R v Love - [2016] NZHC 2394

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-379 [2016] NZHC 2394

THE QUEEN

v

RALPH HEBERLEY NGATATA LOVE

Hearing: 6 and 7 October 2016

Appearances:

M J Ferrier and R Parlane for Crown
C R Carruthers QC for Defendant

Sentence:

7 October 2016

SENTENCING REMARKS OF LANG J

R v LOVE [2016] NZHC 2394 [7 October 2016]

[1] Dr Love, you appear for sentence today having been found guilty of a charge of obtaining property by deception.1 The maximum penalty for that charge, as I am sure you know, is one of seven years imprisonment.

Background

[2] The charge was laid as a result of activities that you undertook in your capacity as the Executive Chairman and a trustee of the Wellington Tenths Trust (the Trust). In its current form the Trust is a relatively new organisation, but its task is to manage assets that have been preserved for the Maori people of the Wellington and Taranaki regions for many years. For some years the assets were administered by the Colonial Office and then by other entities including the Maori Trust. In more recent years it has fallen to the Trust to administer those assets for the benefit of Wellington and Taranaki-based Iwi.

[3] The affairs of the Trust are conducted through a board of trustees. Those trustees are elected on a three yearly basis at an Annual General Meeting of the beneficiaries of the trust. You have been a trustee of the Trust for many, many years. You have also been Executive Chairman for many years. As a result, you were seen as the leader of the trustees and held in extremely high esteem.

[4] One of the problems the Trust has faced is that it is asset rich and cash poor. It owns land, but the land traditionally has not returned a great deal of income. Your task and that of the other trustees was to try to turn that situation around by developing the various parcels of land held by the Trust so that they could produce more in the way of income and capital growth for the beneficiaries.

[5] You and the other trustees developed a business model under which you would make assets available for development by property developers on the basis that they took all the risk and met all the costs involved in the development project. This meant that the Trust did not have to outlay money and bore no risk in relation to the development. Furthermore, the Trust retained the ownership of the land and the
share in the income stream in the finished product.

1 Crimes Act 1961, s 240(1).

[6] One of the assets held by the Trust was holdings of land situated in Pipitea Street in central Wellington. The Trust owned several parcels of land in Pipitea Street, but the Crown owned the balance. You and the remaining trustees saw that this was a prime site for redevelopment and to that end you began negotiating with 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.

Continue reading R v Love

Details

AGLC: R v Love [2016] NZHC 2394
Case: [2016] NZHC 2394
Decision Date: 7 October 2016

CaseChat Overview and Summary

Ralph Heberley Ngatata Love was found guilty of obtaining property by deception and appeared for sentencing. The maximum penalty for this offence is seven years imprisonment. Love was the Executive Chairman and a trustee of the Wellington Tenths Trust, which had been managing assets for the benefit of Maori people in the Wellington and Taranaki regions. The Trust was asset rich but cash poor, and Love and the other trustees developed a business model to develop the land for income and capital growth for the beneficiaries. One of the assets held by the Trust was land situated in Pipitea Street in central Wellington. Love and the remaining trustees saw this as a prime site for redevelopment and began negotiating with the Crown to acquire the remaining properties. During this time, Love began negotiating with property developers in Auckland and became aware that the Trust could gain a substantial upfront payment for giving a developer the right to develop the Pipitea Street land. This became known as a "lease premium." Negotiations with the developers took some time, and on 22 December 2006, Love signed an agreement to lease the Pipitea Street land to the developers without the knowledge of his fellow trustees. The developers paid a sum of $3 million to a company formed by Love, which was then used to reduce the amount owing on Love's mortgage. The Trust entered into a new arrangement with the developers, but none of the trustees or beneficiaries knew about the $1.5 million payment until several years later when the Serious Fraud Office began investigating the affairs of two individuals. Love stood down from his position in the Trust at that point. The court considered the starting point for the sentence to be four years nine months imprisonment, reflecting Love's overall culpability on the charge. The court applied a discount of 30 per cent, or 18 months, to reflect Love's contribution to New Zealand society and Maoridom, and a further discount of nine months to reflect his age and health issues. Love was sentenced to two years six months imprisonment, with the court noting that the sentence was designed to be a deterrent for trustees who manage assets on behalf of beneficiaries.

Orders