Ross v R - [2019] NZCA 455

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA690/2018
[2019] NZCA 455

BETWEEN	LEONARD JOHN ROSS Appellant
AND	THE QUEEN Respondent

Hearing:	15 August 2019
Court:	Brown, Collins and Wild JJ
Counsel:	R S Reed QC and A F Pilditch for Appellant D G Johnstone and K L Bannister for Respondent
Judgment:	26 September 2019 at 9.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal out of time is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Ross appeals a sentence of 4 years and 4 months’ imprisonment imposed by Edwards J in the High Court at Auckland, following his convictions in relation to three charges of obtaining a credit facility by deception and two representative charges of using forged documents.[1]
[1]R v Ross [2018] NZHC 2552; Crimes Act 1961, ss 240(1)(b) and 257(1)(b).
Ms Reed QC and Mr Pilditch, counsel for Mr Ross, accept a sentence of imprisonment was inevitable because of the seriousness of Mr Ross’ offending and because of sentences of imprisonment are usually imposed by courts in this country in cases of serious fraud. They contend, however, that a sentence less than that imposed by Edwards J would serve the purposes and principles of the Sentencing Act 2002.
The deceptions and forgeries enabled Mr Ross and his co-offenders to gain access to a credit facility worth $41,150,000 from the ANZ Bank (ANZ). The bank did not, however, suffer any financial loss but instead earned close to $8 million from interest and fees that were charged as a result of transactions that were completed on the basis of the deceptions and forgeries.
Mr Ross provided personal guarantees to ANZ and secured the credit facility with a mortgage over his family home. Counsel for Mr Ross informed us that his assets that were secured to ANZ were valued at $14.5 million. Mr Ross told the author of the pre-sentence report that his home needed to be sold in order to meet his ongoing obligations. Thus, as a result of his convictions, Mr Ross has lost not only his reputation but also many millions of dollars worth of personal assets. In addition, Mr Ross’ wife and two of his children live in Melbourne. This increases the stress to him of being imprisoned in New Zealand.
It was submitted on behalf of Mr Ross that Edwards J focused too closely on the “headline” number and that this led to the following erroneous consequences:
(a)the starting point of 5 years and 6 months’ imprisonment was too high;
(b)inappropriate comparisons were made with another case, Serious Fraud Office v Huang;[2]
(c)insufficient consideration was given to Mr Ross’ personal circumstances and the option of a shorter period of imprisonment.
[2]Serious Fraud Office v Huang [2018] NZHC 86.
Mr Ross’ appeal was filed 12 days out of time. He has explained the circumstances that caused his delay in filing his…

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 Ross v R

Details

AGLC: Ross v R [2019] NZCA 455
Case: [2019] NZCA 455
Decision Date: 26 September 2019 at 9.00 am

CaseChat Overview and Summary

Leonard John Ross appeals against the 4 years and 4 months’ imprisonment imposed by Edwards J in the High Court at Auckland, following his convictions in relation to three charges of obtaining a credit facility by deception and two representative charges of using forged documents. The appeal was filed 12 days out of time. The key points of appeal were that courts in New Zealand have placed too much weight on the amount involved when sentencing defendants in fraud cases, Huang was not really comparable to Ross’ offending, insufficient attention was given to the fact that ANZ did not suffer financial loss in this case, and the purposes and principles of sentencing would be achieved in this case by a shorter term of imprisonment because of Ross’ previous good character, the low risk of reoffending and the effect of a sentence of imprisonment upon a person in his circumstances. The Court of Appeal found that the Taueki sentencing methodology when applied to fraud cases did not deflect sentencing Judges away from the purposes and principles of the Sentencing Act, and the sentence imposed by Edwards J was not manifestly excessive. The application for leave to appeal out of time was granted, and the appeal against sentence was dismissed.

Orders