R v Simpson - [2013] NZHC 2524

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2012-016-241 [2013] NZHC 2524

THE QUEEN

v

COLIN MARK SIMPSON

Hearing: 26 September 2013 (Heard at Wellington)

Counsel:

G J Burston for Crown
A J S Snell for Accused

Sentence:

26 September 2013

SENTENCE OF SIMON FRANCE J

[1] This sentencing arises out of the collapse of a Gisborne based finance company Rockforte Finance. Mr Simpson was one of the three key players in the company; he has pleaded guilty to nine charges and is expected to testify at the forthcoming trial of two alleged co-offenders.

[2] The charges to which Mr Simpson has pleaded involve breaches of the Trust Deed which governed what could be done with the money people invested in the company.1 The nine charges consist first of five counts of theft by a person in a special relationship. These involved either breaches of the exposure limits contained in the Trust Deed, or impermissible loans to related parties; and on one occasion
misappropriation of a portion of an investor’s money.

1 Because of the upcoming trial, I am not setting out the detail available in the Summary of Facts.

R v SIMPSON [2013] NZHC 2524 [26 September 2013]

[3] There are then two counts of making misleading statements in a prospectus, and one count of obtaining by deception. This latter charge involves obtaining registration of the company in the Government’s Crown retail deposit guarantee scheme. It flows from the fact that the application for membership relied on accounts known to be incorrect because of the earlier breaches already mentioned. Finally, there is one representative charge of false accounting relating to incorrect accounting entries being used to disguise the true nature of certain advances.

[4] The collapse of the business caused a loss of $3.8 million which, because of the guarantee scheme, was borne by the taxpayer. The collapse of the company seems to be due primarily to the collapse of the companies which received these loans that had been wrongfully made in breach of the Trust Deed.

[5] Your role was that you were a director of the company from the outset and its day to day manager. You had extensive experience in the banking industry and were a well known and respected figure in the Gisborne community. It is accepted for sentencing that the degree to which you stood to benefit personally is very limited. On your behalf Mr Snell says it was none. Mr Burston, on the other hand, points to the lifestyle benefits that you gained from your position and a small shareholding that you held in the company. The purpose of this focus is that if people have conducted themselves in the way you have for personal gain, that is seen as an aggravating factor. In this case I accept that, within the context in which “personal gain” is used for this issue, it is not present here and so the case is not to be treated as one where you acted out…

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 Simpson

Details

AGLC: R v Simpson [2013] NZHC 2524
Case: [2013] NZHC 2524
Decision Date: 26 September 2013

CaseChat Overview and Summary

The case of R v Simpson involved the sentencing of Colin Mark Simpson, who had pleaded guilty to multiple charges related to his role as a director and manager of the collapsed Gisborne-based finance company, Rockforte Finance. The charges included breaches of the Trust Deed, theft by a person in a special relationship, making misleading statements in a prospectus, obtaining by deception, and false accounting. The collapse of Rockforte resulted in a loss of $3.8 million, which was ultimately borne by the taxpayer due to the company’s participation in the Crown retail deposit guarantee scheme.

The court had to determine an appropriate sentence that reflected the seriousness of the offences while also considering mitigating factors such as Simpson's previous good character, his remorse, and his willingness to testify against his co-offenders. The judge emphasised the need for strong deterrence against dishonest conduct by individuals in positions of trust, while also acknowledging Simpson's role in facilitating the company's operations and the absence of significant personal gain. After weighing the factors, the court decided on a sentence of 11 months of home detention and 200 hours of community work, with home detention to commence on 30 September 2013. The sentence also included conditions such as residence at a specified address, abstention from alcohol and illicit drugs, and restrictions on contact with specified persons.

In summary, the court imposed a sentence that balanced the need for deterrence and denunciation with the personal circumstances of the offender, aiming to address both the community's interest and Simpson's rehabilitative needs.

Orders