R v Gallagher

[2023] NZHC 1770

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-7271

[2023] NZHC 1770

THE KING

v

GERARD ANTHONY GALLAGHER SIMON CARL NIKOLOFF

Hearing:

6 July 2023

Appearances:

A M Toohey, M Thomas and S J O’Brien for the Crown

J R Rapley KC and D M Kirby for the Defendant Gallagher S J Shamy for the Defendant Nikoloff

Judgment:

6 July 2023

SENTENCING REMARKS OF HARLAND J

Introduction

[1]    Mr Gallagher and Mr Nikoloff, you appear before the Court today for sentence having each been found guilty by a jury of charges of corrupt use of official information. Mr Gallagher you were convicted on three such charges, and Mr Nikoloff you have been convicted of one such charge. The maximum penalty for each charge is a term of imprisonment of seven years.1

[2]    It is accepted that a starting point of imprisonment is required. The question for me in sentencing you both today is what that starting point should be and what

1      Crimes Act 1961, s 105A.

R v GALLAGHER & NIKOLOFF [2023] NZHC 1770 [6 July 2023]

deductions should be taken into account for personal and mitigating matters. Both will impact on the end sentence, be it imprisonment which the Crown submits is appropriate, or something less than that, which is the submission made by your lawyers.

The facts

[3]    I first address the facts of your offending and, by necessity, these will be a summary only. For both of you, the facts as they relate to the proposed sale and purchase of the YHA building are relevant. These facts concern charges 1 and 3 in respect of which each of you,2 in that order, were found guilty. The remaining facts relate to the Stonehurst property, which concerns you Mr Gallagher, as you were convicted of charges 5 and 7 which relate to this property.

YHA Building

[4]    So, dealing first with the YHA building. Both of you were convicted by the jury of corruptly using and/or disclosing official information to obtain a commercial advantage for a company known as Project and Investment Management Limited or PIMCO in relation to transactions involving the sale and purchase of the YHA building at 273 Manchester Street, Christchurch. At the relevant time, both of you were employed by the Christchurch Earthquake Recovery Authority (CERA).

[5]    CERA was established in 2011 to coordinate the rebuild of Christchurch following the February 2011 earthquake. You were both employed by CERA as investment facilitators from 2014 to 2016. As such, you were public officials. Your role was to bring vendors and purchasers of land and/or buildings together to facilitate investment in the central Christchurch rebuild. Your role was not to act for any party on a transaction rather, as the job title suggests, you were to facilitate or effectively introduce the parties to each other.

[6]    During your employment at CERA, you both became aware of an earthquake damaged building at 273 Manchester Street, known as the…