R v Ross - [2018] NZHC 2552

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTED PERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE DLM3360349.HTML

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-009662 [2018] NZHC 2552

THE QUEEN

v

LEONARD JOHN ROSS

and
MICHAEL JAMES WEHIPEIHANA

Hearing: 28 September 2018

Counsel: J C L Dixon QC and J A Zwi for the Crown
R S Reed QC and A F Pilditch for the Defendant, Ross
M A Corlett QC and J G Donkin for the Defendant, Wehipeihana

Sentence: 28 September 2018

SENTENCE OF EDWARDS J

Counsel: J C L Dixon QC, Auckland
R S Reed QC, Auckland M A Corlett QC, Auckland J A Zwi, Auckland
A F Pilditch, Auckland J D Donkin, Auckland

Solicitors: Serious Fraud Office, Auckland
Cook Morris Quinn, Auckland Rice Speir, Auckland

R v ROSS and WEHIPEIHANA [2018] NZHC 2552 [28 September 2018]

Introduction

[1] Mr Ross, Mr Wehipeihana, you may remain seated until I ask you to stand. You are here today because a jury found you guilty of three charges of obtaining by deception1, and two representative charges of using a forged document.2

[2] The obtaining by deception charges carry a maximum penalty of seven years’ imprisonment. The using a forged document charges carry a maximum penalty of 10 years’ imprisonment.

[3]I am going to follow a process in sentencing you today.

(a)First, I will summarise the nature of your offending.

(b)Second, I will set out the purposes and principles of sentencing which are relevant in your case.

(c)Third, I will consider an appropriate starting point which reflects the gravity of your offending and your culpability for the role that each of you played in that offending.

(d)Fourth, I will consider whether any uplifts or discounts from that starting point should be made for factors which are personal to each of you.

(e)Finally, I will consider whether a minimum period of imprisonment should be imposed.

The offending

[4]I turn now to summarise your offending.

1 Crimes Act 1961, s 240(1)(b).
2 Crimes Act 1961, s 257(1)(b).

[5] Your offending stems from events in 2008 and 2010. You were both shareholders in a company called Emily Projects Ltd. Mr Ross, you were the majority shareholder in that company with a 55 per cent shareholding. You were also a director. Mr Wehipeihana, you held a 35 per cent shareholding in the company.

[6] Emily Projects was a company formed to carry out the development of a two- towered serviced apartment complex in Auckland, called the Celestion. This was a project that you, Mr Ross, had started with a former business partner, and which you took over when you went your separate ways.

[7] The catalyst for the fraud was the need to obtain funding to carry out the development. Financial institutions were only prepared to lend if there were a number of sale and purchase agreements in place. These are called pre-sales.

[8] The essence…

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 Ross

Details

AGLC: R v Ross [2018] NZHC 2552
Case: [2018] NZHC 2552
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the case of R v Ross and Wehipeihana, the High Court of New Zealand was tasked with sentencing Leonard John Ross and Michael James Wehipeihana on charges of obtaining by deception and using forged documents. Both defendants were found guilty of three counts of obtaining by deception and two counts of using forged documents in relation to a fraudulent scheme involving a property development project. The court determined starting points for each defendant, considering the gravity of the offending, their respective roles, and the principle of consistency with other cases. Ross, as the architect of the deception, received a starting point of five years and six months, while Wehipeihana, who played a central role, received a starting point of five years. Various personal factors, such as remorse, good character, and the impact on their families, were considered in determining the final sentences. The court declined to impose a minimum period of imprisonment for both defendants, opting for sentences of four years and four months for Ross and four years and three months for Wehipeihana, reflecting the principles and purposes of sentencing.

Orders