Ludlow v R [2012] NZCA 549 (27 November 2012)

Last Updated: 29 November 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA186/2012 [2012] NZCA 549

BETWEEN TREVOR ALLAN LUDLOW Appellant

AND THE QUEEN Respondent

Hearing: 19 November 2012

Court: White, Miller and Asher JJ

Counsel: Appellant in person (by videolink) N Williams for Respondent

Judgment: 27 November 2012 at 12.30 pm

JUDGMENT OF THE COURT

A The application for bail pending appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] The appellant Mr Ludlow seeks bail pending the hearing of his appeal.
[2] He has been convicted of six counts of theft in a special relationship under s 220 of the Crimes Act 1961 and one count of false accounting under s 260 of the same Act. He had entered a plea of guilty to one count of theft and was then convicted of the remaining six counts at a Judge alone trial in the District Court at Auckland before Judge Bouchier.[1] The maximum penalty for the theft charges was seven years’ imprisonment on each count, and on the single false accounting charge 10 years’ imprisonment. At a sentencing hearing on 20 October 2011, Judge Bouchier sentenced Mr Ludlow to a period of five years and seven months’ imprisonment.[2]
[3] There were then other charges laid to which he pleaded guilty. In a further sentencing hearing in the High Court at Auckland on 26 January 2012 Toogood J sentenced Mr Ludlow on one count of approving a registered prospectus containing untrue statements and seven counts under s 51 of the Financial Reporting Act 1993 for authorising the making of a statement that was false or misleading.[3]
[4] Toogood J was aware of the earlier sentencing by Judge Bouchier and took into account the totality principle. He sentenced Mr Ludlow to terms of imprisonment of nine months to be served concurrently with each other but cumulatively upon the period of imprisonment already imposed. The total effective period of imprisonment was therefore six years and four months’ imprisonment.
[5] Mr Ludlow seeks bail pending appeal against his convictions and sentence in the District Court and his sentence in the High Court.
[6] On 28 September 2012 Arnold J dealt with Mr Ludlow’s initial application for bail on the papers.[4] That application was made under s 393(2) of the Crimes Act. Mr Ludlow indicated he would argue that the sentence was manifestly excessive. It was noted that there was no indication of the basis for this argument. He also argued that there were inadequate facilities in prison for him to prepare for his appeal, but this argument was not accepted. Bail was declined.
[7] Mr Ludlow has now applied to the Court for bail. He has filed three volumes of further material and set out detailed reasons for his application. He has abandoned the ground that there are inadequate facilities in prison for him to prepare his appeal and focussed on other issues.
[8] Section 393(3) of the Crimes Act provides:

393 Certain powers exercisable by one Judge

...

(3) If on an application by an appellant a Judge refuses to exercise a power referred to in subsection (1) or subsection (2) in favour of the appellant, the appellant may have the application determined by the court concerned.

[9] The reference in s 393(3) to the appellant having the application “determined” by this Court if a Judge refuses an application suggests that the Court approach the bail application on the basis that it is a stand-alone application for determination. There is no reference in the section to a consideration of the single Judge’s earlier decision. Had it been intended that the Court should undertake a review of the single Judge’s decision, or conduct an appeal, it could be expected that the words appeal or review would have been used. They are not.
[10] We approach the application afresh.[5] In this application there are new grounds, and new material put forward.

The application

[11] Mr Ludlow referred to the background circumstances and the various rulings in the lead-up to the sentencing. These included his applications for legal aid, and the proposal that amicus curiae be appointed for his trial. He was critical of the conviction decision, comparing it to other conviction decisions where there were greater degrees of detail in the judgments. He made specific references to aspects of the evidence in the District Court trial. He compared the sentence imposed on him to other sentences imposed on directors who had failed to meet their duties. He submitted that none of the risks referred to in s 8 of the Bail Act 2000 applied to him.

Discussion

[12] Section 14 of the Bail Act sets out the relevant test. If a person is in custody following a conviction and is appealing the conviction or sentence, or both, the Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.[6] The onus is on the appellant to show cause why bail should be granted.[7] When considering the interests of justice under subs (1) the Court may, instead of the considerations in s 8, take into account the following considerations:[8]

(a) the apparent strength of the grounds of appeal:

(b) the length of the sentence that has been imposed on the appellant:

(c) the likely length of time that will pass before the appeal is heard:

(d) the personal circumstances of the appellant and the appellant's immediate family:

(e) any other consideration that the court considers relevant.

[13] In terms of (a) there is nothing concerning the entry of the convictions or the sentences imposed that persuades us that bail should be granted. We bear in mind that Mr Ludlow was convicted of offending involving significant dishonesty and that the total sum taken by Mr Ludlow from National Finance 2000 Ltd was $3,712,814 and that the unrecovered amount was $2,883,000 after liquidation. He has stated in a signed statement filed in the High Court in relation to the sentencing of another director:

When I was sentenced in the High Court by Justice Toogood, he correctly observed that I had covered up the fraudulent use of investor funds. I confirm that I did this and concealed the true position, not only from the investors, trustee and auditors, but also from Mr Banbrook. This included related party loans made to myself, and my previous partner, Carole Braithwaite, and our associated companies.

[14] The Crown has indicated that it will seek to rely on this signed statement when the appeal is heard. There is nothing concerning the merits of the appeals against either conviction or sentence which persuades us that the interests of justice require bail.
[15] In relation to (b) and (c) we take into account that in relation to both the District Court and High Court sentences, Mr Ludlow will not be eligible for parole until some time in early 2014. His appeals are likely to be heard in the first part of next year, so his appeals will not be rendered nugatory if he remains in custody. Therefore nothing in the length of sentence or likely length of time that will pass before the appeal is heard indicates that bail should be granted. No issues arise under (d) and (e).
[16] Thus, Mr Ludlow has not satisfied us on the balance of probabilities that it would be in the interests of justice to grant him bail.

Result

[17] Mr Ludlow’s application for bail pending appeal is declined.

Solicitors:
Meredith Connell, Auckland for Respondent

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[1] R v Ludlow DC Auckland CRI-2009-004-23758, 26 July 2011.
[2] R v Ludlow DC Auckland CRI-2009-004-23758, 20 October 2011.
[3] R v Ludlow [2012] NZHC 360.
[4] Ludlow v R [2012] NZCA 447.

[5] This was the approach in Marsh v R [2010] NZCA 29 and R v Mani [2009] NZCA 615.
[6] Bail Act 2000, s 14(1).
[7] Section 14(2).
[8] Section 14(3).