R v Urwin - [2012] NZHC 715

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-004-029179 [2012] NZHC 715

THE QUEEN

v

GARY KENNETH URWIN

Hearing: 17 April 2012

Appearances: B Dickey and T Molloy for Crown
D Reece and Mr Clark for Prisoner

Judgment: 17 April 2012

SENTENCING NOTES OF ANDREWS J

Solicitor: Meredith Connell, PO Box 2213, Shortland Street, Auckland 1140 brian.dickey@meredithconnell.co.nz tom.molloy@meredithconnell.co.nz

Counsel: David Reece, PO Box 4208, Shortland Street, Auckland 1140
davidreece@nzcriminallawyer.co.nz

R V URWIN HC AK CRI 2008-004-029179 [17 April 2012]

Charges

[1] Mr Urwin, you appear for sentencing today having pleaded guilty to ten charges laid under s 58 of the Securities Act 1978 (Counts 9 to 18 in the indictment), of distributing offer documents which contained untrue statements. The maximum penalty on each of those charges is imprisonment for five years, or a fine of up to
$300,000.

Relevant Facts

[2] It is necessary to set out the relevant facts, I do so not in extensive detail but I

do have to go through them. You were a non-executive director of Bridgecorp from

23 May 2003 and of Bridgecorp Investments Ltd from 3 September 2003, until the time that the Bridgecorp companies were put into receivership in July 2007. During that period you were Chair of the Credit Committee until January 2007, and you were a member of the Audit Committee.

[3] The charges to which you have pleaded guilty are in respect of untrue statements contained in prospectuses and investment statements issued by Bridgecorp and Bridgecorp Investments dated 21 December 2006 and distributed up until 6 July 2007, and extension certificates to the prospectuses dated 30 March
2007. The untrue statements were in four categories.

“Barcroft Holdings Ltd was not a related party.”

[4] The first was that the company Barcroft Holdings Limited was not a related party. A loan of approximately $76.7 million to Barcroft Holdings was represented in the offer documents as not being related party lending. In a note to the offer documents, it was stated that Barcroft was an unrelated party, and in the list of related parties that was in that document Barcroft was not referred to. In fact, Barcroft Holdings was a related party to Bridgecorp and Bridgecorp Investments, and the loan should have been disclosed as such. The failure to disclose the loan as related party lending significantly reduced Bridgecorp’s reported exposure to related parties, and of course significantly reduced the extent of overall exposure.

[5] I need to set out the circumstances relating to this in a little more detail. During the relevant period you had a controlling interest in Urwin Fernandez Pty Ltd, which was an Australian-based consultancy firm. You were also a director of the company Urwin Fernandez (NZ) Ltd, which held 18 million shares (which was about 25 per cent) in the ultimate parent company of Bridgecorp, Bridgecorp Holdings Ltd. Accordingly, interests associated with you held a substantial shareholding in Bridgecorp.

[6] In December 2003 Bridgecorp entered into a joint venture with Urwin Fernandez to source…

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 Urwin

Details

AGLC: R v Urwin [2012] NZHC 715
Case: [2012] NZHC 715
Decision Date: 17 April 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen v Gary Kenneth Urwin dealt with the sentencing of Mr Urwin, a non-executive director of Bridgecorp, who had pleaded guilty to charges under the Securities Act 1978 for distributing offer documents containing untrue statements. The maximum penalty for each charge was five years imprisonment or a fine of up to $300,000. The court had to decide on the appropriate starting point for sentencing and whether imprisonment was the appropriate sentence or if a less restrictive sentence would be suitable.

After considering the aggravating and mitigating factors, the court concluded that the starting point for Mr Urwin's sentencing should be the same as that for Mr Davidson, which was three years and three months imprisonment. The court took into account the gravity of the offending, the personal factors, and the timing of the guilty plea. The court then adjusted the starting point to two years three months imprisonment, taking into account the mitigating factors such as good character, remorse, and assistance provided to the authorities. After considering the guilty plea discount, the final adjusted sentence was two years imprisonment.

The court decided that a sentence of home detention would not be appropriate for Mr Urwin's offending as it would not adequately address the sentencing principles of denunciation and deterrence, particularly given the severity of the offending. The court concluded that the purposes of sentencing would not be met by a sentence which is less restrictive than imprisonment. Therefore, the court imposed a sentence of two years imprisonment for each charge, to be served concurrently.

Orders