R v Scutts - [2015] NZHC 1617

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-004-9588 [2015] NZHC 1617

THE QUEEN

v

PETER JOHN SCUTTS

Hearing: 10 July 2015

Appearances:

R Reed and R R Parlane for Crown
J R Billington QC and A J Steel for Prisoner

Sentence:

10 July 2015

SENTENCING REMARKS OF M PETERS J

Counsel: J R Billington QC, Auckland
R Reed, Auckland
A J Steel, Auckland

Copy for: Serious Fraud Office, Auckland

R v SCUTTS [2015] NZHC 1617 [10 July 2015]

[1] Mr Scutts, you appear for sentence today having been convicted at a trial before me on:1

(a) one charge of receiving a secret reward for procuring a contract, being an offence under s 8(1) Secret Commissions Act 1910 (“Secret Commissions Act”);2 and

(b)16 charges of dishonestly using a document to obtain a pecuniary advantage, being offences under s 228(b) Crimes Act 1961 (“Crimes Act”).3

[2] The maximum penalty on the first charge is a fine of $1,000 or two years’ imprisonment. Each charge under the Crimes Act carries a maximum term of seven years’ imprisonment.

[3] I am grateful to counsel for their excellent submissions and, as I mentioned, I have taken it from Mr Billington QC’s materials that you acknowledge your guilt in this matter.

Facts

[4] The facts of the offending are set out my judgment of 21 May 2015.4 The salient points for today’s purposes are as follows.

[5] In March 2011, you advised the New Zealand Wine Company (“NZWC”) to enter into a contract to supply wine to Liquor Marketing Group Australia (“LMG”). At that time you were a consultant to NZWC and a couple of months later – in June
2011 or thereabouts – you became the CEO.

[6] At the time you gave that advice to NZWC you had an agreement in place with LMG, the gist of which was that they would pay you AUS$1 for every case of
NZWC wine that they sold to their retail customers.

1      R v Scutts [2015] NZHC 1108.
2      Secret Commission Act 1910, s 8.
3      Crimes Act 1961, s 228(b).
4      R v Scutts, above n 1.

[7] From May 2011, you submitted 16 invoices to LMG to obtain the AUS$1 per case, the last one being rendered in November 2012. LMG paid you NZ$64,000 over this period.

[8] Through Mr Billington, you say that the deal that you negotiated for NZWC with LMG was a good one, that it played a significant part in keeping the company afloat in difficult circumstances and that it cannot be said that NZWC suffered financial loss as a result of your offending. One consequence of this is that the Court cannot make a reparation order.5

[9] For myself, I do not consider that the lack of a quantifiable loss to NZWC helps you much. LMG might have paid more but for the payments to you – I appreciate this is speculation. Regardless, NZWC recruited you and paid you well because of your expertise and abilities.…

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 Scutts

Details

AGLC: R v Scutts [2015] NZHC 1617
Case: [2015] NZHC 1617
Decision Date: 10 July 2015

CaseChat Overview and Summary

The case of R v Scutts was heard in the High Court of New Zealand, Auckland Registry. The defendant, Peter John Scutts, was convicted on one charge of receiving a secret reward for procuring a contract under the Secret Commissions Act 1910 and 16 charges of dishonestly using a document to obtain a pecuniary advantage under the Crimes Act 1961. The court was required to decide on the appropriate starting point for sentencing, whether an uplift was necessary for the Crimes Act charges, and if a less restrictive sentence than imprisonment was appropriate. The starting point was set at 18 months' imprisonment on the Secret Commissions Act charge, with no uplift for the Crimes Act charges. A modest reduction of two months was applied, resulting in a sentence of 16 months' imprisonment. However, the court decided on a less restrictive sentence of eight months' home detention, to be served concurrently.

The court considered various precedent cases to determine the appropriate starting point for the Secret Commissions Act charge, taking into account factors such as the seniority of the offender, the length of time over which the offending took place, whether the offender acted in concert with another employee of the organisation, and the sum involved. The court also examined personal factors such as the defendant's previous good character and insight into the offending. The decision to impose a sentence of home detention was based on the Sentencing Act 2002, which requires the court to consider whether the purposes of sentencing can be met by something less than imprisonment. In this case, the court was satisfied that the purposes of sentencing would be met by a sentence of home detention.

Orders