R v Pian - [2020] NZHC 2724

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-010728

[2020] NZHC 2724

THE QUEEN

v

PENG PIAN

Hearing: 16 October 2020

Appearances:

Emma Smith for the Crown

David Jones QC for the Defendant

Judgment:

16 October 2020

SENTENCING REMARKS OF MOORE J

R v PIAN [2020] NZHC 2724 [16 October 2020]

Introduction

[1] Peng Pian, at the age of 38 you appear for sentence after pleading guilty to three charges of obtaining by deception.1 The plea followed my sentence indication.2 Your co-defendants have maintained their not guilty pleas and are due to be tried in May next year.

The offending

[2] I am conscious that you will have already heard me summarise your offending at the sentencing indication. Nevertheless, today’s sentencing must stand on its own. Sentencing is an important judicial function which must be undertaken in public. This requires me to repeat much of what I said at the indication.

[3] The victims in this case had applied to immigrate to New Zealand under the Government’s investor immigration category. As part of the approval process to obtain permanent residence there are investment requirements. The victims decided to consider various real estate investment projects. It was proposed to the male victim that he would join you and your co-defendants in an investment syndicate for the purpose of purchasing land for investment.

[4] The male victim was required to invest sums of money to enable the purchase of a proposed project property, while you and your co-defendants conveyed the false impression you too were contributing towards the investment. In fact, you all misrepresented the amounts payable by him and contributed nothing to the purchase.

[5] The variety and extent of misrepresentations across the entire fraudulent enterprise, which covered approximately 18 months, were vast, but those relevant to the period covered by your alleged offending include:

(a)the male victim was told his share of a $4,400,000 deposit on a property was $2,200,000 reflecting his 50 per cent shareholding. In fact, the

1 On 4 September 2020; Crimes Act 1961, s 240(1)(a). Maximum penalty: seven years’ imprisonment.
2 On 28 August 2020; R v Pian [2020] NZHC 2216.

required deposit was just $2,170,000. He had previously made a payment of $580,000 which was redirected to this purpose. On 17 December 2015 he made a $1,620,000 payment to cover the balance of the deposit. You and your co-defendants contributed nothing to the deposit;

(b)the male victim was told an “under-the-table” payment of $2,000,000 was required to pay your boss to secure the purchase. On 17 December 2015, he made a payment of $1,100,000 to the bank account of a Mr Wang, purporting to be your boss. The male victim did not have sufficient funds in New Zealand to meet the remaining
$900,000 payment and so you and your co-defendants offered to pay it on his behalf, with the understanding he would reimburse you when it was possible to do so. In reality, Mr…

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 Pian

Details

AGLC: R v Pian [2020] NZHC 2724
Case: [2020] NZHC 2724
Decision Date: 16 October 2020

CaseChat Overview and Summary

Peng Pian appeared before the High Court of New Zealand, Auckland Registry, to be sentenced after pleading guilty to three charges of obtaining by deception. The defendant's co-defendants had maintained their not guilty pleas and were due to be tried in May the following year. The defendant's offending involved misrepresenting the amounts payable by the male victim and contributing nothing to the purchase of a property, resulting in the defendant receiving a total of $630,000 from the male victim as a result of the deception. The defendant had no previous convictions, and a pre-sentence report indicated that the defendant had expressed remorse for the offending and had repaid the sum of $660,000. The court considered the relevant purposes and principles set out under the Sentencing Act 2002, and the starting point for the offending was set at four-and-a-half years before any reduction for repayment. The court considered the discount for repayment, personal factors, and the defendant's assistance to the authorities. The court decided that a sentence of home detention was the appropriate outcome in the circumstances, and the defendant was sentenced to eight months' home detention, on standard conditions, with the special conditions recommended at page five of the PAC report.

The court addressed the legal issues of determining the appropriate starting point for the offending, considering the discount for repayment, personal factors, and the defendant's assistance to the authorities. The court balanced the aggravating and mitigating features of the offending, taking into account the defendant's position of trust, the effect on the victim, and the importance of deterring similar offending. The court also considered the least restrictive outcome and any restorative justice processes. The court decided on a sentence of home detention, which was deemed appropriate considering the defendant's personal circumstances, acceptance of responsibility, and prospect of rehabilitation.

Orders