R v Kendall - [2012] NZHC 3336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-7655 [2012] NZHC 3336

THE QUEEN

v

GRAEME JOHN KENDALL

Hearing: 11 December 2012

Counsel: N Flanagan for Crown
G Gotlieb and MA Karam for Offender

Judgment: 11 December 2012

SENTENCING NOTES OF TOOGOOD J

Solicitors:
N Flanagan/R McCoubrey, Meredith Connell, Auckland: nick.flanagan@meredithconnell.co.nz robin.mccoubrey@meredithconnell.co.nz
G Gotlieb/MA Karam, Auckland: gary@gotlieb.co.nz mattkaram@clear.net.nz

R V KENDALL HC AK CRI-2009-004-7655 [11 December 2012]

[1] Graeme John Kendall, you appear for sentence having been found guilty by a jury of two counts of perjury. I am required to explain the basis on which I intend to sentence you and since that will take some time, I want to confirm now that I propose to follow the probation officer’s recommendation and sentence you to home detention, rather than returning you to prison. I do not think that the alternative of community detention suggested by your counsel is sufficient to meet the proper sentencing purposes.

[2] Your trial followed a successful appeal to the Court of Appeal against your conviction by Courtney J, sitting alone, on the same two charges. On that occasion, the Judge had sentenced you to 12 months’ imprisonment. You had served three months of that sentence by the time the Court of Appeal allowed the conviction appeal and released you on bail pending the retrial.

[3] The two counts of perjury contained in the indictment were each based on an affidavit sworn, and in one case filed, by you in proceedings in this Court to set aside a statutory demand under the Companies Act. Because of the way in which Mr Karam and Mr Gotlieb have submitted on your behalf that I should approach a determination of the factual basis for the jury’s verdicts, it is necessary for me to explain the background in some detail. I am satisfied, having presided over the trial, that the following facts were established by the evidence.

[4] Mrs Patricia Murfitt is a teacher. You and she enjoyed a 12-month de facto relationship before marrying in March 2006. You are apparently something of an entrepreneur and at the time of the marriage you owned the shares in around
19 private companies, many of which owned residential or commercial properties around Auckland, including a property at 658 Rosebank Road, Avondale. The building on the property comprises three separate but conjoined units.

[5] In late 2005, Mrs Murfitt wished to buy a residential unit in Sydney Street, Takapuna, adjacent to one she already owned in a block of three. It was decided that one of your companies would be used as a vehicle for this purchase. The shares in the company, Home Pride Limited, were transferred to Mrs Murfitt in

November 2005. At about the time of the settlement of the purchase of the residential unit in January 2006, Mrs Murfitt and you met your accountant, Mr Williams, and a solicitor, to discuss the status of Home Pride Limited. You assured Mrs Murfitt then that Home Pride Limited was…

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 Kendall

Details

AGLC: R v Kendall [2012] NZHC 3336
Case: [2012] NZHC 3336
Decision Date: 11 December 2012

CaseChat Overview and Summary

Graeme John Kendall appeared for sentencing having been found guilty by a jury of two counts of perjury. The nature of the dispute involved the false affidavits sworn by Kendall in opposing a statutory demand under the Companies Act. The legal issues the court was required to decide involved the sentencing of Kendall for the perjury charges and the consideration of a reparation order to compensate the victim, Patricia Murfitt, for the legal fees incurred due to Kendall's actions. The court's reasoning and outcome involved considering the seriousness of the offending, the personal circumstances of Kendall, and the appropriate sentence to be imposed. The court decided that Kendall's actions were deliberate and aimed at causing harm to Patricia Murfitt, leading to a starting point of three years' imprisonment. However, the court allowed a six-month reduction in the sentence due to Kendall's age, ill health, and his 40 years of service to the community as a member of the Fire Service. The court also ordered Kendall to pay reparation in the sum of $25,000 to Patricia Murfitt, which would result in a further six-month discount from the term of imprisonment. The final orders involved Kendall being sentenced to concurrent terms of seven months' home detention, with a requirement to pay reparation to Patricia Murfitt in the sum of $25,000.

Orders