Wood v The Queen - [2020] NZCA 48

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA439/2019
[2020] NZCA 48

BETWEEN	KELVIN CLIVE WOOD Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2020
Court:	Clifford, Simon France and Lang JJ
Counsel:	K H Maxwell for Appellant M R L Davie and M K Thomas for Respondent
Judgment:	11 March 2020 at 12 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal against sentence is allowed.
CThe sentences of six years and three months’ imprisonment are quashed. Concurrent sentences of five years and six months’ imprisonment are substituted.
DThe minimum term of imprisonment of two years and 11 months is quashed. A minimum term of imprisonment of two years and six months is substituted.

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REASONS OF THE COURT

(Given by Lang J)

Mr Wood pleaded guilty in the District Court to representative charges of obtaining money by deception[1] and theft by a person in a special relationship.[2] On 24 July 2019, Judge Ronayne sentenced Mr Wood to six years and three months’ imprisonment on those charges.[3] He also made an order under s 86 of the Sentencing Act 2002 requiring Mr Wood to serve two years and 11 months of his sentence before being eligible to apply for parole.
[1]Crimes Act 1961, ss 240(1)(a) and 241(a).
[2]Crimes Act, ss 220 and 223(a).
[3]R v Wood [2019] NZDC 14274.
Mr Wood appeals against sentence on the basis that the Judge adopted an overall starting point that was too high and failed to give him adequate discount for mitigating factors. He contends this resulted in a sentence that was manifestly excessive. Mr Wood also contends the Judge erred in imposing a minimum term of imprisonment.
Mr Wood filed his notice of appeal nine working days out of time. The delay is short and no prejudice appears to arise. We therefore grant the necessary extension.

The offending

At the time of sentencing Mr Wood was 70 years of age. Prior to his arrest for the present offending he had been involved in the banking and finance industry his entire working life.
In or about 1999, Mr Wood commenced a foreign exchange brokerage. For the next 18 years he provided financial services to clients through two companies. One company offered retail foreign exchange services (the retail company) whilst the other accepted funds from clients for investment purposes (the investment company). The investment company began accepting funds for investment from about 2007. Two other persons, one of whom was Mr Wood’s son, were also directors of the investment company at various times but neither was involved in the day to day running of either business. Mr Wood was solely responsible for running both businesses.
Clients who deposited funds with the investment company did so after providing Mr Wood with instructions regarding the manner in which their funds were to be invested. Options for investment included placing funds on term deposit, purchasing and holding foreign currency…

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 Wood v The Queen

Details

AGLC: Wood v The Queen [2020] NZCA 48
Case: [2020] NZCA 48
Decision Date: 11 March 2020 at 12 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kelvin Clive Wood appealed against his sentence for obtaining money by deception and theft by a person in a special relationship. The appeal centred on the severity of the sentence and the appropriateness of the minimum term of imprisonment imposed by the District Court Judge. The Court of Appeal allowed the appeal against the sentence, substituting concurrent sentences of five years and six months' imprisonment and adjusting the minimum term of imprisonment.

The legal issues before the Court of Appeal were whether the District Court Judge had erred in setting the starting point for the sentence, whether the discounts for mitigating factors were adequate, and whether the minimum term of imprisonment was justified. The Appellant argued that the starting point was too high and that the Judge had not sufficiently accounted for mitigating factors. The Respondent maintained that the sentence was appropriate given the seriousness of the offending.

The Court of Appeal found that the starting point of eight years and nine months' imprisonment was justified due to the lengthy duration of the offending, the significant losses incurred by the victims, and the substantial breach of trust. However, the Court considered that the mitigating factors, including the Appellant's cooperation with authorities, remorse, and age, warranted a greater discount than that applied by the Judge. The Court substituted a sentence of five years and six months' imprisonment, reflecting a 25% discount for the Appellant's guilty pleas and a 15% discount for mitigating factors.

Regarding the minimum term of imprisonment, the Court of Appeal determined that the usual parole provisions were insufficient to achieve the sentencing purposes of deterrence, denunciation, and accountability, given the Appellant's culpability and the impact of his offending on vulnerable victims. Therefore, the Court substituted a minimum term of imprisonment of two years and six months, or slightly less than 50% of the total sentence.

Orders