Arnott v R [2015] NZCA 236 (11 June 2015)

Last Updated: 23 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA588/2014 [2015] NZCA 236
BETWEEN	GREGORY ALAN ARNOTT Appellant
AND	THE QUEEN Respondent

Hearing:	8 June 2015
Court:	Harrison, Andrews and Gilbert JJ
Counsel:	P E Dacre QC for Appellant T A Simmonds for Respondent
Judgment:	11 June 2015 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Gregory Arnott pleaded guilty in the Auckland District Court to five charges of theft by a person in a special relationship and five charges of making a false statement by a promoter. He appeals against the sentence of six years imprisonment imposed by Judge Ronayne on the grounds that: first, the starting point of seven years imprisonment was excessive; and, second, the 5 per cent discount allowed from that starting point, in recognition of various mitigating personal circumstances was inadequate.^[1]

Background

[2] Mr Arnott is aged 52 years. In 2006 he set up a business as a stock broker and options trader, trading on the New Zealand and Australian stock exchanges. He had worked previously in investment advisory and broker roles.
[3] Mr Arnott traded on an individual basis for investors, principally through three companies. Between April 2008 and May 2012 he received investments from New Zealand residents totalling AUD 4.3 million which he was authorised to trade. Instead, he dishonestly used about NZD 2.5 million, contrary to the express terms of client authorities for his own use (to buy a house worth over $700,000), to repay other investors and in part payment of an advance fee for a loan of $1.3 million, incurred in association with a notorious fraudster. All these funds were lost.
[4] Separately, over the same period, Mr Arnott sent false statements to investors which did not reflect any trading losses. For the three years following February 2009 Mr Arnott prepared and distributed monthly statements of account showing significant investment values for investors even though he had stopped trading because of a lack of available funds. His purpose was to induce investors either to maintain what they understood were their investments with his companies or to advance further funds. In total the difference between the values reported and the actual balance of money held, which was nil, totalled about NZD 3.27 million.

District Court

[5] In fixing a starting point of seven years imprisonment, Judge Ronayne took into account the relevant sentencing principles and purposes such as accountability, promoting responsibility, denunciation, deterrence and recognition of the interests of Mr Arnott’s victims. The Judge also took account of the overall gravity of the offending and its seriousness compared with other offending of a similar type, recognising that consistency in sentencing levels was required. For that purpose, he referred to a number of this Court’s decisions.
[6] In summary, the Judge was satisfied that particularly aggravating features of Mr Arnott’s offending were the extent of loss or damage resulting from the offending – some $2.54 million of client funds, and lost capital of $5.3 million; Mr Arnott’s abuse of trust and his victims’ authority – three victim impact statements revealed clearly what the Judge said was the terrible effect of Mr Arnott’s offending on innocent parties; and Mr Arnott’s self-evident planning and premeditation, spanning a period of about four years.
[7] In mitigation, the Judge recognised Mr Arnott’s guilty pleas, although they were not early and were entered in the face of an overwhelming case. He gave a discrete credit of four months for Mr Arnott’s expression of remorse, repayment of about $260,000, previous good character and family support. The sentence was reduced to six years and eight months, before allowing for a further discount of 10 per cent for Mr Arnott’s guilty plea.

Decision

[8] On appeal, Mr Dacre QC accepted the well established sentencing principle that planned and repeated dishonesty for financial gain typically constitutes serious offending, warranting a clear element of denunciation.^[2] Culpability is to be assessed by reference to the circumstances and other relevant factors such as the nature of the offending, its magnitude and sophistication, the type, circumstances and numbers of victims and the amounts of losses involved together with any breaches of trust.^[3]
[9] By reliance on sentences imposed on finance company directors, Mr Dacre submits that the Judge erred when concluding that the combination of aggravating factors justified a seven year starting point. He relies primarily upon this Court’s decision in Ludlow v R where a finance company director caused net loss to the investing public of some $2.8 million for frauds committed over a 19 month period. This Court upheld a starting point of six and a half years with an end sentence of five years and seven months.^[4] In Mr Dacre’s submission, Mr Arnott’s offending is less serious. We disagree; applying Ludlow justifies a seven year starting point in this case given the greater scale of Mr Arnott’s offending which lasted twice as long.
[10] Mr Dacre also refers to sentences imposed in the High Court in R v Petricevic^[5] and R v Roest.^[6] Both defendants were directors of Bridgecorp Finance Ltd which collapsed in 2007, owing more than $440 million to almost 15,000 investors. Both defendants faced charges of making false statements to trustees and distributing offer documents containing false statements. The trial Judge adopted a starting point of seven and a half years imprisonment for each.
[11] We agree with Mr Simmonds. While the losses in those two cases were much higher, the culpability findings were of mismanagement of Bridgecorp’s finances by its directors. There was no element of sustained and premeditated offending on a personal level like Mr Arnott’s offending.
[12] As Mr Dacre accepts, there is questionable utility in applying a rigid comparative analysis between sentences imposed in circumstances which inevitably differ in at least one material respect. Consistency is a necessary value but it does not impose absolutes. In an area of offending like serious fraud, the leading authorities set the applicable parameters. The question is always whether the starting point adopted is within an acceptable range by reference to the Judge’s assessment of the particular culpability factors. We are satisfied that Judge Ronayne’s approach conformed to this sentencing approach.
[13] Mr Dacre also submits that the allowance given for personally mitigating factors was inadequate. While, as Mr Simmonds accepts, the allowance was very modest, we are not satisfied that it led to a manifestly excessive sentence. Our task is always to determine whether the end sentence is within range. In our judgment the sentence of six years imprisonment imposed upon Mr Arnott was within range.

Result

[14] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Arnott DC Auckland CRI-2012-004-18343, 22 August 2014.

^[2] R v Rose (1990) 5 CRNZ 638 (CA) at 642.

^[3] R v Varjan CA97/03, 26 June 2004 at [22].

^[4] Ludlow v R [2013] NZCA 196.

^[5] R v Petricevic [2012] NZHC 785.

^[6] R v Roest [2012] NZHC 1086, affirmed in R v Roest [2013] NZCA 547.