R v S HC Hamilton CRI 2005-419-122

[2006] NZHC 621

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2005-419-122

THE QUEEN

v

S

Hearing:         1 June 2006

Counsel:        J N Foster for Crown

P G Mabey QC for Prisoner

Sentence imposed:     Engaging in a money laundering transaction (x2)

350 hours community work (concurrent)

Reparation ordered: $5,000 to be paid within 9 months in one lump sum

Judgment:      1 June 2006

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

P G Mabey QC, Tauranga

R V S HC HAM CRI 2005-419-122  1 June 2006

[1]      S  , you appear for sentence today having pleaded guilty on

19 May 2006 to two charges of engaging in a money laundering transaction.

[2]      At your counsel’s request I have agreed to sentence you today without the need for a pre-sentence report.   Mr Mabey QC, on your behalf, has responsibly accepted that the sentence I imposed on Mr Dawick for similar offending [see R v Dawick (High Court, Hamilton,  CRI  2005-419-122, 2  May 2006)]  provides  the benchmark for consideration of the appropriate sentence to impose on you.

[3]      In September 2001 and May 2002, you had dealings with Mr Orchard, a person whose background you had general knowledge of.  You agreed to let him use your bank account as a conduit to filter funds from a solicitor’s trust account to him for his benefit.  The moneys that passed through your account turned out to be the proceeds of a prior serious offence for the purpose of the crime of money laundering. I accept completely that you did not know precisely what Mr Orchard had done or the precise nature of the crime he had committed.

[4]      In September 2001, the sum of $45,000 was deposited into your account.  On the next day $40,000 was paid out for Mr Orchard’s benefit, the balance remaining in your account.

[5]      On 9 May 2002, the sum of $27,265.65 was paid into your account.  The sum of $25,000 was paid out for Mr Orchard’s benefit the following day.   Again, the balance remained in your account.

[6]      That meant that a total of $72,265.65 passed through your account.

[7]      There has been discussion about whether you received a fee for your services. I accept that you did not see it that way, but clearly some moneys remained for your benefit.

[8]      I do not treat you as having received a specific fee or having agreed to do this in return for a specific sum of money. But I do deal with you on the basis that you had the ability to use the remaining portion of the money for your own benefit.   I

note that the amount for which reparation should be paid is agreed between the

Crown and your counsel at $5,000.

[9]      For the Crown, Ms Foster has accepted that the level of your culpability taken together with the need for consistency in sentencing for offenders on charges arising out of this particular Police investigation requires a non-custodial sentence.

[10]     Ms Foster has referred to planning and premeditation as a motive.  She has also referred to financial greed. But, it will be clear from what I have said that I do not accept that greed was a motivation.

[11]     In mitigation you are entitled to credit for an early guilty plea and for your previous good character.   You have no relevant convictions.   You accept that reparation should be paid in the sum of $5,000.  I will deal with the way in which that is to be paid later.

[12]     Mr Mabey, takes the view that you are no more culpable than Mr Dawick and the same sentence together with appropriate reparation could be ordered.

[13]     I have received information concerning your financial and family situation. You will have heard me say that I do not wish to put undue strain on your financial situation in the meantime.  The orders I propose to make will reflect that.

[14]     I  am,  however,  required  to  hold  you  accountable  for  the  offence  you committed and to provide reparation to the victims.  I am also required to denounce the conduct in which you were involved.  Other factors I must take into account on sentencing include the need for consistency in sentencing for people who commit like offences.

[15]     I am satisfied that your early plea of guilty recognises your responsibility for the offending.  You are to be commended for taking that approach.  I also take the view that you are unlikely to offend again.

[16]     In those circumstances, I need to compare your sentence with that I imposed on Mr Dawick.   Mr Dawick was sentenced to  350 hours community work  and

reparation of $500.  A non-custodial sentence in your respect is justified on the same basis I outlined when sentencing Mr Dawick.

[17]     I take the view that the factors which led to the offending, while different from Mr Dawick, cannot be regarded as more or less culpable.  In effect, as opposed to Mr Dawick’s complete business naivety, you had more knowledge of business affairs but, in my view, misguidedly tried to help an old  friend without  making proper inquiry.  So, in essence, the two of you were at a similar culpability level.

[18]     Having regard to all of those factors, you are sentenced to serve a term of community work of 350 hours on each charge, to be served concurrently.  That will be served within 24 months of today’s date.  You are to report to a probation officer not later than 72 hours from today so that he or she can advise you of the work to be undertaken.

[19]     You are ordered to pay reparation in the sum of $5,000. $2,500 is payable to Basecorp Finance Ltd.   The balance will be paid to a private lender, the name of which is to be notified by Ms Foster.  Ms Foster shall file a memorandum with the Registrar identifying the private investor on or before 8 June 2006.   If that lender cannot be identified the whole of the reparation shall be paid to Basecorp.  I note that both suffered  losses in excess of $50,000 from Mr Orchard’s  frauds.    I accept, however, that you were not responsible for those losses.

[20]     The reparation I have ordered, namely the sum of $5,000, shall be paid within nine months of today’s date in one lump sum.

[21]     Mr S  , I recognise what Mr Mabey has said to me and, as I have said, I accept the responsibility you have taken.  I suspect you have learnt a solemn lesson from what has happened and, as I say, I don’t expect to see you before the Court again.

[22]     Stand down please.

P R Heath J