R v Stirling - [2007] NZCA 106

IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/06
[2007] NZCA 106
THE QUEEN
v
ROBERT WILLIAM STIRLING
Hearing:14 March 2007

Court:Robertson, Baragwanath and Venning JJ
Counsel:J P Temm for Appellant

J M Jelas for Crown

Judgment:29 March 2007 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1]       On 5 May 2006 the appellant was sentenced to imprisonment for five years three months having pleaded guilty to 15 charges of using a document with intent to obtain a pecuniary advantage and two charges of uttering a forged document. Heath J also imposed a minimum non-parole period of three years three months. The appellant appeals against sentence.
Background
[2]       Between 2000 and 2004 the appellant, together with a number of others, was involved in a sophisticated and organised fraud in the Hamilton and Bay of Plenty areas. A co-accused, Mr McKelvy, was responsible for the Hamilton area. The appellant took primary responsibility for transactions within the Bay of Plenty area. On occasion the appellant and Mr McKelvy worked together. On other occasions they sought personal benefit at each other’s expense.
[3]       Three types of fraud were employed. The first was described by the Judge as “price hydraulic fraud”. The appellant would identify land likely to be sold by mortgagee sale. He would then enter an agreement with the owner to buy it at a price in the vicinity of the market value. The appellant would then enter a back to back agreement to on-sell the land at a higher price to a related third party. The on-sale would be supported by an unrealistic valuation obtained from a compliant valuer. The appellant would then borrow from a lending institution to settle the purchase. The effect of the scheme was to induce a lending institution to lend more money than it would otherwise have been prepared to advance.
[4]       The second type of fraudulent activity was described as “equity fraud”. The appellant would identify property owners in financial difficulty and in danger of losing their homes. The owners would be induced to transfer their assets to a trust. The trustees would then seek a loan from a financial institution but at a greater amount than that required to settle the obligations under the mortgage. The home owner was referred to a compliant solicitor who would arrange for the owners to sign authorities in favour of the solicitor for disbursement of funds at the solicitor’s direction. A variation of the scheme involved the preparation of a fictitious sale and purchase agreement. Money would then be drawn down from the financier and paid to the solicitor. After paying the debt the surplus funds were disbursed to the appellant and his associates rather than the home owners. In reality the owner became no more than a tenant in their own home, their equity in the property having been extinguished by the transaction. Within a short period of time the banks and…

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 Stirling

Details

AGLC: R v Stirling [2007] NZCA 106
Case: [2007] NZCA 106
Decision Date: 29 March 2007

CaseChat Overview and Summary

The case of R v Stirling concerns the appellant's appeal against his sentence. The appellant was convicted of using a document with intent to obtain a pecuniary advantage and uttering a forged document. He was sentenced to five years and three months imprisonment, with a minimum non-parole period of three years and three months. The appellant argued that the sentence was excessive and that the judge should have taken into account a sum of $155,000 paid by his partner as reparation. The Crown argued that the sentence was within the judge's discretion and that there was no evidence that the payment was made on behalf of the appellant. The court found that the judge did not err in not taking the payment into account as it was not made on behalf of the appellant. The court also found that the starting point of eight years was appropriate given the sophisticated and organised nature of the offending, the vulnerability of the victims, and the appellant's greed. The court further found that there were no parity issues with the sentences of the co-offenders and that the minimum non-parole period was appropriate given the circumstances of the offending.

The Court of Appeal dismissed the appellant's appeal against sentence. The court found that the judge did not err in not taking into account the sum of $155,000 paid by the appellant's partner as reparation. The court also found that the starting point of eight years was appropriate given the nature of the offending and that there were no parity issues with the sentences of the co-offenders. Finally, the court found that the minimum non-parole period was appropriate given the circumstances of the offending. The appellant's appeal against sentence is dismissed.

Orders