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The Queen v Armitage [2007] NZCA 270 (2 July 2007)

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The Queen v Armitage [2007] NZCA 270 (2 July 2007)

Last Updated: 10 July 2007

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.

B The 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 starting point, taking into account the aggravating features, is between two to two and a half years. The reasoning for that is that a deterrent sentence is called for, the premeditation involved, the amount involved is reasonably significant and the amount obtained is broadly comparable in the general sense to the Vishdani case where Judge Lockhart agreed with a starting point of two to two and a half years. The offender’s features are then looked at, the aggravating factors, and of course Mr Armitage has a history of convictions for fraudulent charges and is currently serving a sentence of imprisonment.
[12] The mitigating features – he pleaded guilty after depositions and that is acknowledged that that is an early stage, and discounts are accordingly warranted. His personal circumstances, suffering from claustrophobia and that this being particularly bad at the time of this offending and the Crown have also enclosed with their submissions a letter from a psychiatrist of the Phobic Trust which I have also received and read.
...
[19] I take the starting point here as being two years imprisonment giving a credit for the early Guilty plea I come out to a sentence of one year and three months imprisonment which is cumulative on the current term. As it is a sentence which he is then able to apply for home detention, I have considered both the Crown and the defence submissions as far as that is concerned and I grant leave to apply for home detention.

Evaluation

[8] The offending against the Commissioner of Inland Revenue was different in kind from the mortgage fraud offending for which the appellant was sentenced by Judge Morris. It also occurred later. So we accept that a cumulative sentence was appropriate under s 84 of the Sentencing Act 2002. However, we are also satisfied that the totality principle applied and that the appellant ought not to have been treated more harshly than would have been the case had all offending been dealt with together: s 85(2). Noticeably absent from the sentencing remarks of the learned Judge is any reference to the totality principle. Indeed the structure of the sentencing exercise (a starting point of two years and a discount for the plea of nine months) suggests that she did not apply it.
[9] Looking at the case in the round, the appellant has received a total sentence of three years and nine months’ imprisonment for offending where the total uncompensated deficiency was a little over $140,000. In each case he pleaded guilty. He has no prior convictions of any relevance. Had all offending been dealt with at the same time, we cannot see how a starting point much in excess of four years could have been justified and a discount for the pleas and the appellant’s good character of at least 25 percent would have been appropriate.
[10] In those circumstances we take the view that the appeal must be allowed to bring the total sentence imposed into line with what would have likely happened had the appellant been sentenced for all offending at the same time.

Result

[11] The appeal is allowed. The sentence is reduced from 15 months’ imprisonment to six months’ imprisonment.

Solicitors:
Crown Law Office, Wellington

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[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.

[8]	The offending against the Commissioner of Inland Revenue was different in kind from the mortgage fraud offending for which the appellant was sentenced by Judge Morris. It also occurred later. So we accept that a cumulative sentence was appropriate under s 84 of the Sentencing Act 2002. However, we are also satisfied that the totality principle applied and that the appellant ought not to have been treated more harshly than would have been the case had all offending been dealt with together: s 85(2). Noticeably absent from the sentencing remarks of the learned Judge is any reference to the totality principle. Indeed the structure of the sentencing exercise (a starting point of two years and a discount for the plea of nine months) suggests that she did not apply it.
[9]	Looking at the case in the round, the appellant has received a total sentence of three years and nine months’ imprisonment for offending where the total uncompensated deficiency was a little over $140,000. In each case he pleaded guilty. He has no prior convictions of any relevance. Had all offending been dealt with at the same time, we cannot see how a starting point much in excess of four years could have been justified and a discount for the pleas and the appellant’s good character of at least 25 percent would have been appropriate.
[10]	In those circumstances we take the view that the appeal must be allowed to bring the total sentence imposed into line with what would have likely happened had the appellant been sentenced for all offending at the same time.