R v M HC Hamilton CRI 2005-419-122
[2006] NZHC 539
•19 May 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2005-419-122
THE QUEEN
v
M
Hearing: 19 May 2006
Counsel: J N Foster for Crown
M D Talbot for Prisoner
Sentence imposed: Engaging in a money laundering transaction (x1)
350 hours community work
Judgment: 19 May 2006
SENTENCING NOTES OF HEATH J
Solicitors:
Crown Solicitor, Hamilton McCaw Lewis, Hamilton Counsel:
M Talbot, Hamilton
R V M HC HAM CRI 2005-419-122 19 May 2006
[1] M , you appear today for sentence on one charge of engaging in a money laundering transaction. You entered a plea of guilty to that charge on re-arraignment today.
[2] To emphasise the seriousness of offending of that nature, I point out to you that the maximum penalty for such offending is 7 years imprisonment.
[3] Your offending was detected as part of a Police investigation into alleged organised fraud. For the purpose of this sentencing, the facts can be briefly stated.
[4] In late 2002 you were 24 years old. You were working as a duty bar manager in Hamilton. In the course of that employment you met a man whom you knew as “Bumpa”. You also knew that man by the name of “Paul Adams”.
[5] Unbeknown to you, that man was using an alias. His real name was Leslie Orchard. He was a person who was a serial fraudster. I accept you had no knowledge of his background at the time you had dealings with him.
[6] During the time you were working as a bar manager, Mr Orchard approached you to ascertain whether you were interested in doing him a favour. He asked you about the name of the bank that you used. Mr Orchard told you that he needed someone with a Bank of New Zealand account into which he could arrange for money to be transferred and later withdrawn.
[7] Mr Orchard advised you that the amount would be something in the order of
$400,000, less associated costs. It was agreed that you would be paid $20,000 for making your account available for Mr Orchard’s use.
[8] Ultimately, a sum of money totalling $286,352.30 was deposited into your account by a firm of solicitors on 12 November 2002.
[9] In approaching sentencing on these charges, I also record that I accept a submission made by Mr Talbot that, at the time you entered into these arrangements
with Mr Orchard, you had no knowledge of the extent or nature of the frauds that were being perpetrated by Mr Orchard at that time.
[10] I record that I am sentencing you today after entry of a guilty plea because both your counsel and counsel for the Crown accept that guidance for sentencing arising out of the Operation Allsorts investigation in respect of offending of this level has already been given by the Court in another decision.1
[11] As you have no prior convictions and the Crown agree I would have no benefit from a pre-sentence report, I proceed to sentence you today.
[12] Ms Foster, for the Crown, has emphasised that the Crown regard you as more culpable than Mr Dawick. The aggravating features put forward are that you were put on notice by a bank officer of the unusual nature of the transaction and a higher amount was paid into your account than was the case with Mr Dawick. Therefore, the potential loss to those involved was higher.
[13] Further, you made attempts to access funds from your account. Accordingly, you did more than provide Mr Orchard with a bank account. You took active steps to access the funds.
[14] In addition, there was the motivation of personal gain represented by the agreed fee of $20,000.
[15] The Crown accept that your early guilty plea and your prior good character ought to be taken into account in your favour.
[16] Mr Talbot, in submissions today, has addressed two key issues. The first is what he says is a consistent theme running through these events that you had no knowledge, understanding or belief of the nature and extent of the Orchard offending. The second is the aberrant nature of this offending, having regard to your prior good character and evidence of what you did after the offending was detected.
1 R v Dawick (High Court, Hamilton, CRI 2005-419-122, 2 May 2006, Heath J)
of Mr Dawick, and you were motivated by gain, Mr Talbot submits to me that I
ought to treat you more leniently than Mr Dawick.
[18] Since the offending occurred, and before you were charged, you had work with the Inland Revenue Department in what I think I can properly describe as a position of trust in dealings with the public. No difficulties arose from your work in that area.
[19] As soon as you were charged, you disclosed fully to your employer what had happened. You were dismissed as a result.
[20] However, you showed resilience in seeking an apprenticeship with a building firm. You have completed 2581 hours of your building apprenticeship. The person from whom I have received a reference makes it clear that you will be an excellent asset to the building industry. You are punctual and impress your employer with your keenness to learn.
[21] Mr M , in those circumstances, I have no hesitation in regarding this offending as aberrant in nature. I do not believe that you will offend again. I believe sincerely that you have learnt your lesson from this unfortunate series of events.
[22] In sentencing you, I must have regard to the need to hold you accountable for your actions. I am required to promote in you a sense of responsibility for and acknowledgement of that harm. I acknowledge however that you have already accepted responsibility through entry of the early guilty plea.
[23] I am, however, also required to denounce the conduct in which you were involved and to deter you or others of like mind from committing the same or similar offences.
[24] Of importance, I must have regard to the desirability of sentencing those who have offended against the criminal law consistently and to impose the least restrictive outcome in the circumstances.
expounded by both Ms Foster and Mr Talbot. I accept also that your offending is of a similar type to that of Mr Dawick, whom I sentenced to a term of community work of 350 hours together with reparation of $500. No issue of reparation arises so far as you are concerned.
[26] The significant difference, as I see it, between your offending and Mr Dawick’s offending was that you were to receive a significant amount of money for facilitating this transaction; namely, $20,000.
[27] That, in my view, puts your culpability at a higher level than that of Mr Dawick. But I make it clear that it does not put it at a level that warrants a term of imprisonment, having regard to the strictures of the Sentencing Act which stress the desirability of keeping offenders within the community so far as practicable.
[28] My assessment that your culpability is higher would ordinarily result in imposition of a community work order in excess of that imposed on Mr Dawick.
[29] However, from the comprehensive submissions Mr Talbot has made today, I am satisfied that you have already suffered loss of good employment and career prospects as a result of your actions and have indicated a willingness to help Police so far as you can with their inquiries. In addition, you have made solid efforts to rehabilitate yourself and you are to be commended for the work you have carried out in attempting to gain a new career in the building industry. For those reasons, I intend to treat you on par with Mr Dawick.
[30] You will be sentenced to a term of 350 hours community work. You shall report to the probation officer not later than 72 hours from today so that he or she can advise you of the work to be undertaken. The community work ordered will be served over a period of two years.
[31] Mr M , I am satisfied you have learnt from your experience. I wish you well for the future. From what I have seen you have the capability of providing good service to the community in the future and I hope you do so.
P R Heath J
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