R v S HC Hamilton CRI 2006-419-122

[2006] NZHC 787

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-122

THE QUEEN

v

S

Hearing:         7 July 2006

Counsel:         R G Douch for Crown

F P Hogan for Prisoner

Sentence imposed:     Obtaining a document with intent to defraud (x3)

400 hours community work (concurrent)

Judgment:      7 July 2006

SENTENCING NOTES OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

F P Hogan, Auckland

R V S HC HAM CRI 2006-419-122  7 July 2006

[1]      S  , you appear for sentence today having pleaded guilty to three charges of obtaining a document with intent to defraud.  Each of those charges carries a maximum penalty of 7 years imprisonment.   That, I tell you, to emphasise the seriousness of the crimes you committed.

[2]      There are two transactions which give rise to the three charges.   The first concerns  a  property at  Waihi  Beach.    The  second  involves  a  farm  property  in Southland.

[3]      In respect of the Waihi Beach transaction, you have pleaded guilty to two charges in relation to the use of agreements for sale and purchase involving your company, Rubenstein Group Ltd.

[4]      The first agreement was between National Mortgage Acceptances Ltd, a company associated with Mr Stirling, and Rubenstein as purchaser.  That occurred on 19 February 2003.

[5]      The second was the use of another agreement for sale and purchase, this time between Rubenstein and Ms Jacobs, as purchaser.

[6]      Those two agreements were entered into as part of a scheme to defraud the owner and a finance company by selling the property at mortgagee sale at an undervalue, with the intention of profiting at the expense of the owners and subsequent mortgagees, whose interests would be extinguished from the Register.

[7]      The third charge relates to the farm property at Gore.   You have pleaded guilty to a charge involving the use of another agreement for sale and purchase between Rubenstein and National Mortgage Acceptances Ltd which was to be used for a dishonest purpose similar to that hatched for the Waihi property.

[8]      Mr Douch, for the Crown, submitted that you played an essential role in facilitating the frauds.  Having said that, he accepts that you were not involved in the planning.  Rather you were recruited by Mr Stirling to facilitate the transaction.

[9]      Mr Douch submits that your motivation was greed and a desire to make some money from the deal.   Mr Douch points to the significant amounts of money potentially involved.   He submits you gave no thought to the consequence to the owners and the financiers had the scheme proceeded.

[10]     Mr Douch suggests that it must have been obvious what those consequences were, had you given any thought to it.  This, Mr Douch submits, was unscrupulous offending.   Deterrence and denunciation, he submits, are the primary sentencing objectives.  He also underlines the importance of maintaining integrity in the land transfer system, something which can be undermined by frauds of this nature.

[11]     Mr Douch submits that this is a case in which a sentence of imprisonment is required to mark the offending.  In that regard, Mr Douch has referred me to various decisions I have given involving sentencing of those involved in money laundering activities.  He submits that your culpability is higher because you were involved at the first step of the offence from which laundered money was to come.  The money laundering offences were secondary to those and flowed from the offences in which you were involved.

[12]     Mr Hogan, on your behalf, has submitted that a sentence of community work is appropriate.  He refers to the widespread support you have from family and friends and I acknowledge the presence in Court today of those who are here to support you.

[13]     You are now 63 years old.   You will turn 64 shortly.   You grew up in a supportive family and have worked hard throughout your life.   You have made contributions to various types to the community and there are no relevant convictions of which I need to take account.  You had the misfortune to be adjudged bankrupt in

1999 but again there is nothing flowing from that that I ought to hold against you.

[14]     Mr Hogan submits that you became involved in this enterprise through your connection to Mr Stirling.  While you were prepared to work with him he showed scant regard for your interests by proceeding to forge documents in your name in relation to the transaction.

[15]     Mr Hogan advises me that you have modest assets with only a motor vehicle in your name.   In the event that I were to take the view that a sentence of imprisonment was necessary to mark this particular type of offending, Mr Hogan submits that leave to apply for home detention should be granted with deferral of commencement of the sentence to await a decision on such an application.

[16]     There  are  a  number  of  purposes  to  which  I  must  have  regard  when sentencing.  I must hold you accountable for the harm you have done to victims and the community by your offending.   I am required to promote in you a sense of responsibility for and acknowledgement of that harm.  I, in fact, acknowledge that you have already accepted responsibility through the entry of your guilty pleas.

[17]     I am required to denounce the conduct in which you were involved and to endeavour to deter others from committing the same or similar offences.   My assessment is that you got yourself in too deep after initially helping a friend and thinking you could make some quick money.  I doubt very much whether the Courts will see you again in future.  My assessment is you have learned your lesson.

[18]     One of the most important things I need to take into account when sentencing you is the general need for desirability of consistency in sentencing and also the need to  treat  like  offenders  detected  during  the  course  of  Operation  Allsorts  in  like manner.  I must also impose the least restrictive outcome in the circumstances.

[19]     The  main  aggravating  feature  of  your  offending  is  the  premeditation involved.  You have a number of mitigating factors working in your favour, namely your  early  guilty  plea,  a  limited  involvement  in  the  offence,  the  fact  that  you evidence remorse and the previously good character over your life.

[20]     In my view, Mr S   your offending was opportunistic.  You had a chance to make what I will colloquially call a “quick buck” with little or no effort. It seems to me that you could not overcome your desire to do that even when you recognised the fraudulent nature of what you were doing.  The fact that you acted dishonestly is recognised by your pleas of guilty.  The offending is serious for the reasons Mr Douch put forward.

[21]     Offending of this type has the potential to undermine the land transfer system and finance systems and to bring about an undesirable lack of confidence for those who use those systems.  Those are not things we necessarily think about every day, but every time someone endeavours to perpetrate a fraud on one of the systems we rely upon for the buying and selling of homes, that is the effect it has.

[22]     I do not intend to suggest in any way that you turned your mind to that issue and deliberately proceeded in any event.  I am sure you did not.

[23]     While you were used as a facilitator, your conduct had the potential to cause significant loss to others while you gained financially.  It was more good luck than good management that the schemes did not proceed with losses suffered directly as a result of what you did.

[24]     I assess your culpability within the hierarchy of offenders who have played active  roles  in  the  commission  of  offences,  at  the  lower  end  of  the  scale. Nevertheless, I regard you as more culpable than those who have been involved in money laundering activities for the reasons Mr Douch advanced.

[25]     The first thing I must do is to consider what sentence of imprisonment would ordinarily be imposed.  I then need to consider whether it is appropriate to impose a community based sentence instead of that.

[26]     I assess a starting point for sentence, including aggravating features, of 18 months imprisonment.

[27]     From that you are entitled to a credit for your early guilty pleas.   As Mr Douch has indicated that there were responsible discussions going on for some time with your counsel, I am prepared to give the benefit of the maximum credit that I have given for early guilty pleas which represents one-third of the starting point for sentence.   I am also prepared to give a credit of a further three months to reflect remorse and prior good character.  The end point would be on that basis a sentence of nine months imprisonment.

[28]     Parliament has decreed that Judges must endeavour, as far as possible, to keep offenders within the community, consistent with the need to have denunciation of offending and deterrence of others.   Another factor is the need to protect the community from your offending.

[29]     I regard the need for denunciation as only going to the need to make clear to members of the public how seriously offending of this type is viewed.  I do not see deterrence as an important feature so far as you are concerned because I am satisfied the prospect of you re-offending is relatively small.   There is no need, for similar reasons, to protect the community from you.

[30]     While you are on the cusp of receiving a sentence of imprisonment or a community based sentence, I have on reflection, taken the view that your offending could be marked by the imposition of the maximum term of community service available to me.

[31]     Mr S   you are sentenced on each charge to a term of 400 hours community work.  You shall report to a probation officer within 72 hours to obtain information as to the work to be carried out.  The terms will be served concurrently.

[32]     Mr S  , I suspect underneath it all, you are a good man.  You got duped by your friend.  Be more careful in future.  I trust we won’t see you again in this Court.

[33]     Stand down.

P R Heath J