Soffe v R [2013] NZCA 376 (16 August 2013)

Last Updated: 21 August 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA14/2013 [2013] NZCA 376
BETWEEN	GARY WILLIAM SOFFE Appellant
AND	THE QUEEN Respondent

Hearing:	14 August 2013
Court:	Harrison, Venning and Courtney JJ
Counsel:	R A B Barnsdale for Appellant M D Downs for Respondent
Judgment:	16 August 2013 at 9 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

2. The appeal against the sentence of a minimum term of imprisonment is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

[1] In May 2011 Gary Soffe pleaded guilty in the District Court at Hamilton to one charge of false accounting and nine charges of theft by a person in a special relationship. Between 2006 and 2010 he had progressively misappropriated more than $4 million from a family trust and related entities for which he performed accounting and investment services by committing multiple financial deceptions and breaches of trust. He has since made full reparation.
[2] In July 2011 Judge Marshall sentenced Mr Soffe to five years and one month imprisonment to be served concurrently on all charges.^[1] The Judge also sentenced Mr Soffe to a minimum term of two years and six and a half months of imprisonment. The Judge’s sentencing notes include a full summary of Mr Soffe’s offending.
[3] On 18 December 2012, about 17 months out of time, Mr Soffe filed a notice of appeal against his conviction and sentence of a minimum term of imprisonment. He sought to vacate his pleas of guilty. His appeal against conviction faced a series of apparently fatal obstacles. In recognition of them, Mr Barnsdale advised after the hearing commenced on 14 August 2013 that Mr Soffe had instructed him to abandon the conviction appeal.
[4] In sentencing Mr Soffe to a minimum term Judge Marshall noted:

[22] I turn to consider s 86 Sentencing Act to determine whether a minimum period of imprisonment should apply. Section 86 provides that the Court may impose a period of minimum imprisonment that is longer than the period otherwise applicable under the Parole Act 2002, if it is satisfied that the period is insufficient for all or any of the following purposes. The ones I think relevant are:

(a) Holding you accountable for harm done to the victims and the community by the offending.

(b) Denouncing the conduct in which you were involved.

(c) Deterring you or other persons from committing the same or of similar offence.

[23] I consider that the period is insufficient, having arrived at the sentence of five years and one month. I consider it is necessary to hold you accountable for the harm done to the victims. To denounce your conduct, I consider that you are unlikely to re-offend, but I must send a deterrent message to other like minded people. Persons who are acting as chartered accountants and professional trustees, who find themselves effectively in sole control over large entities, there must be a deterrence from helping themselves to the funds and assets of those entities. I consider that a minimum period of imprisonment for one-half of the term of five years and one month is appropriate.

[5] Mr Barnsdale submits that the Judge erred in exercising his statutory discretion because he failed to consider afresh the relevant sentencing factors when determining whether at the first or threshold stage it was appropriate to impose a minimum term. The Judge’s notes speak for themselves in answer to that submission. Moreover, when exercising his discretion he was entitled to give appropriate weight to the particular factors of denunciation, accountability and deterrence of others.
[6] Mr Barnsdale does not challenge the length of the minimum term. As Mr Downs rhetorically observes, if offending on this scale does not justify a minimum term of half the finite sentence, what offending does. We agree.
[7] The application for an extension of time in which to appeal is granted, but Mr Soffe’s appeal against the sentence of a minimum term of imprisonment is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Soffe DC Hamilton CRI-2011-019-3839, 21 July 2011.