R v Sullivan - [2014] NZHC 3201

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 3201

THE QUEEN

v

EDWARD ORAL SULLIVAN

Hearing: 12 December 2014

Counsel:

C R Carruthers QC, N F Flanagan, P W Gardyne and
E Rutherford for Crown
P H B Hall QC, M A Corlett and K H Cook for Mr Sullivan

Sentence:

12 December 2014

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Auckland Serious Fraud Office, Auckland Counsel:
C R Carruthers QC, Wellington
P H B Hall QC, Christchurch
M A Corlett, Auckland
K H Cook, Christchurch

R v SULLIVAN [2014] NZHC 3201 [12 December 2014]

Introduction

[1] Edward Oral Sullivan, at the age of 73 years, you appear before a criminal Court for sentence for the first time. Following a lengthy trial conducted between March and August 2014, you were convicted on four counts of making a false statement as a promoter1 (the prospectus charges) and one of obtaining an advantage by deception (the deception charge).2 I entered not guilty verdicts on one charge of making a false statement as a promoter, two of theft by a person in a special
relationship and one of obtaining by deception.

[2] I will now go through the information that I need to address before imposing sentence. That will take a little time Mr Sullivan, so I would invite you to sit while I do so.

[3] I want to refer specifically to one of the charges on which you were acquitted. That charge involved an allegation that you deliberately provided false information to the Crown in order to facilitate South Canterbury Finance Ltd’s acceptance into the Non-Bank Retail Deposit Takers’ Scheme in October/November 2008. That was the most serious of the charges levelled against you, and was the only basis on which the Crown could have trumpeted its initial claim, when charges were first laid against you and four others associated with South Canterbury’s business, of a
$1.58 billion fraud. It is important that I make clear at the outset that the offences on which you are being sentenced today do not involve anything like a fraud of that magnitude.

[4] The offence of making a false statement as a promoter carries a maximum term of imprisonment of 10 years on each charge. The deception charge has a maximum penalty of seven years imprisonment.

[5] All five charges are characterised by the law as “crimes involving
dishonesty”.3 As a result, a mandatory consequence of your convictions, quite apart from any sentence I impose today, is that you are disqualified, for a period of five

1      Crimes Act 1961, s 242.
2      Ibid, s 240.
3      Ibid, s 2(1), definition of “crime involving dishonesty”.

years from the date of your conviction (14 October 2014), from being a director or promoter of, or in any way (directly or indirectly) concerned in the management of a company, without the leave of this Court.4

[6] For someone who has been so active in corporate affairs over the period…

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 Sullivan

Details

AGLC: R v Sullivan [2014] NZHC 3201
Case: [2014] NZHC 3201
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the case of R v Sullivan, Edward Oral Sullivan was convicted on four counts of making a false statement as a promoter and one count of obtaining an advantage by deception. The court had to decide on the appropriate sentence, taking into account the seriousness of the offence, the culpability of the offender, and mitigating factors. The court found that the offences were serious, as they involved dishonesty and concealment of material facts from the public. However, the court also considered mitigating factors such as the offender's previous good character, his age, and the impact of the sentence on his family. The court decided to impose a sentence of 12 months of home detention and 400 hours of community work, to be served concurrently. This decision was based on the view that imprisonment was not necessary, as the offender was not a risk to the community and there was no likelihood of reoffending. The court also considered the impact of the sentence on the offender's family and his depleted assets.

In summary, the court found the offending to be serious but took into account mitigating factors such as the offender's previous good character and the impact of the sentence on his family. The court decided that home detention and community work were appropriate sentences, as imprisonment was not necessary. The court's decision reflects a balanced approach to sentencing, taking into account both the seriousness of the offence and the particular circumstances of the offender.

Orders