| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA652/2010 [2011] NZCA 253 |
| BETWEEN MICHAEL ANDREW SWANN |
| AND THE SOLICITOR-GENERAL OF NEW ZEALAND |
| Court: Chambers, Ellen France and Randerson JJ |
| Counsel: Appellant in person |
| Judgment: 3 June 2011 at 10 a.m. (On the papers) |
JUDGMENT OF THE COURT
A The appeal is dismissed.
B There is no order for costs.
___________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant Mr Swann was found guilty after jury trial of three representative charges of defrauding the Otago District Health Board and its predecessor, Healthcare Otago. The trial Judge, Stevens J, sentenced the appellant to nine years and six months imprisonment with a minimum non-parole period of four years and six months.[1] The appellant has not appealed against his conviction or sentence.
[1] R v Swann HC Dunedin CRI-2007-012-4181, 11 March 2009.
This appeal is against a judgment of Panckhurst J issued on 1 September 2010 upon an application by the Solicitor-General under the Proceeds of Crime Act 1991 (the Act).[2] In terms of that judgment, Panckhurst J ordered the forfeiture of various items of property owned or controlled by the appellant and also directed that the appellant pay a pecuniary penalty of some $6 million. The Judge also ordered under s 29(3) of the Act that certain items of property were available to satisfy the pecuniary penalty order upon the grounds that he was satisfied those items were subject to the “effective control” of the appellant.
[2] Solicitor-General v Swann HC Dunedin CIV-2009-412-213, 1 September 2010.
Mr Swann was charged jointly with a Mr Harford. The essence of the Crown case was that Mr Swann was in charge of the IT department at the Otago District Health Board (the DHB) and its predecessor. Together with Mr Harford, Mr Swann arranged for a company named Sonnford Solutions Limited (Sonnford) to be incorporated. Mr Swann and Mr Harford were then jointly involved in the rendering of invoices by Sonnford (and a predecessor entity) to the DHB which paid the amounts of the invoices to Sonnford believing the invoices to be genuine. In fact, many of them were false. Over a six year period between 2000 and 2006, a total of 198 fraudulent invoices were submitted and paid, totalling in excess of $16.9 million.
Of the total amount of the fraudulent invoices paid to Sonnford, Mr Swann received approximately 90 per cent or $15,116,516. Once received by Sonnford, Mr Swann applied the proceeds in three principal ways:
(a)$5.3 million was paid into the trust account of Mr Swann’s solicitors, Checketts McKay.
(b)$9.16 million was paid to a company named Computer South Limited (CSL). This was a company incorporated in 1997 by the appellant’s friend, Mr Peter Ibbotson, during the period from 1996 to 1999 during which time the appellant was a bankrupt.
(c)$1.99 million was used in the direct purchase of assets, most of which were luxury motor vehicles and boats.
At least six trusts were…
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- AGLC
- Swann v Solicitor-General [2011] NZCA 253
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- [2011] NZCA 253
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