THE QUEEN v CHRISTOPHER JOHN CLARK [1999] NZCA 272 (23 November 1999)

IN THE court of appeal of new zealand

ca 364/99

THE QUEEN

V

CHRISTOPHER JOHN CLARK

Hearing:	23 November 1999
Coram:	Richardson P Heron J Robertson J
Appearances:	J M Jelas for Crown P H B Hall for Appellant
Judgment:	23 November 1999

judgment of the court delivered by HERON J

[1] This is an appeal against a sentence of four years imprisonment following pleas of guilty after depositions and before trial, imposed in the District Court on 13 August 1999, for 19 charges of obtaining money by false pretences and two charges of inducing by false pretences, and one charge of using a re-produced document with intent to defraud.

[2] Over a period between February 1997 and July 1998 the appellant, described as a self-employed businessman, with previous experience in the clothing industry, sought out a number of persons to invest money in clothing and other related transactions with him.The modus operandi was that he would meet an investor, indicating that he had received a confirmed order for clothing and in order to satisfy the order he required capital.He claimed by buying the material with cash, this enabled him to make a substantial profit from which he could repay his investor the capital plus interest.On many occasions a very high rate of return was promised to the persons approached by the appellant.

[3] By way of reassurance as to the validity of the transactions, the appellant would give the person approached a post-dated personal cheque drawn on his bank account.When the appellant repaid the investment the cheques would be returned.The cheques presumably were an alternative form for repayment and some reassurance to the person approached that the investment was a reality.

[4] On occasions the appellant would be requested to produce the alleged order for the articles of clothing.In such cases he created a false document being the order for clothing with the use of a fax machine, and presented it as a genuine document.His false pretences extended to claims that he needed capital for an advertising campaign in respect of Australian television, which required urgent pre-payment, and also that he had orders for other items, again which he needed to satisfy by paying cash, thereby earning a large return, which would be shared with the investor.The appellant created the appearance of a business structure, employing staff, renting an office and providing motor vehicles and incurring business expenses.Later investor's money was used to repay early investors and as a result his reputation as a successful entrepreneur able to produce good returns widened the net of people that he was able to attract.According to the police the total amount defrauded was $386,081, none of which has been recovered.Some of the amounts invested by individuals have been relatively small, and with others more substantial, a number in excess of $50,000.

[5] A variety of impacts on the victims of this fraudulent conduct has been described which needs no further elaboration in this court.

[6] The Judge said the appellant's conduct had resulted in devastating effects on other people.The appellant, it seems, had made nothing out of the transactions personally, and although he maintained an intention to repay, there was no likelihood of that becoming the reality.Notwithstanding S.6 of the Criminal Justice Act 1985, the Judge considered a sentence of imprisonment was inevitable.The Judge recorded counsel's acknowledgement of the need for imprisonment and recorded counsels submission that the range should be between two to three and a half to four years.The Judge said that the number of charges over an extended period made a sentence of two years or less inappropriate, and therefore no question of a suspended sentence arose.

[7] The appellant is aged 38 years, separated with two dependant children.His record is unexceptional and for a number of years he worked in his father's menswear shop, gaining the knowledge which led to a number of the false transactions, the subject of the present charges.The appellant has no relevant history and his conduct has been ascribed by the probation officer as due to greed.

[8] On appeal the principal submission by the appellant was that the sentence of four years imprisonment did not distinguish the appellant's breach of trust from those more serious cases of breaches of trust committed by solicitors or accountants of monies held in trust.Further the sentencing Judge failed to indicate where the starting point was in sentencing, and thus there was no discernible discount for factors such as the appellant's plea of guilty, his co-operation with the police and his otherwise good record.

[9] The appellant further says that the extent of the offending does not place it in the upper end of the range which counsel put between two and four years The various points made by counsel for the appellant include:

[a] That the offending was over relatively short periods and the losses not as large as some involved in other cases, and the appellant always wanted to repay from another business said to be legitimate.

[b] There was no allowance for the co-operation the appellant gave to the police and for his plea of guilty.The Judge indicated that it was a fairly late plea of guilty.Before us counsel submitted having regard to the period of time between the original informations and the final counts in the indictment, it was appropriate to at least go to the stage of depositions before pleading guilty.

[c] The funds were not dissipated on an extravagant lifestyle and that the appellant had considerable remorse for what he has done.In respect of some of the victims it was claimed that the impact was not as serious as in some cases and that most of them were not facing ruin.Some of them were young and were able to adjust to the set back that they obviously had received and that offers to pay 50% interest on a short-term loan was something where the victims had to accept some responsibility when they made their decision to advance money to the appellant.

[10] Ms Jelas on behalf of the Crown said that the aggravating features required a significant term of imprisonment.The blatant lies told, the production of false documents in order to obtain money, a reasonably lengthy period of offending spread over 18 months, the breach of trust and some 17 complainants.The amount involved of $386,000 was in any terms substantial. Ms Jelas urged upon us that it was a series of deliberate and well planned frauds which involved forgery with the appellant providing incentives to ensure its continuation.We have not overlooked Ms Jelas careful review of the cases and her submissions that the sentence overall was within the Judge's discretion, that he had regard to all relevant factors and it could not be said that the sentence was excessive.

[11] We think a starting point of four to five years was appropriate in this case after balancing the aggravating and mitigating factors, but for reasons which have been repeatedly made clear, there had to be a significant discount for the pleas of guilty and co-operation with the authorities.Having regard to such cases as R v Ngata, CA 71/97, 22 June 1997, R V Gore, CA 407/94, 1 May 1995, R v Murphy, CA 85/98, 22 June 1998 and the mix of factors leading to sentences of four years, three years and five and a half years respectively, a sentence of three years was the appropriate sentence to impose in this case having regard to the scope of the offending and the plea of guilty saving the inevitable expense of trial.See also cases with similar facts R v Harris, CA 344/98, 1 December 1998, R v Cauldwell, CA 223/89, 31 May 1989.

[12] For the reasons given we allow the appeal, quash the sentence of fours years imprisonment and impose a sentence of three years imprisonment.

Solicitors:

Crown Law Office, Wellington for Crown

P H B Hall, Christchurch for Appellant