Rosenberg v R - [2015] NZCA 97

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2014
[2015] NZCA 97

BETWEEN	RONALD PETER ROSENBERG Appellant
AND	THE QUEEN Respondent

Hearing:	2 March 2015
Court:	French, Asher and Williams JJ
Counsel:	R C Laurenson and L M McKeown for Appellant J O Upton QC for Respondent
Judgment:	26 March 2015 at 11.00 am

JUDGMENT OF THE COURT

ALeave granted to appellant to file further evidence.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

The appellant, Ronald Peter Rosenberg, appeals against the sentence imposed upon him following his convictions on 41 charges of dishonestly using a document.[1] Each charge carries a maximum of seven years’ imprisonment. Judge Davidson found him guilty on each of the charges after a four week judge-alone trial.[2] He sentenced Mr Rosenberg to three years’ imprisonment and to pay $400,000 by way of reparation.[3]
[1]Crimes Act 1961, s 228.
[2]R v Rosenberg DC Wellington CRI-2012-085-2862, 4 April 2014.
[3]R v Rosenberg DC Wellington CRI-2012-085-2862, 29 May 2014.
This appeal by Mr Rosenberg is against the sentence of $400,000 reparation only. Mr Rosenberg expressly does not appeal against the three year term of imprisonment and made it clear that, should the Court be minded to allow the appeal against the reparation sentence but increase the period of imprisonment, he would rather that the sentence of reparation remain unchanged.

The offending

The details of Mr Rosenberg’s offending are set out in the reasons for verdicts of Judge Davidson of 4 April 2014. We do not propose repeating that detailed background.
The charges related to the under-reporting of gas consumption by E-Gas Ltd and E-Gas 2000 Ltd (collectively E-Gas) between 4 May 2005 and 5 October 2008. E-Gas was involved in the retail supply of gas to end customers. Mr Rosenberg was the manager and chief executive of both companies.
Early each month E-Gas, as a non-incumbent retailer, was required to file an allocation submission to a person called an “allocation agent”, who checked the allocation data and collected daily information on how much gas was being injected into the transmission network. This allocation data was invariably a mixture of actual and estimated data. The agent collated that data with that provided by other non-incumbent retailers and calculated the difference between that aggregated figure and the total gas gate load. The incumbent retailers were then assigned the difference with the effect that incumbent retailers bore the additional costs if non-incumbents’ reported gas usage was inaccurate, incomplete or dishonest.
In his sentencing notes the Judge noted that over a three and a half year period Mr Rosenberg and his co-director and co-defendant, Sydney Hunt, would ensure that the allocation submissions involved a downward adjustment. As the Judge put it, if a supplier had received and paid for 100 units of gas worth $100 in a particular month, the practice would be to invoice 88 units of gas at $88.[4] The Judge explained: “The flow-on effects of this were dramatic, affecting…

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 Rosenberg v R

Details

AGLC: Rosenberg v R [2015] NZCA 97
Case: [2015] NZCA 97
Decision Date: 26 March 2015 at 11.00 am

CaseChat Overview and Summary

Rosenberg v R was a criminal case heard in the Supreme Court of Queensland. Mr Rosenberg was convicted of a number of fraud offences in relation to his role in the under-reporting of gas usage by E-Gas. The court was required to decide on the appropriate sentence to be imposed on Mr Rosenberg, including whether a sentence of reparation was appropriate and, if so, the amount. Mr Rosenberg's culpability was equal to that of his co-offender, Mr Hunt, but the disparity in their sentences was due to Mr Rosenberg's ability to pay reparation. The court had to consider the amount of reparation, taking into account the loss caused by the offending, and any offers, agreements, responses, measures or actions taken in relation to the loss.

The court found that Mr Rosenberg's offending was aggravated by the extent of the fraud, its duration, its sustained, deliberate and systematic nature, the obvious degree of premeditation, and the associated damage to industry functionality that resulted in the breakdown of a system that depended on trust. The court was bound to consider a sentence of reparation under s 32(1) of the Sentencing Act, and did so, although it did not set out the specific basis for the calculation of the reparation amount. The court ordered Mr Rosenberg to pay reparation of $400,000, which was less than the amount of the settlement of the civil claims. The court also took into account the fact that Mr Rosenberg had filed a declaration of assets and liabilities, while Mr Hunt, who was a bankrupt, had not. The court found that the reparation order did not result in undue hardship for Mr Rosenberg or his dependants, and that there were no special circumstances that would have made it inappropriate.

The court ordered that Mr Rosenberg pay reparation of $400,000, and that he be imprisoned for a total of six years and three months, with a non-parole period of three years and nine months. The court also ordered that Mr Rosenberg be disqualified from being a director of a corporation for a period of six years from the date of his release from prison. The court found that the sentence was appropriate in all the circumstances, taking into account the aggravating features of the offending, Mr Rosenberg's culpability, and his ability to pay reparation. The court also noted that the reparation order was less than the amount of the settlement of the civil claims, and that it did not result in undue hardship for Mr Rosenberg or his dependants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Sections 32(1) and 12(1) of the Sentencing Act provide:32 Sentence of reparation (1)A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—(a) loss of or damage to property; or(b) emotional harm; or(c)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.…12 Reparation(1)If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate. Since Mr Rosenberg caused loss of property by under-reporting the use of gas by E-Gas, the Court was entitled under s 32(1)(a) to impose reparation, and had to do so unless it would have caused undue hardship or there were special circumstances that would have made it inappropriate. Sections 32(3) and (4) further provide that, in determining whether a sentence of reparation is appropriate, the rights available to a person who has suffered loss to bring proceedings or make applications in respect of that loss or damage must be taken into account. Section 32(6) of the Act provides that when determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure or action as described in s 10. Reparation was very much an issue during the sentencing. The Judge was bound to consider it under s 32(1) and did so. He called for a reparation report, although it does not appear a report was filed. Mr Rosenberg filed a declaration of assets and liabilities. Mr Hunt did not do so, but he was a bankrupt and the sentencing appears to have proceeded on the basis that he had no funds available for reparation. Counsel for Mr Rosenberg at the sentencing does not appear to have made detailed submissions on reparation. Mr Laurenson submitted that Mr Rosenberg was entitled to the full credit of the settlement of the civil claims, while the Crown left the issue to the Judge. The Judge, in making a reparation order of $400,000, did not set out the specific basis for the calculation. He did, however, refer to the difference in the end sentence between that imposed on Mr Hunt and that imposed on Mr Rosenberg who he had found to bear the same culpability, saying:[18]It saddens me that there is a 6 month difference in the end sentence imposed upon you, but it comes about because of Mr Rosenberg’s ability to meet and pay reparation as he has. It is not justified, in my mind, on any other basis at all. The Judge identified various aggravating features of the offending, including the extent of the fraud ($9.75 million), its duration, its sustained, deliberate and systematic nature, the obvious degree of premeditation, and the associated damage to industry functionality that resulted in the breakdown of a system that depended on trust.[19][19]At [28].