained.

[14]     In  short,  I  intend  to  impose  the  indicated  sentence  of  7  months  home detention,  on  standard  post-release  conditions.    I  have  no  concerns  over  any

inconsistencies with the sentence imposed on your co-offender, Mr Vuletic, who has a  lesser  cluster  of  mitigating  factors  available,  even  although  you  were  more culpable and mature than he.   The normal standard conditions of home detention which are attached to the reports will apply in your case.

End sentence

[15]     Please stand up Mr Friedlander.

[16]     On all the charges to which you have pleaded guilty, being the two counts of attempting to pervert the course of justice, 17  of forgery, and  three of using a document with intention to defraud, I sentence you to concurrent terms of seven months home detention with the following special conditions:

(a)      You are to remain at the specified home detention address at all times unless otherwise authorised by your probation officer.

(b)You are not to engage in any paid or voluntary employment without the prior written consent of your probation officer.

(c)      You must go to the address immediately and await the arrival of a security officer.   Mr Hucker will explain to you what is involved there.

(d)I  intend,  in  the  exercise  of  my  discretion  under  s 80N  of  the Sentencing Act to impose all the standard post-detention conditions set out in s 80O for the somewhat lesser period of six months.

[17]     Thank you, you may now stand down.

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Priestley J