The Queen v Holt [2006] NZCA 105; [2006] DCR 669 (30 May 2006)

Last Updated: 21 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA59/06CA78/06THE QUEEN

v

HENRY PETER HOLT

Hearing: 16 March 2006

Court: Chambers, Ronald Young and Allan JJ

Counsel: P F Gorringe for Appellant
E M Thomas for Respondent

Judgment: 30 May 2006     

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The appellant must report to the Hamilton Central Police Station between noon and 3 pm on 2 June 2006 to commence his sentence of imprisonment.
   

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REASONS

(Given by Allan J)

Introduction

[1] On 2 September 2005 Mr Holt was found guilty by a jury in the District Court at Hamilton on two counts alleging offences under the Insolvency Act 1967 (the Act). At all material times he was an undischarged bankrupt.
[2] Count 1 alleged that without the consent of the Assignee or the Court, he took part in the management or control of a business, namely that of Windsor Industries Ltd. Mr Holt appeals against conviction on that count.
[3] Count 2 related to alleged buying and selling of motor vehicles as a business, again without the consent of the Assignee or the Court. There is no appeal against conviction on count 2.
[4] On 20 December 2005 the appellant was sentenced to nine months imprisonment on count 1 and concurrently to three months imprisonment on count 2. Leave was granted to apply for home detention. He appeals against that sentence.

Procedural history

[5] The appeal against conviction rests on an argument that the conviction on count 1 could not stand because it was founded upon an information laid in the District Court which, prior to committal for trial, had been the subject of an amendment by a District Court Judge made without jurisdiction. The amended charge was claimed to be a nullity and incapable of supporting the charge. It is therefore necessary to recount the procedural history of the case in the District Court.
[6] On 17 November 2003, the Assignee filed in the District Court at Hamilton an information laid summarily and charging that:

Henry Peter Holt (within the space of two years last past, namely) between the 7th day of May 2002 and the 4th day of March 2003 at Hamilton and elsewhere in New Zealand did commit an offence against Section 128A(1)(b) of the Insolvency Act 1967 in that being a person adjudged bankrupt failed without reasonable cause to comply with the provisions of Section 62 of the Insolvency Act 1967, by being employed by a relative of his or by being employed by a company, namely Windsor Industries Limited, being a company managed or controlled by a relative of his; without the consent of the Assignee nor (sic) the Court.

[7] On 21 May 2004 the appellant entered a plea of not guilty to that charge.
[8] Subsequently it emerged that the informant would be unable to prove the commission of the offence charged because Windsor Industries Ltd was not managed or controlled by a relative of the appellant, nor was the appellant employed by a relative. The informant had relied upon the relationship between the appellant and one Angela Wilson, the sole director of Windsor Industries Ltd. She is the daughter of a woman who had been the appellant’s long-time partner, but the appellant and his partner had never married.
[9] Faced with that difficulty, the Crown Solicitor, representing the informant, applied orally to a District Court Judge for the charge to be amended. The application was opposed by counsel for the appellant. It was dealt with in the course of a busy status hearings list. Judge Maclean heard the application. Understandably, given the circumstances, he was able to give it only limited consideration. His minute, released on 23 August 2004, but plainly recording what he had said on 20 August, relevantly reads:

[1] Mr Holt appears with Mr Hamblett in the Status Hearing Court – there really being no other appropriate venue to deal with the matter of contested amendment. I have heard some argument orally on it now, conscious that there are a lot of people waiting for status hearings today and we have got to (sic) a late start. I will just give some brief reasons why I will grant the amendment sought, noting that it is still at an early stage of matters.

[2] An indication has been given that, at this stage, if the amendments are granted there will be an election of trial by jury which will enable, as the Crown point out, plenty of time through pre-depositions, depositions and then formulation of an indictment to prepare for the trial, which will now have to be by jury, so I confirm the amendment is granted. I am not persuaded that there is any real prejudice to the accused person.

[3] Mr Hamblett has raised the question of time limits and whether this is perhaps some sort of device to belatedly up the ante, so to speak, but from the brief argument I have heard, I am satisfied that it is simply a case of readjusting the allegations to more properly fit the facts as alleged by the Crown. That will be subject to test before (a) a depositions hearing and (b) if necessary, a trial. To avoid any particular problems, the amendment will be then for the date frame of those matters to be 18 November 2001 to 30 June 2003, and the other amendments that have just been discussed will be granted.

[10] The amended charge read as follows:

Henry Peter Holt (within the space of two years last past, namely) between the 7th day of May 2002 and the 4th day of March 2003 at Hamilton and elsewhere in New Zealand did commit an offence against Section 128A(1)(b) of the Insolvency Act 1967 in that being a person adjudged bankrupt failed without reasonable cause to comply with the provisions of Section 62 of the Insolvency Act 1967, by directly or indirectly taking part in the management or control of a business namely Windsor Industries Ltd without the consent of the Assignee or the Court.

[11] The appellant elected trial by jury. At a preliminary hearing held on 4 November 2004, counsel for the appellant conceded that there was sufficient evidence to put the appellant on trial. He was accordingly committed for trial.
[12] The Crown Solicitor at Hamilton subsequently filed an indictment in the District Court at Hamilton. The appellant’s trial before a Judge and jury in the District Court started on 29 August 2005, and concluded on 2 September 2005. The indictment upon which he was arraigned comprised two counts:

THE CROWN SOLICITOR AT HAMILTON CHARGES THAT:

1. HENRY PETER HOLT between the 1st day of July 2001 and the 30th day of June 2003 at Hamilton and elsewhere in New Zealand being a person adjudged bankrupt and before his discharge from bankruptcy failed without reasonable cause to comply with the provisions of Section 62 of the Insolvency Act 1967 in that he directly or indirectly entered into, carried on or took part in the management or control of a business namely Windsor Industries Limited without the consent of the assignee or the Court.
2. HENRY PETER HOLT between the 1st day of July 2001 and the 30th day of June 2003 at Hamilton or elsewhere in New Zealand being a person adjudged bankrupt and before his discharge from bankruptcy failed without reasonable cause to comply with the provisions of Section 62 of the Insolvency Act 1967 by directly or indirectly entering into, carrying on or taking part in the management or control of a business namely being involved with the buying and selling of vehicles as a business, without the consent of the assignee or the Court.

[13] A side-note to the indictment referred to s 128A(1)(a) of the Act. Section 128A reads:

128A Offences by undischarged bankrupts in relation to management of companies

(1) Every person who is adjudged bankrupt and who—

(a) Acts as a director of a company; or

(b) Fails without reasonable cause to comply with section 62 of this Act,—

commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 2 years or on summary conviction to imprisonment for a term not exceeding [12 months] or to a fine not exceeding [$5,000].

(2) Notwithstanding anything in section 14 of the Summary Proceedings Act 1957, an information in respect of an offence against paragraph (a) or paragraph (b) of subsection (1) of this section may be laid at any time within 2 years after the date of the offence.
[14] The reference in the side-note to subs (1)(a) was erroneous: the side-note should have referred to s 128A(1)(b). But nothing turns on that, as the side-note is not part of the charge and is for guidance only. The appellant well recognised that the two counts he faced alleged offending against s 128A(1)(b).
[15] Section 62 provides:

62 Prohibition of bankrupt entering business

(1) An undischarged bankrupt must not, without the consent of the Assignee or the Court either directly or indirectly,—

(a) enter into, carry on, or take part in the management or control of, any business:

(b) be employed by a relative of the bankrupt or by any company, trust, trustee, or incorporated society, that is managed or controlled by a relative of the bankrupt.

(2) Nothing in this section restricts section 151 of the Companies Act 1993.

[16] The effect of the amendment made on 20 August 2004 had been to charge the appellant with failing without reasonable cause to comply with s 62(1)(a), rather than s 62(1)(b), which was the focus of the information as originally filed.
[17] At trial, the Crown called evidence of the role played by the appellant in Windsor Industries Ltd. There was evidence suggesting that he was the sole representative of that company in its dealings with others. The company’s activities included the construction of two houses, and other transactions including the company’s entry into a commercial lease. The evidence established the appellant’s involvement as the company’s representative between June 2001 and April 2002.
[18] At the conclusion of the defence case on 1 September 2005, counsel for the appellant made an oral application to Judge Spear, the trial Judge, for the discharge of the appellant on count 1, upon the ground that the evidence did not disclose any involvement by the appellant in the management and control of Windsor Industries Ltd within a period of two years prior to the date of the amendment of the information on 20 August 2004. Counsel submitted that the Crown was unable to rely on evidence earlier than 20 August 2002, by virtue of s 128A(2). The Judge ruled against that application on an interim basis, reserving leave for counsel to apply to the Court again, following the verdicts of the jury. In so ruling, the Judge took into account the entitlement of the Crown to include in the indictment any charge which might properly be founded on the depositions (noting that the trial jurisdiction of the Court was separate from its summary jurisdiction), and that there had been no challenge earlier at the preliminary hearing, or during the trial.
[19] Following conviction, counsel for the appellant made a written application to the Court on 7 October 2005 for an order discharging the appellant pursuant to s 347 of the Crimes Act 1961 on count 1. The trial Judge heard that application on 14 October 2005, but rejected it upon the same primary ground as was expressed during the trial itself, namely the entitlement of the Crown Solicitor to include in the indictment any count which was properly founded on the depositions. The Judge did however accept that the Crown was not entitled to rely on evidence relating to events prior to 17 November 2001, on the basis that the critical date for limitation purposes was the date of the filing of the original information (17 November 2003), and not the date upon which the information had been amended.

The appellant’s submissions

[20] Mr Gorringe for the appellant submitted that the information which ultimately led to count 1 of the indictment ought not to have been amended on 20 August 2004, that the amendment was a nullity, and that “... any subsequent Court processes are void”. He developed his argument by submitting that:

1. Where it applies, the statutory time limit to be found in s 128A(2) of the Act is paramount and is to be displaced only by the clearest language.
2. The wide power to amend an information contained within s 43 of the Summary Proceedings Act 1957, does not include the power to amend an information by substituting one offence for another where the substituted offence relies on substantially different facts, if the limitation period for the charge contained in the amended information has expired at the time of the amendment. That outcome is dictated not by considerations of possible prejudice to a defendant, but simply by reason of a statutory limitation on the Court’s jurisdiction. The motive for the amendment is irrelevant.

100. Section 345 of the Crimes Act 1961 does not assist the Crown. In exercising his discretion to lay such charges in an indictment as may be supported by the evidence contained in the depositions, a Crown Solicitor is confined to admissible evidence. Evidence given in respect of charges which are a nullity is not admissible evidence. Alternatively, it would be an abuse of process for a Crown Solicitor to present an indictment containing a charge based on such evidence.

Crown submissions

[21] The Crown’s position, as outlined by Mr Thomas, is that the amendment to the information was not so substantial as to have been outside the discretion of the learned District Court Judge, notwithstanding that the statutory time limit for filing the information containing the amended charge had expired. Further, Mr Thomas submitted, the Crown Solicitor was entitled to present an indictment based upon evidence contained in depositions unless that would give rise to an abuse of process. There has been no such abuse in the present case.

Discussion

[22] Section 43(1) of the Summary Proceedings Act confers on the District Court a wide power to amend an information. Section 43(2) empowers the Court to substitute one offence for another. That power extends to the substitution of an indictable offence for a summary offence and vice versa.
[23] There is no doubt that an amendment falling short of the substitution of a new charge may relevantly be made outside the limitation period. So, for example, in Morrison v Curtis [1953] NZHC 80; [1954] NZLR 159, an amendment to an information charging a seaman with desertion of his ship was held not to have charged a new offence by reason of the amendment of the name of the ship and of the port at which the desertion originally occurred. As was pointed out by Turner J at 163:

The alleged transaction, though differently described at the end of the proceedings, is the same one, for no one suggests that there have been two or more occasions where a ship has been allegedly deserted by the defendant, and that it is now sought to abandon one of these occasions and substitute another. On the contrary, it is clear that it is alleged that there has been one only of such occasions, and that this occasion has been wrongly described in the information and is now to be correctly described. The transaction alleged, then, is the same one, but it is now sought merely to amend the surrounding circumstances by which this one transaction is to be described and identified. So long as the defendant is not prejudiced at the trial by being confronted with another transaction distinct from the one which he thought was going to be proved, it is clear that the Court will have power to amend, and the amendment should be allowed.

[24] Similarly, in Jackson v Police HC AK M632/82 16 July 1982, the substitution of the name of one police officer for another in an information alleging obstruction of the police was held not to infringe the limitation period of six months prescribed by s 14 of the Summary Proceedings Act. Chilwell J observed (at 18) that:

...[T]here is no suggestion that the appellants obstructed a constable otherwise than during the incident in question. The offence is wilfully obstructing a constable in the execution of his duty. The amendment merely identifies the constable. The information for the offence was laid within time.

[25] Mr Gorringe relied heavily on the judgment of Blanchard J in Cunningham v Police HC TAU AP36/93 15 September 1993. There the appellant had originally been charged under s 229A(b) of the Crimes Act 1961 with using, or attempting to use, a document for the purpose of obtaining a pecuniary advantage. It was a case of an alleged fraud on the Social Welfare Department. No time limit applied to the laying of those charges, and so it was not of significance that the informations were not sworn and filed until 7 December 1992, well over a year after the facts of the case had become known to officers of the Department.
[26] The charges were heard by a District Court Judge who held that the Crown had not made out the essential element of deceit required on a prosecution under s 229A(b), and that the charges laid under that section must fail. However, without having heard any submissions on the point, he went on to hold that the evidence disclosed offences under s 127 of the Social Security Act of making statements to the Department, knowing them to be false in a material particular for the purpose of receiving a benefit under the Act. The learned District Court Judge therefore amended the informations so that they charged offences under s 127 instead, and proceeded to convict the defendant on the amended charges.
[27] Section 128(1) of the Social Security Act 1964 provided a limitation period of 12 months:

... after the facts alleged in the information have been brought to the knowledge of any officer concerned in the administration of this Act.

[28] As at the date of the District Court Judge’s decision, that limitation period had long since expired insofar as the replacement charges were concerned.
[29] Blanchard J held that the Judge had no jurisdiction to substitute entirely new offences in those circumstances and that the convictions must be quashed. He referred to both Morrison v Curtis and Jackson v Police and noted that, as in those authorities, the transactions in respect of which the amended informations were laid were undoubtedly the same transactions as were alleged in the informations laid under the Crimes Act. He went on to say (at 7):

But that is only one part of the equation. It is equally clear that the same offence is not still being charged. The point of the amendment made by the learned District Court Judge was to substitute different (albeit lesser) offences the ingredients of which are different.

[30] Blanchard J concluded his judgment by pointing out:

The crucial fact is that an entirely new offence was being charged by virtue of the amendment and that this new offence, under s 128, could not have been the subject of a new information at that time. It was not merely a case of tidying up by amendment a detail relating to an earlier information concerning this same offence. Nor does it seem to me to be of any significance that the new charges were of a lesser offence. Parliament has seen fit to enact a time limit. The new charges are under s 128 and s 43 cannot be used where the time limit in s 129 would thereby be circumvented.

[31] Cunningham is an illustration of the principle that the Court will not permit the amendment procedure to circumvent unfairly the operation of limitation clauses in the criminal jurisdiction.
[32] In a different context, Smellie J in Diveco Ltd v Auckland District Court [2002] NZAR 927 held that the District Court had no inherent power to reinstate charges, earlier withdrawn by consent, after the expiration of the limitation period.
[33] The question of whether an amendment in a given case carries limitation consequences will sometimes give rise to difficulties. It will often be a matter of degree. The extent to which the amended charge reflects the same “transaction” will be relevant. The interests of justice will be paramount. As always, those interests entail recognition of the rights both of the defendant and the community represented by the Crown.
[34] Mr Thomas submitted that the relevant principles can properly be summarised as follows:

1. Certainty in terms of a decision to prosecute is required so that time limits for commencement of prosecutions should be strictly complied with;
2. Once prosecutions have been commenced there may be valid reasons why it is in the interests of justice for charges to be amended to reflect differences in the case from that as originally perceived;

100. The interests of the community in the effective investigation and prosecution of offences need to be balanced against the interests of a defendant in being certain, as far as is possible, of the jeopardy which he or she faces.

[35] That approach reflects principles developed in recent English authorities from which we have derived a measure of assistance, and to which we now turn. In R v Scunthorpe Justices, Ex Parte McPhee & Gallagher (1998) 162 JP 635, the applicants sought judicial review of the refusal by Justices to allow an application to amend an information by substituting for a charge of robbery charges of common assault and theft. The parties were all teenage girls. The applicants had allegedly assaulted the complainant and stolen her training shoes. They were originally charged with robbery. Subsequently, the Crown Prosecution Service accepted that it was appropriate that the applicants plead guilty to alternative lesser charges of theft and common assault, and that the robbery charge be withdrawn. All of that occurred within the statutory limitation period.
[36] When the new charges were put to the applicants before Justices in the Scunthorpe Youth Court, they both entered pleas of guilty to theft, but the Justices’ Clerk objected to the putting of the charge of common assault because it was a summary offence and the six month limitation period had very recently expired. The applicants sought judicial review of the refusal by the Justices to allow the application to amend the information to substitute for the charge of robbery the charge of common assault, as well as the charge of theft.
[37] Dyson J, who delivered the judgment of the Court, reviewed certain English authorities from which he derived the following principles at [14]:

1. The purpose of the six-month time limit imposed by section 127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission.
2. Where an information has been laid within the six-month period it can be amended after the expiry of that period.
3. An information can be amended after the expiry of the six-month period, even to allege a different offence or different offences provided that:
   1. The different offence or offences allege the ‘same misdoing’ as the original offence; and
   2. The amendment can be made in the interests of justice.

[38] Dyson J further explained the expression “same misdoing” as meaning that the new offence should arise out of the same (or substantially the same) facts, as gave rise to the original offence.
[39] He directed the Justices in the following terms at [17]:

Once they are satisfied that the amended offence or offences arise out of the same or substantially the same facts as the original offence, the justices must go on to consider whether it is in the interests of justice to allow the amendment. In exercising their discretion the justices should pay particular regard to the interests of the defendant. If an amendment will result in a defendant facing a significantly more serious charge, that should weigh heavily – perhaps conclusively – against allowing the amendment after the six month time limit has expired.

[40] Dyson J concluded his judgment by holding that the Justices had applied the wrong test, in that they had expressly declined to consider whether the common assault and theft charges were based on the same facts, or substantially the same facts, as the robbery. Instead they asked themselves whether the offences were different offences. In the result, the applications for judicial review were granted, and the refusal to allow the amendments quashed.
[41] Just a week later, an identically constituted Court had occasion to consider a similar case in R v Newcastle Upon Tyne Magistrates’ Court, Ex Parte Poundstretcher Ltd [1998] EWHC Admin 251. Again Dyson J delivered the judgment of the Court. This case dealt with the alleged failure of the applicant to comply with certain regulations relating to the safety requirements of felt pens. Having been persuaded by the defence that the charge had been laid under the wrong set of regulations, the prosecution applied to the Justices to amend the charge to allege an entirely new regulatory offence. The Justices held that since the particulars of the offence were identical and the amendment only technical, it would not be unjust to allow the amendment.
[42] The applicant applied for judicial review of that decision. The Court reaffirmed the principles very recently outlined in R v Scunthorpe Justices and noted both that the evidence relied upon in support of the amended information was the same as that which would have been relied on in support of the information in its original form, and that the only real prejudice suffered by the applicant by reason of the amendment was that it had been deprived of a limitation defence.
[43] The Court held that in dealing with the application for amendment, the Justices must weigh two competing aspects of the public interest at [26]:

There is a public interest in ensuring that prosecuting authorities commence proceedings within the period prescribed by statute. There is also a public interest in seeing that those who contravene important statutory provisions such as safety regulations are prosecuted. Where, as in the present case, there is a conflict between these interests, the justices have to decide which should prevail.

[44] In the result, the Court held that the Justices had exercised their discretion in accordance with proper principles and the application was accordingly dismissed.
[45] A useful further illustration of the application of these principles is provided by R v Everest (2005) 169 JP 345, in which Richards J heard an appeal by way of case stated from a decision of the West Kent Justices. That case arose out of the lighting of a bonfire by the respondent near a road while he was working in his garden. The smoke from the bonfire was said to have blown across the road, obscuring visibility and causing an accident. The respondent was originally charged with an offence of “ ... without lawful authority or excuse ... lights any fire on or over a highway which consists of or comprises a carriageway ...”. At the end of the Crown case the prosecution sought to amend the charge to one of lighting a fire on any land not forming part of a highway which consists of or comprises a carriageway, in consequence of which a user of a highway was injured.
[46] This second offence, laid under a completely different section of the relevant legislation, carried a special defence, whereunder an accused might avoid criminal liability if he could show on reasonable grounds that it was unlikely that users of the highway would be injured, interrupted or endangered by smoke from the fire, and that he did all he reasonably could to prevent users of the highway from being so injured, interrupted or endangered, or had a reasonable excuse for not doing so.
[47] Richards J held that the Justices had correctly applied the test laid down in R v Scunthorpe Justices and that their decision to refuse an amendment was well within the limits of the reasonable exercise of their discretion. Relevant factors taken into account were the “frankly lamentable” failure of the appellant authority to prosecute the right offence from the outset and the failure to review the file and to seek an amendment at an earlier stage.
[48] There were further telling considerations. The amendment went well beyond the simple curing of a technical defect. It involved a different offence with a new statutory defence not available under the offence originally charged, albeit relating to the same alleged misdoing. So the respondent would be exposed to a different offence, with the burden of proving the statutory defence where he had already established a complete defence to the offence originally charged. There was an element of unfairness in requiring an unrepresented respondent to cope with that situation. It would require a rehearing of the prosecution evidence, so that witnesses could be cross-examined in the light of the new offence and the new statutory defence, and the respondent would have to prepare his own defence with the burden newly resting upon him. Richards J accordingly upheld the decision of the Justices to refuse the amendment.
[49] There is little material difference between the principles articulated in R v Scunthorpe Justices and the approach discernible from the New Zealand authorities to which we have referred. Prosecuting authorities are expected to comply with limitation periods but circumstances may arise after expiration of a limitation period which dictate the need for an amendment.
[50] As in R v Newcastle Upon Tyne Magistrates’ Court, Ex Parte Poundstretcher Ltd the Court must bear in mind the need to balance on the one hand the public interest in the effective investigation and prosecution of offences, and on the other, the public interest in ensuring that prosecuting authorities commence proceedings within the period prescribed by statute and in safeguarding a defendant against continuing uncertainty in the course of a prosecution. The fact that a proposed amendment may involve the introduction of new or different legal elements into a prosecution will not necessarily preclude the grant of an amendment. While that will be an important factor in the overall inquiry, it will not be determinative. The outcome of an application for amendment will depend upon a balancing of the various relevant factors in a given case.
[51] Against that background we turn to the facts of this case. As originally laid, the information charged an offence under s 128A of the Act. So does the amended charge. In each case the allegation is that the appellant committed an offence by failing to comply with the terms of s 62 of the Act.
[52] The original charge asserted a breach of the appellant’s obligation not to take employment with a relative or with a company controlled by a relative without the consent of the Assignee or the Court. The amended charge alleges that the appellant directly or indirectly entered into, carried on, or took part in, the management or control of the business, namely Windsor Industries Ltd, without the consent of the Assignee or the Court.
[53] The business of Windsor Industries Ltd, and the role played by the appellant in that business, is the central feature of both the original charge and the amended charge. There are, of course, differences. Under the original charge the Crown had to prove the fact of the appellant’s employment either by a relative or by a company controlled by a relative. That is not a feature of the amended charge. Instead the Crown must prove that the appellant took part in the management or control of the company’s business. But in each case it was the same company and the same business. The evidence relevant to the appellant’s trial on the amended charge was much the same as would have been called on the original charge, and in each instance the charge was founded upon s 128A(1)(b) of the Act.
[54] The original and amended charge each relate to broadly the same factual matrix so that “the transaction,” to use a term utilised in certain New Zealand authorities, was the same in each case. The amendment cannot be said to be of such character as to amount to a circumvention of the limitation period prescribed by s 128A(2). We are satisfied that it was in the interests of justice to grant leave to amend in this case.
[55] We heard argument from Mr Gorringe with respect to the dates of the alleged offending. As filed, the information alleged offending between 7 May 2002 and 4 March 2003. The amendment altered the dates to between 18 November 2001 and 30 June 2003, so enlarging the period over which the alleged offending occurred. Mr Gorringe told the Court that the evidence at trial was to the effect that the appellant’s association with Windsor Industries Ltd commenced in September 2001 and concluded in April 2002. He claimed the significance was that the latter date was more than two years prior to the date of the amendment on 20 August 2004. That is however a matter of no jurisdictional significance, because irrespective of the amendment, the information was filed on 17 November 2003, and time ceased to run against the Crown from that date.
[56] In light of our view that the amendment to the information was properly made, it is necessary to refer only briefly to the Crown’s alternative argument, which was that where there is an admittedly valid committal on one charge, the Crown Solicitor may nevertheless present an indictment pursuant to s 345 of the Crimes Act 1961 containing counts reflective of charges upon which committal was refused, or indeed of any offence which the depositions are thought to disclose, even if no relevant information has been filed in the District Court: R v Carberry [1992] 2 NZLR 184 (CA); Thomson v Attorney General [1996] 1 NZLR 21 (CA).
[57] Mr Thomas submitted that the Crown Solicitor was entitled in the present case to include count 1 in the indictment because it was founded on deposition evidence. While accepting that the Crown Solicitor’s discretion must not be used to circumvent a statutory limitation provision where to do so might constitute an abuse of process, he submitted that in this case no abuse of process can be said to have arisen because:

1. There was no suggestion that the Crown Solicitor had acted otherwise than in good faith;
2. It was in the interests of justice that the prosecution be brought against the appellant;

100. There was little prejudice, if any, to the appellant in the granting of the original amendment, because it did not substantially alter the case that he had to meet;

4. The original prosecution was properly commenced in good faith.

[58] There may be a flaw in Mr Thomas’s argument. It lies in his assumption that the evidence given at the preliminary hearing would have disclosed the offence subsequently charged as count 1. If the amendment to the information had been refused, there would have been no evidence on the amended charge. The Crown would not have pursued the charge relating to Windsor Industries Ltd at all, because it was unable to prove that the appellant was employed by a relative, or a company controlled by a relative.
[59] So it is unlikely that the Crown would have been in possession of evidence which triggered the Crown Solicitor’s discretion. However it is unnecessary to say any more about that in the light of our conclusions as to the validity of the amendment.
[60] For the foregoing reasons the appeal against conviction is dismissed.

Appeal against sentence

[61] The appellant was sentenced to nine months imprisonment on count 1, and three months imprisonment on count 2, the sentences to run concurrently. Leave was granted to apply for home detention. The Judge expressed the view that the sentence must demonstrate the Court’s support for the scheme of bankruptcy legislation, designed as it is for the protection of the public. He found that the appellant, who was bankrupt for the second time, was well aware of his obligations under the Act, and peremptorily dismissed the suggestion that the appellant’s offending was administrative in character and stemmed simply from his overlooking the need to obtain the prior consent of the Assignee. The Judge held that the appellant was well aware of his obligations and that he “... acted with the cynical design to circumvent the restrictions imposed by the bankruptcy”.
[62] The appellant’s culpability was compounded in the Judge’s view by the fact that, having been warned by the Assignee about his role in Windsor Industries Ltd, the appellant then turned to another form of business activity, that of buying and selling cars. Those activities formed the basis of count 2.
[63] Although no loss appears to have been suffered by members of the public as the result of the appellant’s car trading activities, that was not the case in respect of the Windsor Industries business. Losses claimed by a number of creditors appear to amount to something of the order of $55,400.
[64] The evidence at trial was to the effect that Mr Holt was, to all intents and purposes, the alter ego of the company. That being so, the Judge rejected the submission that these were civil debts that ought not to be the subject of an order for reparation. The Judge was satisfied that these losses were the direct result of the appellant’s offending, and it was therefore appropriate to consider reparation.
[65] There were adjournments in the sentencing process to enable Mr Holt to organise appropriate reparation, but his ultimate reparation proposals fell well short of what the Judge regarded as sufficient to qualify for consideration for sentencing purposes. The Judge observed that he had expected Mr Holt both to raise a significant proportion of the losses, and to have paid them by the time he was sentenced. Instead, the appellant offered $11,450 by one payment of $5000 to be made at the end of January 2006, and thereafter at the rate of $100 per week. The $5000 was intended to be sourced by a loan from the appellant’s mother.
[66] The Judge regarded that offer as wholly inadequate in the circumstances, and a mere promise as unsatisfactory in itself, bearing in mind that the appellant was bankrupt for the second time. Accordingly, the Judge sentenced the appellant on the basis that he was not in a position to pay any reparation. That approach is readily understandable where the circumstances are such that a completed payment of reparation might be expected by the time of sentencing. A mere offer of reparation will normally be accorded little weight for sentencing purposes: R v Singh (2003) 20 CRNZ 158 (CA).
[67] The Judge took into account a letter from the appellant in which he expressed his remorse in eloquent terms, but the Judge believed it was necessary to balance that expressed remorse against the appellant’s explanation for his offending, which the Judge found to be “somewhat ingenuous”.
[68] In concluding that a sentence of imprisonment was required, the Judge said this:

This sentence must operate as a general deterrent to those who are adjudicated bankrupt from considering that they would be able to ignore the restrictions placed on them by their bankruptcy and then plead personal circumstances to justify a relatively light penalty. The sentence must operate in a way that does its best to encourage those people who are adjudicated bankrupt to comply with the restrictions placed on them. It must be understood that it is not worth the risk to breach those restrictions.

[69] The Judge was perfectly correct to emphasise the need for deterrence. Mr Holt had been bankrupt on a previous occasion, and there was evidence that he was well aware of his obligations under the Act. On the evidence, Windsor Industries Ltd was little more than a shell company utilised by Mr Holt for the purpose of carrying on what was to all intents and purposes his own business. The losses suffered by the company would never have arisen had Mr Holt adhered to his obligations. Moreover, the appellant’s abandonment of Windsor Industries Ltd and his subsequent commencement of a car dealing business following a warning from the Assignee constitutes a significant aggravating factor.
[70] Although the appellant is a first offender, and the pre-sentence report proposed a sentence of community work, we are satisfied that in all the circumstances a custodial sentence was called for. There is no tariff for s 128A offending. For comparison purposes we were referred to three decisions of the High Court: R v Pocock HC TAU T65/98 17 June 1999; R v Harrod HC AK CRI 2003-404-31531 27 April 2004, and R v Hastie HC DUN T5483/03 17 March 2005. In those cases sentences of between four and nine months imprisonment were imposed. However, the totality of the offending varied from case to case, and only the most general guidance can be derived from those authorities.
[71] In the present case we are satisfied that the sentence imposed, while stern, was within the range available to the sentencing Judge who expressly reduced the sentence he would otherwise have imposed by three months in recognition of the appellant’s age (65) and indifferent health. This was premeditated, flagrant and somewhat cynical offending which called for a firm sentencing response. The appeal against sentence must accordingly be dismissed.

Disposition

[72] The appeal is dismissed. The appellant has been on bail pending disposition of this appeal. He must now commence his sentence of imprisonment.

Solicitors
Till Henderson King, Hamilton, for Appellant
Crown Law Office, Wellington