The Queen v Armitage - [2007] NZCA 270

IN THE COURT OF APPEAL OF NEW ZEALAND
CA64/07
[2007] NZCA 270
THE QUEEN
v
ALLAN CLIFF ARMITAGE
Hearing:26 June 2007

Court:William Young P, Randerson and Panckhurst JJ
Counsel:P J Kaye for Appellant

M A Woolford for Crown

Judgment:2 July 2007 at 11 am

JUDGMENT OF THE COURT

A THE APPEAL IS ALLOWED.
BThe sentence is reduced from 15 months’ imprisonment to six months’ imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] Between April 2001 and October 2003, the appellant committed a number of frauds associated with his business activities as a property developer and investor. These offences involved:
(a)Mortgage fraud committed between 1 April 2001 and 6 December 2002 consisting of false representations to financiers as to the purchase prices of the properties he was acquiring, his employment circumstances. This fraud resulted in 21 charges of using a document with intent to defraud contrary to what was then s 229A of the Crimes Act 1961. He pleaded guilty at a relatively early stage and, on 1 December 2005, was sentenced by Judge B A Morris to a total of two years and six months’ imprisonment.
(b)Tax evasion relating to a single GST return in which he fraudulently did not return the sale of a particular property. For this offence he was sentenced by Judge A-M J Bouchier on 2 June 2006 to 15 months’ imprisonment which was cumulative on the earlier sentence imposed upon him by Judge Morris.

[2]       Mr Armitage now appeals against the sentence imposed on him by Judge Bouchier.
Factual background
[3]       Although the sentence imposed on the s 229A charges is not in issue, it is necessary to say something briefly about the mortgage fraud offending.
[4]       The appellant managed to obtain funding in excess of $12 million as a result of his frauds. Fortunately, for both the appellant and the lending institutions, rising property prices meant that the losses actually suffered were confined to $90,000 for which the appellant made full repayment prior to sentencing. The offending was, nonetheless, significant as it involved exposing lending institutions to risks associated with their advances which they had not agreed to run. As well, for 14 months out of the 20 month period encompassed by the offending, the appellant was an undischarged bankrupt and was trading through a number of friends.
[5]       The tax evasion charge related to the sale of a motel property on 11 August 2003. The appellant knew full well that he was required to account for output tax on this transaction but the next GST return which was lodged did not record the sale. The resulting deficiency of $141,875 has not been made good.
[6]       The appellant is now 60. With the exception of some trivial offending (for which he appeared in 1962 and 1964) he has no previous convictions. He suffers from claustrophobia.
The sentencing remarks of Judge Bouchier
[7]       Having referred to the factual background and certain authorities, the Judge went on to say:
[11]     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 The Queen v Armitage

Details

AGLC: The Queen v Armitage [2007] NZCA 270
Case: [2007] NZCA 270
Decision Date: 2 July 2007

CaseChat Overview and Summary

The case of The Queen v Armitage involved Allan Cliff Armitage, who was convicted of mortgage fraud and tax evasion. The mortgage fraud took place between April 2001 and December 2002, resulting in 21 charges of using a document with intent to defraud under section 229A of the Crimes Act 1961. The tax evasion charge related to the fraudulent non-disclosure of a property sale in a GST return. Armitage had previously been sentenced for the mortgage fraud offences and received a cumulative sentence of 15 months for the tax evasion charge. Armitage appealed against the 15-month sentence imposed for the tax evasion charge.

The legal issue in this case was whether the sentence imposed by Judge Bouchier for the tax evasion charge was appropriate. The appeal focused on whether the sentence was excessive given the totality of Armitage's offending and the principle of totality under section 85(2) of the Sentencing Act 2002. The appeal court considered whether Armitage's sentence should be reduced to align with what would have been imposed had all his offending been dealt with simultaneously.

The Court of Appeal found that the sentence imposed for the tax evasion charge was excessive. The court noted that Armitage had committed significant frauds but had repaid the losses and had no prior convictions. The Court of Appeal considered that the starting point for sentencing should not exceed four years, with a discount for the pleas and Armitage's good character of at least 25 percent. The court held that the sentence should be reduced from 15 months to six months to align with what would have likely been imposed if all offending had been dealt with together.

The Court of Appeal allowed the appeal and reduced Armitage's sentence from 15 months to six months for the tax evasion charge. This decision ensured that Armitage's total sentence was brought into line with what would have been imposed had all his offending been dealt with at the same time.

Orders