Ronald Peter Rosenberg v The Queen - [2015] NZSC 106

IN THE SUPREME COURT OF NEW ZEALAND

SC 39/2015
[2015] NZSC 106

BETWEEN	RONALD PETER ROSENBERG Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	R C Laurenson for Applicant M D Downs and Z R Hamill for Respondent
Judgment:	20 July 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Mr Rosenberg, together with a co-offender, Mr Hunt, was convicted following a Judge-alone trial before Judge Davidson on 41 counts of dishonestly using a document. Each count carried a maximum penalty of seven years’ imprisonment. On sentencing, the Judge treated the fraud as involving at least $9.75 million.[1] He assessed the culpability of the two as being similar, with any differences being insufficient to justify any distinction in sentencing.[2] Judge Davidson sentenced Mr Rosenberg to imprisonment for three years and ordered him to pay reparation of $400,000 and Mr Hunt, who was bankrupt, to imprisonment for a term of three and a half years.
[1]R v Rosenberg DC Wellington CRI-2012-085-002862, 29 May 2014 at [13].
[2]At [16].
Mr Rosenberg appealed to the Court of Appeal against the reparation component of his sentence only. That appeal was unsuccessful.[3] He now seeks leave to appeal to this Court, but again only in respect of the reparation order of $400,000. As in the Court of Appeal,[4] Mr Rosenberg says that if the Court was minded to allow his appeal against the reparation order but to increase his term of imprisonment as a consequence, he would prefer the reparation order to stand.
[3]Rosenberg v R [2015] NZCA 97.
[4]At [2].
The fraud, which was carried out between 2005 and 2008, involved the under-reporting of gas consumption by two companies, E-Gas Ltd and E-Gas 2000 Ltd (together, E-Gas). According to the Judge, it was designed to enhance the solvency of E-Gas. Before his sentencing, Mr Rosenberg settled civil proceedings brought against him, Mr Hunt and other directors and shareholders of E-Gas by the liquidators of E-Gas. In conjunction with these proceedings, the liquidators applied to set aside a general security agreement held by Multi Gas (NZ) Ltd over E-Gas, which secured indebtedness of $7.584 million. Mr Rosenberg was a director of Multi Gas and he controlled 60 per cent of its shareholding (both directly and through related interests). Mr Rosenberg and his interests did not pursue claims of $4.55 million and, in addition, he contributed $120,000 to the settlement, the effect of which was significant in that it improved the recovery by unsecured creditors of E-Gas from around 16 per cent to around 67 per cent.
The two grounds which Mr Rosenberg wishes to pursue if leave is granted are that:
(a)Judge Davidson did not take adequate account of the settlement in sentencing Mr Rosenberg.
(b)There was an unfair disparity between the sentence imposed on Mr Rosenberg and that imposed on Mr Hunt.

These are the same points as were raised before the Court of Appeal.

On the…

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 Ronald Peter Rosenberg v The Queen

Details

AGLC: Ronald Peter Rosenberg v The Queen [2015] NZSC 106
Case: [2015] NZSC 106
Decision Date: 20 July 2015

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the case of Ronald Peter Rosenberg against the Crown saw Rosenberg, together with his co-offender Mr Hunt, convicted on 41 counts of dishonestly using a document. Each count carried a maximum penalty of seven years' imprisonment. Rosenberg was sentenced to three years in prison and ordered to pay $400,000 in reparation, whereas Hunt received a sentence of three and a half years. Rosenberg appealed to the Court of Appeal against the reparation component of his sentence, but this appeal was unsuccessful. Rosenberg now seeks leave to appeal to the Supreme Court, again solely regarding the reparation order. Rosenberg argues that the sentencing judge did not sufficiently consider the settlement he entered into, and that there was an unfair disparity between his sentence and that of Hunt.

The legal issues before the court were whether the sentencing judge adequately considered the settlement Rosenberg entered into in imposing the reparation order, and whether there was a significant disparity in sentencing between Rosenberg and Hunt. Rosenberg argued that sections 10(1)(b) and 32(6) of the Sentencing Act 2002 required the sentencing judge to take into account any agreement between the offender and the victim, which was not sufficiently done in his case. Furthermore, Rosenberg argued that Hunt had also benefited from the settlement without contributing to it, and that this warranted a lesser sentence for Rosenberg. The court was required to determine whether Rosenberg's arguments warranted leave to appeal.

The court found that while there may be a principle involved in the relationship between civil settlements and reparation sentences, this was not an appropriate case to consider the issue. The court was not satisfied that Rosenberg could limit the court's discretion by indicating a preference for his current sentence if the reparation order was quashed. The court also found that there was no risk of a serious miscarriage of justice, as the sentencing judge had considered the settlement and was entitled to order reparation unless it caused undue hardship. The court concluded that Rosenberg's application for leave to appeal was dismissed.

The final orders of the court were that Rosenberg's application for leave to appeal was dismissed. The reasoning and outcome of the court were that Rosenberg's arguments did not warrant leave to appeal, as the sentencing judge had adequately considered the settlement and there was no significant disparity in sentencing between Rosenberg and Hunt. The court found that Rosenberg could not limit the court's discretion in this manner and that there was no risk of a serious miscarriage of justice. The reparation order was therefore upheld.

Orders