R v Andrews [2019] NZDC 12700 (2 July 2019)

Last Updated: 18 September 2021

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2017-004-004422

[2019] NZDC 12700

THE QUEEN

v

RAYMOND ANTHONY ANDREWS

Hearing:	2 July 2019
Appearances:	J Parry for the Crown Defendant appears in Person
Judgment:	2 July 2019

NOTES OF JUDGE D J SHARP ON SENTENCING

[1] Mr Andrews, at age 69 years you are for sentence in relation to 12 charges of using forged documents, 12 charges of forgery, charges of obtaining by deception, there are three of those charges, two under s 241(a) and one under s 241(b), charges of misleading the Official Assignee, concealing property to the value of $500 or more contrary to the Insolvency Act 2006, while prohibited taking part in the management and control of a company contrary to the Companies Act 1993, being an undischarged bankrupt taking part in the management or control of the business.

[2] The business in this case was the importation and distribution of motor vehicles. It is something that you previously have done while bankrupt and have been sentenced for by other Courts at other times.

R v RAYMOND ANTHONY ANDREWS [2019] NZDC 12700 [2 July 2019]

[3] I heard the trial in respect of this matter. I heard the evidence. I have intervened a number of times during the course of your address which I permitted you to make and in part by Mr Gardiner who is assisting you although given leave to withdraw as counsel. The reason I did that was I heard the evidence at trial and I was not prepared to hear it said that the jury verdicts or proof of the elements of the charges should not be taken in account.

[4] Your case involves me applying the principles and purposes of sentencing. They are to deter people from behaving in this way. Deterrence is a necessary and significant part of your sentencing. That deterrence is both personal because notwithstanding your age, you have made repeated efforts to continue your trading notwithstanding the prohibitions that are in force. General deterrence in the sense that people should know that once they are subject to orders of bankruptcy, they have options; they may challenge the bankruptcy. I heard some evidence of you taking such steps but without concluding them. But while persons are subject to bankruptcy, the law is that they will not act in business as you have done. People need to know that if that happens, it will be met with serious penalties.

[5] There is a need for accountability. In your case, having heard your evidence and you making submissions about the things that you did, about other people who you say may have provided goods, about remedies that were available to people, notwithstanding the guilty verdicts, your accountability is something I find very difficult to sheet home. Your personality, your manner of dealing with things, the way that you have misled people puts you in a category of someone who completely lacks accountability. You are someone who the public needs to be protected from. Your ability to persuade people and to make seemingly reasonable statements from a position where no such statements could possibly be made marks you out as person who has significant negative characteristics unsupported by any sense of personal responsibility.

[6] This is a case in which I have to consider the victims of the offending, one of whom is present in Court. I saw the victims giving their evidence in Court. They include your own daughter whose bank accounts you have ruthlessly exploited in an effort to conceal money from the Official Assignee. She is devastated by what you

did. That was entirely your fault. It is something you do not acknowledge. The cross- examination of your daughter was a travesty. That is something which adds to the damage which is done but the damage to many victims is significant in a financial sense.

[7] The losses which the Crown estimate are somewhere in the vicinity of

$700,000. You of course take the position the loss is not as great as that. In my view, listening to the evidence of the victims who were exploited by yourself is it is likely the loss was something in the vicinity of $500,000 of persons’ money. These were persons who relied on what you told them. They were misled and were encouraged into unwise ventures by you. You told them you were able to provide vehicles that were attractive, had high specifications and met the desires of persons who were prepared to put their faith in you, however wrong that was.

[8] I have to take into account prospects of rehabilitation. In your case at your age with the number of previous convictions that you have for similar type offending and the attitude which you display, rehabilitation is something that I cannot realistically take into account as a mitigating aspect. The Parole Board will be interested to see what you do while you are in custody and that will be a matter for them. Your submissions show no indication of remorse for the things that you have done. There is no indication that you are willing to take any course of conduct that would change you from being someone I perceive as a danger to the public.

[9] I have to take into account other sentences that have in other cases been imposed. I have to sentence you on a way that is consistent with other persons who have done similar things. The Crown submit that this is the most egregious occasion which they are aware of in relation to persons who have continued to trade while subject to orders of bankruptcy. They say your management of business and concealing of assets is highly significant. You took the opportunity for serious fraudulent behaviour during the course of your bankruptcy.

[10] There is no definitive lead offence, I agree with that submission from the Crown. It seems to me that the real damage that was done was in the obtaining by deception charge and so I will pass the longest sentence for those charges,

notwithstanding the fact that significant penalties are called for in relation to the trading while bankrupt and forgery conduct. Those activities were part of the process you adopted to deceive people.

[11] The requirement is for me to identify the aggravating features of the offending in terms of looking for what starting point should be obtained. I am required by the Sentencing Act 2002 to impose the least restrictive outcome that is consistent with the principles and purposes of sentencing and I bear that in mind in looking for the appropriate sentence in your case.

[12] As far as aggravating factors go, R v Varjan provides an outline from the Court of Appeal of matters that need to be taken into account for culpability to be established in respect of the fraud charges.1 In this particular case, there is a significant extent of harm to persons who were misled by you. As I have said, the losses that have been proposed here are significant. The previous matters which caused your bankruptcy were also significant losses that relate to your bankrupt estate, the Official Assignee has made recoveries totalling approximately $80,000 much less than the losses covered. Accordingly, throughout your history both including your bankruptcy and in your fraudulent behaviour, losses have been incurred by members of the public at various stages.

[13] The offending here was premeditated, it was planned. It was concerted offending. You used personal relationships to persuade people that you were someone who was able to provide high value items. Your offending has been ongoing. The Crown make the point that there has been virtually no period in which your offending has ceased. The scale of deposits into bank accounts during the course of this offending is some $775,000. That trading was concealed from the Official Assignee. The losses may have been less than that sum as there were some occasions, rare though they might have been, in which vehicles were supplied to persons.

[14] Your offending was over a four year period; the date of your release until your remand in custody in August 2017. You used a variety of trading entities. You admitted you did not have authority to issue invoices on behalf of your son’s

1 R v Varjan CA97/03, 26 June 2003.

Australian business. Evidence at trial was there was an unwritten agency agreement between you and your son. This was rejected by the jury. Following your arrest, inquiries revealed you had been operating a bank account in your daughter’s name unknown to the Official Assignee. A sum of $55,113.31 was not disclosed to the Official Assignee passing through this account.

[15] The trial showed a series of business meetings and ventures relating to Universal Imports in Grey Lynn. The evidence was that these meetings were to show a scale of business greater than that known to the Official Assignee and to police. Even after you had caused significant losses to the complainants, this trading continued and ventures on a greater scale were proposed. There were some people who, notwithstanding their losses, you continued to engage with in efforts to be involved in further business enterprises. You breached the trust of those persons to a significant extent. You showed an intention to extend the offending from the significant activity that was the subject of the charges.

[16] The extent of the loss and harm is difficult to determine accurately in this particular case. The obligation not to conceal property is aimed to try to provide returns for creditors. There was significant harm to individual persons here. The offending caused considerable damage.

[17] As regards the offending, there is nothing that could be truly said to be mitigating about the offending that occurred; the scale of it, the variety of offending involving deception in relation not only to motor vehicles but other items of business where persons were misled and suffered loss as a result of your conduct.

[18] The Crown refers to other cases involving insolvent trading; Ministry of Business, Innovation and Employment v Coupe was a case in which there was significant trading involved.2 The losses, however, related to only $75,168 in that case. There was a considerable coverup of trading activity, a global starting point of three years and two months was adopted. There were mitigating circumstances there that do not apply here that allowed the case to be one, although finely balanced, that

2. Ministry of Business, Innovation and Employment v Coupe DC Auckland CRI-2014-004-011161, 8 August 2016.

ended in a home detention sentence. R v Xie was a case in which significant credit was obtained by a bankrupt.3 Building and landscaping supplies were obtained. The initial starting point was three years and nine months imprisonment and in the end, a sentence of three years and four months’ imprisonment was imposed.

[19] The circumstances of your sentencing also involves significant fraudulent behaviour. The Crown refers to R v Joshi.4 In that case, a starting point of six years and six months’ imprisonment was selected by Gilbert J. The scale of the fraudulent behaviour involving importation of luxury vehicles at favourable prices. It was spread across numerous victims, significant losses were obtained and this involved losses also in relation to Mr Joshi’s mother, forgery of his parents’ signatures and false records being provided to his parents’ company to deceive two finance companies into purchasing motor vehicles. There was a serious breach of trust, there was exploitation of friendship and business relationships. There are many parallels that can be drawn between that case and your case. Of course, Mr Joshi at the stage he committed these dishonesty offences was not trading as a bankrupt person or breaching the rules in relation to operating companies while prohibited.

[20] In Mount v R, someone convicted at trial of 76 fraud charges, including failing to account and of theft by person in a special relationship.5 Mr Mount was a financial consultant and investment advisor. He received money from clients for investments. He represented this money would be safe, prepared false reports and stole a little more than $500,000 from 18 clients. A starting point of six years was adopted for each of the offences of dishonesty. This matter was appealed to the Court of Appeal. The Court took no issue with the starting point of six years’ imprisonment but substituted the sentence of six years’ imprisonment for the six years and nine months originally imposed. Your level of dishonesty is similar to this case.

[21] In your case, the Crown submits that a global starting point for the offending should be in the vicinity of six years’ imprisonment. I have heard nothing by way of submission or, from what I observed at the trial or in reading the victim impact

3 R v Xie [2008] NZDC 11824.

4 R v Joshi [2015] NZHC 2215.

5 Mount v R [2015] NZCA 489.

statements that in any way makes that starting point too high. It is a case in which a starting point of six years’ imprisonment is appropriate.

[22] Having looked at the aggravating features and considering whether there might be any mitigating aspects, I take the starting point of six years’ imprisonment. From there, I consider your personal characteristics. There was some offending while on bail in this case but as I have taken the almost continuous nature of the offending as an aggravating feature, I do not uplift for offending while on bail. I do have to take into account your previous history.

[23] You have several convictions for trading while bankrupt and for that reason, I come to the conclusion that the previous sentences of imprisonment which were imposed for offending in relation to breaches of the Insolvency Act need to be reinforced by an uplift with regard to your offending here. So for that reason, I uplift the starting point. I do so by 12 months, taking the sentence to one of seven years’ imprisonment.

[24] From there, I turn to your other personal characteristics; your pre-sentence report provides little that could be said to be of support in relation to any mitigation. The pre-sentence report writer took the view that your offending related factors have been identified as poor problem solving, attitudes and an unstructured lifestyle. You were someone who was regarded as posing a risk of emotional harm to others at a medium to high level given the losses that have been suffered. Your likelihood of re- offending was assessed as medium. You showed a lack of insight into your offending. It is suggested that you showed remorse, however, that does not seem to be backed up by your actions or the submissions that I have heard today. Given your long history of fraudulent offending, the number of charges and the seriousness of the offending, a sentence of imprisonment is recommended.

[25] You are someone who is 69 years of age. You have spent a relatively long period in custody. It is acknowledged that you have some issues with health. You have issues with your hip that make things uncomfortable and you are in need of surgical support in relation to that. There are, as you said yourself, not many people of your age in custody and a period of incarceration, particularly for a significant

period, has to be recognised as a greater imposition for you than it would have been on a person who was younger and healthier. For that reason, I reduce the seven year sentence by six months to six years and six months.

[26] I see no other factor that ought to be given credit in relation to mitigation. There is no prospect of reparation for any of the people who have suffered loss and I make no orders for reparation.

[27] Please stand up Mr Andrews. In relation to the charges, the sentences imposed are as follows; in relation to each of the forgery charges, you are sentenced to five years’ imprisonment. In relation to using forged documents, you are sentenced to five years’ imprisonment. For the four obtaining by deception charges, you are sentenced to six and a half years’ imprisonment. In relation to the misleading the Official Assignee charge, you are sentenced to nine months’ imprisonment. In relation to the concealing property, you are sentenced to two years’ imprisonment. In relation to the taking part in management or control of the company while prohibited, you are sentenced to three years’ imprisonment. In relation to being an undischarged bankrupt taking part in management or control of the business, you are sentenced to one year’s imprisonment. They will all be served at the same time. It is a total sentence of six and a half years’ imprisonment.

[28] The Crown made submissions that I should impose a minimum sentence of imprisonment. Because your sentence is already significant, I will not impose a minimum period of imprisonment. The Parole Board will get to consider your case, they will see these sentencing notes. You would need to show a considerable change in relation to your efforts at rehabilitation before the Parole Board could seriously consider that as a basis for your release on parole.

D J Sharp

District Court Judge