Michaels v R [2014] NZCA 258 (19 June 2014)

Last Updated: 25 June 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA54/2013 [2014] NZCA 258
BETWEEN	LOIZOS MICHAELS Appellant
AND	THE QUEEN Respondent

Hearing:	27 May 2014
Court:	Harrison, Ronald Young and Simon France JJ
Counsel:	P T Eastwood for Appellant R Reed for Respondent
Judgment:	19 June 2014 at 3 pm

JUDGMENT OF THE COURT

1. The application for leave to adduce the further evidence of Peter Hikaka is granted.

2. The application for leave to adduce the further evidence of Clinton Bowerman is declined.

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

4. The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] Mr Michaels was convicted before Judge Field, sitting alone, on 30 counts of obtaining by deception.^[1] The total loss attributed to Mr Michaels’ actions was over $3 million. He was sentenced to a total term of eight years’ imprisonment, with a minimum parole period of three years nine months’ imprisonment.^[2] Mr Michaels appeals his convictions on the basis that his trial counsel made serious errors that have resulted in a miscarriage. He appeals both aspects of his sentence.
[2] Affidavits have been filed by Mr Michaels and impugned counsel, Mr Peter Kaye. Mr Kaye was assisted in his trial preparation by a private investigator, Mr Rhodes, who has filed an affidavit.^[3] We record Mr Michaels and Mr Kaye gave oral evidence before us, and were crossexamined.
[3] The charges covered two separate alleged frauds. The first, which was the most complex, involved inducing the victims to invest in various schemes centred around the casino industry. The second involved convincing a vendor of upmarket apartments to pay money as an earnest vendor to keep a wouldbe purchaser of several apartments interested. In relation to each event Mr Michaels’ defence was that he never made the false representations attributed to him, and that he was the victim of the complainants’ illegal activities.

Facts

[4] What first follows is a very truncated overview of the casino enterprise charges. Mr Michaels inserted himself into the Christchurch Casino by spending sufficient money to be classed as a VIP customer. This brought him into contact with the two primary victims, Mr Lyttleton and Mr Arbuckle, who were at that point effectively the second and third in charge of the casino. Each victim had issues – Mr Lyttleton had been passed over for the top job and was aggrieved and looking for other opportunities. Mr Arbuckle also had issues and was open to new opportunities.
[5] The Crown allegation, accepted as proved by the Court, is that Mr Michaels falsely represented himself as having associations with, and working for, a well-known very wealthy Asian family (the Ho family) who have large casino interests in Hong Kong and Macau and are substantial shareholders in a company called Melco Development & Investments Ltd (Melco). At the time of these events there was media speculation in New Zealand that a takeover of the Sky City Casino enterprise in New Zealand was in the offing. The identity of the possible bidder was not public knowledge. Mr Michaels indicated he was here on behalf of the bidder, Melco, to do the due diligence. Sky City held a 40 per cent interest in the Christchurch Casino which was why he was there.
[6] The other strand to Mr Michaels’ false background was a claim to being part of a Greek family that owned a large shipping business in Cyprus. Each of the two representations came with enough detail to survive an internet search and remain plausible. It seems none of the victims made direct enquiry of the two entities involved. Both representations were key to the fraud in that they suggest Mr Michaels was acting for and had the financial backing of a large casino operator, and suggested he had personal wealth or access to funds.
[7] Mr Michaels, relying upon these false representations, then executed a sustained, ever developing, con. He induced the men to leave their jobs for intended employment by Melco. The nature of their role developed and along the way other projects such as a new online gaming enterprise, property development, a polo club venture in Macau, and the purchase of a soccer club were added.
[8] Having lured the two initial victims in, Mr Michaels then began requests for money from them. It was said that Melco required them to invest themselves in the projects to show their genuine commitment. As each man got deeper, and the prospect of not only not realising the promised rewards but also of losing actual money already invested grew, the demands increased. Drained of their own resources, the two victims approached friends and colleagues to invest, and so a second tier of victims emerged. Of these there were five primary complainants. Further, two of these in particular, who were brothers, then encouraged a large number of others to invest.
[9] A feature of the case was that Mr Michaels successfully insisted on all payments (totalling millions of dollars) being received in cash. Regardless of who the original source of the money was, the payments went through one of the two original victims and then were given to either Mr Michaels or one of his associates. A related feature of how Mr Michaels operated was that Mr Michaels himself never used his own name on documents or fronted initial approaches. He certainly met with investors once they became concerned. For example, two of the second tier investors, the brothers who were to lose $1.3 million, became suspicious and went to find Mr Michaels in Auckland. They eventually did, and Mr Michaels was able to convince them of the genuineness of it all. Another example of staying in the background is that when several companies were formed, Mr Michaels’ name never appeared on the paperwork.
[10] This combination of cash payments and remaining in the background enabled Mr Michaels to advance the defence that he did, namely that it was he that was the victim of an elaborate hoax by the two primary complainants. It was they who were disgruntled with the casino, they who had the knowledge and experience of the casino industry to put all this together, and they who did everything. Mr Michaels claimed he was effectively lured into their scheme to provide a lot of legwork and input for no reward and on the promise of rewards that never came.
[11] The fact that cash was always used meant the Crown had less documentary proof than might normally be the case of where the victims’ money went. However, the Crown pointed to Mr Michaels’ lifestyle and capacity to purchase expensive items with cash as supporting its case. Mr Michaels countered with evidence of receipts into bank accounts (not necessarily his but those of associates) from family, friends and contacts in Australia. This was said to explain his capacity to spend as he did.
[12] The other strand to the defence, emphasised well by Mr Kaye, was the incredibility of the whole thing. With the benefit of hindsight it is not possible to avoid a feeling of surprise that experienced people could be fooled this way. The defence used that sentiment in its favour to support its claim that indeed it was incredible, and did not happen. The men were not duped; they were the offenders. It was not Mr Michaels who had the skills and experience in this area, it was the alleged victims.
[13] Turning to the apartment block charges, a similar contest of who was the victim emerged. The basic facts were clear. The complainant owned a block of luxury apartments which were for sale. She described her initial contact with a Michael Callis (the appellant), a man who arrived in late model BMWs, flashing gold and Rolex watches, turning up with a very high profile sportsman (another would-be target who largely avoided the snare), and generally exuding wealth. Again the connections to the Greek shipping line were mentioned and from there the defrauding of the owner under the guise of purchasing 12 apartments commenced.
[14] The detail is again unimportant. The victim’s evidence was that Mr Michaels misrepresented who he was and his capacity to purchase, suggesting this time a connection with a bank in Belgium. Once the agreement to purchase the units was in place, pressure then came on the victim to satisfy the overseas backers that she as vendor would not pull out of selling them. This commitment on her part was to be met by her paying money. Initial payments were met by increasing demands and a final payment request, and failing such payment, that the deal was “all off”. Again one sees the pattern of a person caught and pressured to increase payments out of fear of losing what was already committed.
[15] A further notable feature was that the victim had a coowner. Early on, Mr Michaels expressed displeasure with the coowner and encouraged the victim to isolate herself. Mr Michaels would only deal with the victim or the sales would otherwise be off. The Crown had led similar evidence of Mr Michaels successfully isolating the victims in the casino fraud.
[16] The defence on the apartment block allegation was again that Mr Michaels was the victim. On this occasion it was said the owner of the apartments had tax issues and wanted to disguise some payments. Mr Michaels agreed to launder the money for her. The idea was to create the impression the money had been expended on legitimate work. The total sum was $350,000 of which Mr Michaels’ fee would be just over $100,000, with the balance to be returned to the complainant. The defence claim was that it was to hide this illegal activity on her part that the victim had concocted this story about Mr Michaels.
[17] In essence, therefore, the core defence on both sets of events was a denial of the false representations. It was not a claim of believing them to be true but a direct contest as to whether Mr Michaels had ever made these claims. This was a formidable task for Mr Michaels given the Judge identified nine witnesses who had given evidence as to Mr Michaels’ reliance on his fictional relationship with Melco and the wealthy Ho family behind that enterprise. Similarly, a large number gave evidence as to claims of connections to the shipping company. The Crown also led propensity evidence of fraudulent activity by Mr Michaels in Australia. These witnesses also described Mr Michaels portraying a false picture of wealth.
[18] To explain away this body of evidence claiming the same thing, Mr Michaels alleged a conspiracy by the Serious Fraud Office. It was that organisation’s connivance that explained how all these witnesses were able to give similar evidence. Mr Michaels also, as the Judge noted, attacked the character of many of the prosecution witnesses, attributing improper motives, and claiming the involvement of other prominent people who were not witnesses.
[19] The Judge essentially disbelieved Mr Michaels and considered he was telling lies. By contrast he believed the evidence of the prosecution witnesses, including the complainants. The Judge was satisfied to the criminal standard on all charges (save count 13 which was not pursued) and considered he did not need to have regard to the propensity evidence to reach that verdict. However, the Judge noted features of that evidence, which he accepted, which reinforced his earlier conclusions. There was again the claim of connections to the Greek shipping family, and again representations of connections to overseas wealth and investors.
[20] Before turning to the criticisms of trial counsel, we observe that it is clear this case was largely about the credibility of Mr Michaels. That is not in any way to confuse the onus, but to recognise that the Crown case was on its face very strong. The existence of a reasonable doubt, if it was to be found, was almost inevitably to be found in a combination of the unlikelihood that the victims could be duped in this way, and Mr Michaels’ evidence.
[21] Mr Michaels gave evidence and put his case. No criticism is made of the way his evidence was led. It was on its face an unlikely explanation which needed buttressing by allegations of a grand scale conspiracy by the Serious Fraud Office in which not only its officers but a large pool of witnesses were complicit.

Criticisms of trial counsel

[22] The criticisms fall under four headings, namely:

• (a) failure to disclose conflict;
• (b) inadequate preparation;
• (c) failure to call witnesses; and
• (d) failure to crossexamine properly.

[23] The approach that an appeal court should take to an appeal alleging a miscarriage of justice due to trial counsel incompetence was considered by the Supreme Court in Sungsuwan v R.^[4] This Court summarised that approach in R v Scurrah and observed, as relevant, that:^[5]

[17] The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

Failure to disclose conflict

[24] Mr Michaels complains that Mr Kaye’s partner is associated with the Crown solicitor’s firm. Whilst that was true, there is no evidence that Mr Kaye’s partner was ever involved in this case. There was no conflict to disclose in this regard. The other alleged conflict is that one of the Crown witnesses, Mr Goodfellow, had connections with the National Party. Mr Michaels observes that Mr Kaye’s daughter is a National Party MP and that some time after the trial Mr Kaye acted for Mr Goodfellow.
[25] Mr Kaye has deposed that he has never acted for Mr Goodfellow and we accept that. As with all his allegations Mr Michaels has provided no evidence in support. Nor do we see that the fact that Mr Kaye’s daughter is a National Party MP was a matter requiring disclosure or giving rise to any apparent conflict.

Trial preparation

[26] Mr Kaye has deposed that he had difficulties at times obtaining instructions from Mr Michaels. He was adequately instructed for pretrial matters but generally had difficulty because Mr Michaels was prone to outbursts that made their time together unproductive.
[27] Mr Kaye was aware that Mr Michaels had a list of people he considered would assist his case. Mr Kaye arranged legal aid for a private investigator to speak to Mr Michaels. The private investigator, Mr Rhodes, obtained a list of names from Mr Michaels but could not understand why it was that he was to contact many of the named people. The most information on this that he could obtain from Mr Michaels was that if they were interviewed, material to undermine the Crown case would be obtained.
[28] A number of the names given to Mr Rhodes were already to be Crown witnesses and they were not pursued further. Four remained. One was contacted and had no information, one was uncontactable overseas, and two had moved on from their only known place of work, and could not be located.
[29] Returning to Mr Kaye’s own preparation, Mr Kaye remained conscious he would like better information. Accordingly at the start of trial he obtained a two day adjournment to allow him to spend that time with Mr Michaels. Then, after the one day Crown opening, a further day became available for Mr Kaye to work through things with Mr Michaels. Mr Kaye considered by the end of this combined period he had extensive detailed written instructions on which to proceed.
[30] Subsequently, Mr Kaye continued to take instructions during trial – he lists 10 separate occasions totalling 28 hours of discussion time. In addition the record shows Mr Kaye seeking and obtaining adjournments during or at the end of crossexamination to confer with Mr Michaels.
[31] Mr Michaels disputes much of Mr Kaye’s evidence, or has a different view of the quality of the time spent together. However, we are satisfied that there is no merit in this complaint about trial preparation. What Mr Kaye says is reinforced by a perusal of the transcript which shows careful and plainly informed crossexamination of witnesses. On many occasions the crossexamination was extensive. Mr Rhodes’ affidavit also reinforces Mr Kaye’s evidence about pretrial events. We do not accept Mr Michaels’ evidence where it conflicts with that of Mr Kaye.

Failure to call witnesses

[32] Mr Michaels lists a number of witnesses he considers should have been called. It is unnecessary to detail the names because all suffer from the same problem. There is no brief of evidence proffered from any of them as to what evidence helpful to Mr Michaels’ case they could give, had they been called. Whilst Mr Michaels seems to be of the view they have information favourable to him that would emerge in evidence if called, there is simply no basis on which an appellate court could conclude any miscarriage has been occasioned by the absence of these witnesses.
[33] Generally on the issue of witnesses not being called, Mr Kaye accepts that Mr Michaels suggested the names of several witnesses who might be approached. It will be recalled that a private investigator was employed for that purpose, but he met with little success in pursuing those witnesses Mr Michaels had mentioned who were not already to be called by the Crown. Mr Kaye says that he himself discussed several witnesses with Mr Michaels. Mr Kaye gave Mr Michaels reasons why the potential witnesses could not or should not be called, and says Mr Michaels accepted that advice. Mr Michaels denies this but we again prefer the evidence of Mr Kaye who has provided sound reasons why he would have given the advice. We also observe that the private investigator says that many of the potential witnesses now being raised by Mr Michaels were not names given to him prior to the trial by Mr Michaels.
[34] On this aspect, therefore, we are satisfied the appeal cannot succeed. We do not accept that Mr Kaye failed to follow instructions in relation to the calling of witnesses, and we are satisfied that such witnesses as were discussed between Mr Kaye and Mr Michaels were not called with Mr Michaels’ agreement. Nothing has been advanced on appeal to suggest Mr Kaye’s advice on these matters was in error. Finally, we repeat that there is still no affidavit from any of these witnesses confirming they have relevant cogent evidence that might be offered on Mr Michaels’ behalf. The proposition that they might have assisted the defence is speculative at best.
[35] Moving on from the absent witnesses, on Mr Michaels’ behalf two affidavits are tendered on the appeal. Both are from private investigators. We deal with each in turn. The first is from a Mr Hikaka, who was engaged by Mr Michaels’ present counsel to find some of the potential witnesses. He deposes in relation to three of these.
[36] The first is a Ms Bell, a former employee of the Serious Fraud Office. She features prominently in Mr Michaels’ affidavit as someone who has previously expressed the view that Mr Michaels was the victim. Mr Hikaka says the witness was willing to meet him, but that she said her recollection of matters was “vague”. It had not been possible by the time Mr Hikaka swore his affidavit to progress this further. We observe that even if Mr Michaels is correct, it is not immediately apparent what admissible evidence the witness could give. She certainly could not be called to say that in her view Mr Michaels is not guilty. Her observation that her memory is vague does not suggest she is in possession of facts not otherwise before the Court.
[37] The second witness was a former employee of the gambling compliance division of the Department of Internal Affairs. Mr Michaels believes the witness would say the Department of Internal Affairs was unhappy with aspects of how the two primary victims were acting at the Christchurch Casino when employed there. Again it is unclear how this would particularly assist, but in any event Mr Hikaka has been unable to locate him.
[38] The third witness is the former wife of the Crown witness, Mr Goodfellow. She now resides in the United States and is apparently willing to talk about what she knew about “this scam”. What that might be is not disclosed.
[39] With considerable reservations about the cogency of the evidence,^[6] we admit it for the purposes of the appeal but indicate we do not consider it advances matters. Nor does it lead us to the view that there might be something “out there” which would make it appropriate to defer matters to allow more time.
[40] The second affidavit is from a Mr Bowerman. He made a statement to Mr Hikaka. It seems Mr Bowerman was previously employed as a private investigator by Mr Goodfellow and his wife together, and then just by his wife, Ms Black, following her separation from Mr Goodfellow. The purpose of the affidavit seems to be to convey the information that Mr Goodfellow had hired Mr Bowerman to locate Stephen Lyttleton. Stephen Lyttleton is one of the two Christchurch Casino managers primarily targeted by Mr Michaels.
[41] It was the Crown case that Mr Goodfellow, a friend of Mr Lyttleton, was one of the people Mr Lyttleton turned to when his own sources of money dried up. Mr Bowerman’s affidavit discloses that sometime after lending the money, Mr Goodfellow became concerned and sought to locate Mr Lyttleton to see if he could get his money back. The affidavit appears to suggest that Mr Goodfellow at that point had suspicions about Mr Lyttleton.
[42] Again it is unclear how this advances the defence case. What one of the investors may have thought at a particular point in time about who was responsible is not of itself relevant. If that view were based on facts not placed before the trial Court there might be a basis to consider the evidence. Otherwise it is irrelevant.
[43] The balance of Mr Bowerman’s affidavit is largely inadmissible comment by the deponent about Mr Goodfellow, and what Mr Bowerman thinks about Mr Goodfellow’s evidence.
[44] A final aspect of the affidavit which requires comment is a letter appended to the affidavit. The letter was apparently given to Mr Kaye on the eve of trial. Seemingly attached to the letter at that time was a copy of the complaint that Mr Lyttleton had made to the Serious Fraud Office. The complaint is in the form of a 13 page report commissioned by Mr Lyttleton and prepared by yet another investigation firm.
[45] The letter and annexure were provided for the appeal to support crossexamination of Mr Kaye that there were matters he could have pursued but did not. Mr Kaye does not recall receiving the letter, but accepts he may have. Having during crossexamination refreshed his knowledge of the contents, he did not accept there was anything in it of helpfulness.
[46] We agree. The letter is largely a set of observations on Mr Goodfellow, or a set of comments by Mr Bowerman or Ms Black on why they have doubts about the case against Mr Michaels. None of this is admissible, nor does it provide material with which Mr Kaye might have worked. As for the annexed report, as one might expect there is little in it favourable to the appellant. Indeed the conclusions reached by the investigator largely mirror the prosecution case as it was presented to the Court by the Crown. There may be tidbits of information within it on individuals that could have been used, but overall its availability to Mr Kaye and his alleged nonuse of it does not advance the appellant’s case that Mr Kaye erred.^[7]
[47] We consider leave should not be given to admit the evidence of Mr Bowerman. A good deal of the contents of his affidavit is inadmissible and should not have been proffered. The aspects that are otherwise admissible do not contain sufficient cogency to justify admission.

Inadequate crossexamination

[48] The primary complaint relates to the crossexamination of one of the two initial complainants, Mr Lyttleton. As part of the events he was caught up in, Mr Lyttleton was sent to spend time in Macau. Complaint is made about the failure to adequately explore who Mr Lyttleton met during this time, and how he paid for his activities.
[49] As Ms Reed observes for the Crown in this Court, several of these topics were in fact covered in crossexamination, but more importantly the nature of the criticism is a considerable distance from the type of error that could make out this ground of appeal. An appeal is not an occasion for a minute dissection of whether some aspects could have been dealt with differently or better. When the very extensive crossexamination of Mr Lyttleton is considered as a whole, it can be seen to be thorough and structured, to challenge Mr Lyttleton on the key matters, and to lay the foundation for the key themes of the defence – his dissatisfaction with the Casino, his vast experience, his upfront role and the unlikelihood that someone of his type would fall for a fraud such as that being suggested in this case.

Various other matters raised by Mr Michaels in his affidavit

[50] We have addressed the key issues on the conviction appeal. However, it is appropriate to comment specifically on some of the topics on which Mr Michaels focuses in his affidavit.
[51] The first topic is the failure to call a Jeremy Phillips as a witness. There was evidence that Mr Phillips had found documents in a BMW belonging to Mr Michaels. Mr Michaels’ possession of these documents was consistent with the evidence of the apartment building victim that the documents had been given to him. Mr Michaels says Mr Phillips should have been called and challenged on this as Mr Michaels does not believe they came from his car.
[52] As it happens Mr Phillips was a witness. His brief, by consent, was admitted unchallenged. Mr Kaye deposes he discussed this with Mr Michaels who agreed. Mr Kaye had seen other material held by the Serious Fraud Office which made it clear Mr Phillips would not cooperate and would not give evidence favourable to Mr Michaels. We accept this evidence and reject the criticism. The way Mr Phillips’ evidence was received was done with the informed consent of Mr Michaels.
[53] Mr Michaels next places some emphasis on the need to call a Mr George Plakas. Mr Plakas was portrayed by the Crown as Mr Michaels’ agent and someone who assisted Mr Michaels. He was allegedly the direct recipient of many of the cash payments. Mr Michaels says, had he been called, the Court would have seen that Mr Plakas was his own man and not an agent of anyone. It is unclear how this would assist Mr Michaels, but we record Mr Kaye’s unchallenged evidence that at the time of trial Mr Plakas was unavailable because he was serving a sentence for fraud in Australia.
[54] Mr Michaels then complains that none of the downstream third tier investors who were encouraged into investing by the two brothers were called to prove that their investment was sourced in any misrepresentation of Mr Michaels.
[55] However, this misunderstands the charge. As noted, the Crown allegation was that all the funds were channelled through the two initial victims, Mr Lyttleton or Mr Arbuckle. The charge relating to these downstream investors alleges that the money was received from Mr Arbuckle, and was paid by him consequent upon pleaded misrepresentations. Where Mr Arbuckle had received the money from is part of the trial context but not something needing to be proved.
[56] Finally on the matters requiring comment, Mr Michaels claims prejudice from a late change in the indictment. There is nothing in the point. The indictment was shortened and particulars clarified. The essential nature of the allegations remained unchanged and Mr Kaye did not consider prejudice was caused by it, or that he was thereby embarrassed in his conduct of the defence.

Conclusion on conviction appeal

[57] We have indicated already our view that the appeal must be dismissed. In concluding that none of the criticisms establish a miscarriage of justice, we would not wish to be taken as suggesting there was some merit in the points. The opposite is the case. We are of the view that Mr Michaels was well represented, and was given every opportunity to present his story. That it was not believed, and that it did not give rise to a reasonable doubt, cannot be laid at the door of trial counsel.

Sentence appeal

[58] This was a case that exhibits some unusual features. Whilst the defrauding of the apartment building owner for $350,000 does not seem to have involved much sophistication, the main offending was a sustained fraud that duped many otherwise astute people. It lasted for about a year and was grand in its scale. At times people of significant public profile were drawn into its periphery, and at many points there was a need for Mr Michaels to expand and develop it. In other words he remained committed right through, and continued to create opportunities or pressure in order to extract the last dollar from some of his victims. The impact on them has been devastating.
[59] The Judge commented on the vulnerability of some of the victims and Mr Michaels takes issue with that. There is some merit in the complaint to the extent that the victims were generally experienced people who at least initially were investors. For some, however, it quickly went beyond that and as they exhausted every avenue open to them, they encouraged others to invest. Once hooked, these people were thereafter vulnerable to the exploitative skills of someone like Mr Michaels. It has previously been noted that Mr Michaels expended considerable effort in isolating his victims from others who might support or warn them away from the path they were following.
[60] Ultimately little turns on points such as whether it was correct to call the victims vulnerable. The key issue is whether the starting point of eight years’ imprisonment was excessive. Each offence for which Mr Michaels was convicted carried a discrete maximum penalty of seven years’ imprisonment. We are satisfied the eight year figure (achieved by cumulating the sentences for the casino fraud and the apartment fraud) was appropriate, bearing in mind:

• (a) the scale of the loss (over $3 million all unrecovered);
• (b) the sustained, complex fraud involved;
• (c) the deliberate draining of every asset a victim had; and
• (d) the number of victims.

[61] The sustained level of creative endeavour marks this case out and also suggests Mr Michaels presents a significant ongoing risk. He is plainly capable of fooling people and exhibits no remorse. Mr Eastwood could point to no comparable cases that suggested that given these features the starting point was out of line. Moreover the cases provided by the Crown support our conclusion.^[8]
[62] For largely the same reasons we see no issue with the decision to impose a minimum non parole period of around 45 per cent. The effect of this offending on the victims has been pronounced, and the sustained nature of the endeavour merited an actual period of imprisonment, for denunciation purposes, of more than one third.

Result

[63] The appeal was brought out of time. There being no objection we grant the application for an extension of time to appeal.
[64] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Michaels DC Auckland CRI20100042225, 30 November 2012.

^[2] R v Michaels DC Auckland CRI20100042225, 18 December 2012.

^[3] These affidavits were filed pursuant to the Court of Appeal (Criminal) Rules 2001, r 12A.

^[4] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

^[5] R v Scurrah CA159/06, 12 September 2006.

^[6] L (CA716/2013) v R [2014] NZCA 187 at [21]; R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].

^[7] Some information contained in the report about Mr Lyttleton’s colleague, the complainant Mr Arbuckle, concerns debts he allegedly owed. This was a topic explored by Mr Kaye in crossexamination of that witness. We do not know if this report was the source of Mr Kaye’s questioning, but it may well have been.

^[8] Bourton v R [2014] NZCA 151; R v McKelvy [2007] NZCA 340.