The Queen v Harrison - [2007] NZCA 297

IN THE COURT OF APPEAL OF NEW ZEALAND
CA20/07
CA21/07
[2007] NZCA 297
THE QUEEN
v
RODERICK BERNARD HARRISON
ALAN VICTOR JONES
Hearing:21 June 2007

Court:Hammond, Williams and Wild JJ
Counsel:P J Kaye for Appellants

P J Smith for Crown

Judgment:18 July 2007 at 4 pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Table of Contents

Para No
Introduction  [1]
Background  [2]
The sentencing in the High Court  [8]
Submissions for the appellants  [14]
Submissions for the Crown  [23]

THE TOTALITY PRINCIPLE AND THE NATURE OF CONCURRENT OR CUMULATIVE
sentencing  [29]
Discussion  [34]
Introduction
[1] On 12 December 2006, Courtney J in the High Court sentenced Mr Harrison and Mr Jones to a total of six and a half years imprisonment on one count of conspiracy to defraud members of the public and two counts of using a document with the intention of obtaining a pecuniary benefit (HC AK CRI-2004-004-12785). Identifying the conspiracy charge as the lead offence, the Judge imposed four and a half years imprisonment on this count. The maximum at the time for this offence was five years imprisonment (this has subsequently been raised to 10 years by s 15 of the Crimes Amendment Act 2003). One year of imprisonment was imposed on each of the counts of using a document. All sentences were imposed cumulatively. Both appellants now appeal against their sentence on the ground that it is manifestly excessive.
Background
[2]       In late 1999 the appellants began to solicit money from friends and acquaintances, with the promise of investing it into high yield overseas investments. The appellants would introduce themselves as partners, presenting themselves as experienced in the finance sector.   As the Judge put it, the impression was put across that they were “managing investments that were so large as to make your victims look and feel like very small players” (at [5]).
[3]       The investment was to occur through an “association” called the Harvest Investment Club. In reality, the Club was not an organisation at all. Rather, the appellants used it as a front to give the impression that they were dealing with, as Courtney J put it, “an elite group of wealthy investors who invested together in order to achieve returns not available to ordinary people” (at [2]). A general message of security was conveyed. Some of the investors were even told that the investment would be insured.
[4]       The appellants at first intended to establish a mechanism for making overseas investments. A company was formed in the United Kingdom and two men were hired to investigate investment opportunities. These two men were ill-equipped for the job, and no opportunities arose. Yet the appellants continued to solicit for funds. Contrary to the representations made to the investors, some of the funds were invested into New Zealand projects. None of these gave a return.
[5]       Documentation was given to the investors, usually in the form of investment certificates and confidentiality agreements (secrecy was…

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 Harrison

Details

AGLC: The Queen v Harrison [2007] NZCA 297
Case: [2007] NZCA 297
Decision Date: 18 July 2007

CaseChat Overview and Summary

The Queen appealed against the sentences of Roderick Bernard Harrison and Alan Victor Jones who were convicted of conspiracy to defraud members of the public and using a document with the intention of obtaining a pecuniary benefit. Both appellants argued that the cumulative sentencing imposed by the High Court was manifestly excessive. The Court of Appeal considered the principles of sentencing under the Sentencing Act, particularly the application of cumulative versus concurrent sentences. The Crown argued that the cumulative sentencing was appropriate given the distinct nature of the offending, while the appellants contended that the offences should have been treated as a whole. The Court of Appeal held that the High Court was correct to impose cumulative sentences and dismissed the appeal, noting that the overall sentence, while severe, was appropriate given the totality of the offending. The Court also made observations on the methodology of sentencing to guide future judges in similar cases.

Orders