Rath v The King - [2024] NZHC 325

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-257

[2024] NZHC 325

BETWEEN
COLIN DAVID RATH

Appellant

AND

THE KING

Respondent

Hearing: 22 February 2024

Appearances:

C M Ruane for Appellant

W J S Mohammed for Respondent

Judgment:

27 February 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 February 2024 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

RATH v R [2024] NZHC 325 [27 February 2024]

Introduction

[1] Colin Rath pleaded guilty to obtaining by deception (over $1000),1 and using a forged document (x2).2 He was sentenced to nine months’ imprisonment by Judge Duggan on 22 November 2023.3 This sentence was cumulative on a sentence of imprisonment imposed by Judge Hix on 8 March 2023. Mr Rath appeals on the basis the sentence imposed by Judge Duggan was manifestly excessive.

Facts

[2] Mr Rath is an American citizen who emigrated to New Zealand with his family. He purchased a vineyard business in North Canterbury. However, the business was not successful and he got into financial difficulty. This led to him filing false GST returns and supplying false documents in support of those returns. He also filed 13 false documents to Immigration New Zealand in order to gain residency in New Zealand. This offending occurred between October 2018 and February 2021.

[3] On 8 March 2023 he was sentenced to three years and seven months’ imprisonment on those charges.4

[4] In December 2015, the appellant listed his sailing yacht on Trade Me. On 3 March 2016, he obtained a loan from the American based creditor, St Liberty LLC for USD 300,000, with the collateral for this loan being the vessel. In May 2016, the victim, a New Zealand citizen, contacted the appellant with a view to purchasing the vessel. The appellant initially informed the victim that the sale price was $780,000.

[5] The victim arranged for a sea test of the vessel and in November 2016, arranged to examine the vessel out of the water which revealed several significant issues, meaning she was not prepared to pay the now $600,000 price the appellant was asking for it.

1      Crimes Act 1961, ss 240(1)(a) and 241(a) – maximum penalty of seven years’ imprisonment.
2      Section 257(1)(a) – maximum penalty of 10 years’ imprisonment.
3      R v Rath [2023] NZDC 25971.
4      Inland Revenue Department v Rath [2023] NZDC 4367.

[6] In early September 2018, the appellant informed the victim that the vessel was now on sale for AUD 420,000. He also stated that the vessel was listed with an Australian broker, Mr Renouf of DBY Boat Sales.

[7] In early October 2018, the victim travelled to Australia to carry out another sea test. The same flaws were identified. She negotiated a purchase price of AUD 380,000. A sale and purchase agreement was signed on 2 October 2018. There was an addendum to the agreement whereby the victim would pay a…

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 Rath v The King

Details

AGLC: Rath v The King [2024] NZHC 325
Case: [2024] NZHC 325
Decision Date: 27 February 2024

CaseChat Overview and Summary

Colin Rath appeals his sentence for obtaining by deception, using a forged document, and obtaining by deception for the purpose of immigration. Rath was sentenced to nine months' imprisonment and a $5,000 emotional harm payment by Judge Duggan. He argues the sentence was manifestly excessive. The court considered whether the sentence imposed by Judge Duggan was within the appropriate range and justified by relevant sentencing principles.

The court examined whether the 12-month uplift was within range, considering other cases involving fraud and deception. The court found the starting point of 12 months was within range given the total loss of over $200,000 and the elaborate deception over several years. The court also considered the discounts for guilty plea, good character, and remorse. While the appellant argued for a higher discount for his early guilty pleas, the court found the 20 per cent discount appropriate given the strong prosecution case. The court found it was within the judge's discretion to apply a lesser discount for good character and remorse, given the appellant's previous dishonesty offending and lack of tangible acceptance of responsibility.

The court concluded the sentence imposed by Judge Duggan was within range and did not contain an error that warranted a different sentence. The appeal was dismissed.

The court made no further orders. The sentence of nine months' imprisonment and $5,000 emotional harm payment stands.

Orders