R v Rose - [2016] NZHC 1109

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-008108 [2016] NZHC 1109

THE QUEEN

v

PAUL KENNETH ROSE AND
JANE CLARE ROSE

Hearing: 25 May 2016

Counsel:

N R Williams and N R Greive for the Crown
R S Reed for the Defendant, P K Rose
M E Goodwin and S M Kilian for the Defendant, J C Rose

Sentence:

25 May 2016

SENTENCE OF EDWARDS J

Counsel: R S Reed, Auckland
M E Goodwin, Auckland

Solicitors: Meredith Connell, Auckland Serious Fraud Office, Auckland Kilian and Associates, Auckland

R v ROSE and ROSE [2016] NZHC 1109 [25 May 2016]

Introduction

[1] Paul Kenneth Rose, Jane Clare Rose, you appear for sentence today having been found guilty of charges of obtaining by deception under s 240 of the Crimes Act 1961.

[2] Mr Rose, you were convicted and are for sentence on 10 representative charges relating to offending in 2006 and from 2010 to 2012. Mrs Rose, you were convicted and are for sentence as a party to the offence on nine representative charges for offending from 2010 and 2012.

[3] The maximum penalty for obtaining by deception is seven years imprisonment.1

[4] I turn to the facts giving rise to the charges.

Facts

[5] Mr Rose, you were a long-standing and trusted employee of Mighty River Power and prior to that, the Natural Gas Corporation. You were first employed at Southdown Power Station in November 2001.

[6] Penrose Electrical Services Ltd was incorporated in 2006 whilst you were employed at Mighty River Power. The original director of that company was your former partner. Penrose Electrical supplied goods to Mighty River Power, and you were convicted in relation to payments made by Mighty River Power for those goods.

[7] Aero Automation Ltd was incorporated in 2010. By this time, Mr Rose, you were an electrical engineer at Mighty River Power.

[8] Your employment contract required you to disclose any activity or association that could be considered a conflict of interest with your role at

1 Section 241(a).

Mighty River Power. You did not disclose any connection to either Penrose Electrical or Aero Automation. You deliberately did not do so in order to deceive Mighty River Power into making payments to both companies. You were convicted in relation to payments totalling around $2.2m.

[9] Mrs Rose, you were charged as a party to the offending. You were in a relationship with Mr Rose when Aero Automation was incorporated. You were the sole shareholder and director of that company and responsible for the day to day running of the business. The jury found you guilty of assisting Mr Rose in his deception of Mighty River Power in order to obtain payment for goods supplied, and you were found guilty of assisting Mr Rose in relation to payments totalling around
$1.8m.

Sentencing process and principles

[10] In sentencing you both I am required to take into account the purposes and the principles of the Sentencing Act 2002. The purposes that are…

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 Rose

Details

AGLC: R v Rose [2016] NZHC 1109
Case: [2016] NZHC 1109
Decision Date: 25 May 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Paul Kenneth Rose and Jane Clare Rose were sentenced following their conviction on charges of obtaining by deception under section 240 of the Crimes Act 1961. The court was required to decide the appropriate sentence for each defendant, taking into account the purposes and principles of the Sentencing Act 2002, as well as the specific aggravating and mitigating factors present in each case. The court considered the gravity of the offending, the degree of culpability, the impact on the victims, and the need for consistency in sentencing. For Paul Kenneth Rose, the court set a starting point of three years and eight months imprisonment, adjusted for personal factors such as his community involvement, family circumstances, and remorse, resulting in a final sentence of three years and two months imprisonment. For Jane Clare Rose, the court set a starting point of two years and two months imprisonment, adjusted for personal factors such as her role as a single mother and her genuine remorse, resulting in a final sentence of nine months home detention. The court considered the least restrictive sentence possible and concluded that imprisonment was not necessary for Jane Clare Rose.

Orders