IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000153
CRI-2016-404-000154 [2016] NZHC 1550

BETWEEN	BENJAMIN KIRO
Appellant	

AND	
THE QUEEN Respondent	

Hearing:	4 July 2016	

Appearances:	
A Prasad for the Appellant
M Harborow for the Respondent	

Judgment:	
11 July 2016	

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 11 July 2016 at 9.30am
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Crown Law Office, Auckland
Public Defence Service, Auckland

KIRO v R [2016] NZHC 1550 [11 July 2016]

Introduction

[1]       On 19 January 2016, the appellant, Mr Kiro, pleaded guilty to the following charges:

(a)	theft by a person in a special relationship (x 10), contrary to ss 220 and 223(a) of the Crimes Act 1961;

(b)	knowing a document to be forged, caused another person to use it as if it were genuine (x 5), contrary to s 257(1)(c) of the Crimes Act;

(c)	dishonestly  using  a  document  to  obtain  a  pecuniary  advantage, contrary to s 228(1)(b) of the Crimes Act;

(d)	making a false document with intent to obtain a pecuniary advantage, contrary to s 256(1) of the Crimes Act;

(e)	knowing  a  document  to  be  forged,  used  it  to  obtain  a  pecuniary advantage, contrary to s 257(1)(a) of the Crimes Act;

(f)	obtaining by deception, contrary to ss 240(1)(a) and 241(a) of the

Crimes Act; and

(g)	making a false document with the intent that it be acted upon as if it were genuine (x 3), contrary to s 256(2) of the Crimes Act.

[2]       Mr  Kiro  was  sentenced  by  Judge  B A Gibson  in  the  District  Court  at Auckland on 28 April 2016 to four and a half years’ imprisonment.   The Judge imposed a minimum period of imprisonment of two years and three months, and made a reparation order in the sum of $75,000.

[3]       Mr Kiro appeals the sentence on the basis that it is manifestly excessive.  It is argued on Mr Kiro’s behalf that Judge Gibson erred:

(a)       by not adjusting the term of imprisonment to take into account the reparation order made;

(b)       by not referring the matter to the restorative justice process, and/or by not giving a discount for Mr Kiro’s willingness to engage in that process;

(c)	by taking into account alleged offending by Mr Kiro in Australia; and

(d)	by not giving Mr Kiro a discount for his previous good character.

Background

[4]       The offending arose out of a number of fraudulent schemes set up by Mr

Kiro.

[5]       Mr Kiro defrauded a number of his victims by presenting them with fake investment opportunities in initial public offerings.  Mr Kiro represented that he was involved  in  an  investment  project  managed  by  a  well  known  and  respected investment firm in New Zealand, and he provided documentation to support his claim.   In reliance on this information, a number of individuals placed substantial funds in Mr Kiro’s bank account.   Mr Kiro offered a return of $29,800 for each
$10,000 invested.  The returns never eventuated.  When pressed, Mr Kiro told the investors that there had been a hold up and that the funds were being held in Hong Kong due to money laundering issues.  On one occasion, Mr Kiro sent an email to one of the investors indicating that $100,000 had been put into an account with an Australian bank by way of two separate transfers – each of $50,000.   No such transfers were made.  When some of the victims endeavoured to arrange meetings with  Mr Kiro, he  failed  to  attend.    Later financial  analysis  of Mr  Kiro’s  bank accounts showed that no investments were ever made, and that Mr Kiro used the funds received by him for his personal use.

[6]       On other occasions, Mr Kiro sent false valuations of investors’ shareholdings to investors.  The valuations purported to come from reputable financial institutions. They were forgeries.

[7]       On yet other occasions, Mr Kiro persuaded victims he met through online dating sites to invest with him.  He represented to them that their money would be invested.  It was not.  Rather Mr Kiro used the money for his personal use.

[8]       Mr Kiro also supplied false academic records from tertiary institutions and false qualifications to others in order to get jobs and to rent property.

[9]       Mr Kiro’s offending occurred over a period of approximately 16 months between August 2014 and November 2015.  When Mr Kiro was eventually arrested, he had defrauded victims in the total sum of $249,765.  Subsequently $62,000 was repaid by him.

[10]     The summary of facts, which Mr Kiro accepted when he entered his guilty pleas, also recorded that he was wanted in New South Wales for similar offending.  It was recorded that the police had laid 19 charges against Mr Kiro at the Manly Local Court alleging that he had obtained approximately $66,000 (NZD) by dishonestly obtaining financial advantage by deception.  The summary noted that Mr Kiro left Australia before he could be formally notified of these charges.

District Court sentence indications/sentencing notes

[11]     Judge Gibson was asked to give a sentence indication.   He did so on 21

December 2015.   He indicated that the end sentence would be four years and six months’  imprisonment,   and   that   he   would   impose   a   minimum   period   of imprisonment of one half of that sentence.  Judge Gibson subsequently added a short addendum to this sentencing indication.   He noted that he had not dealt with reparation.  He considered that it would be unrealistic to order Mr Kiro to pay the balance outstanding – $187,765.   Rather he indicated that, should the sentence indication be accepted, a reparation order would be made in the sum of $75,000, to be paid pro rata between the various complainants.

[12]     As noted the sentence indication was accepted and the pleas were entered on

19 January 2016.  Sentencing proceeded on 28 April 2016.

[13]     In sentencing, Judge Gibson set out the relevant facts.  He noted that he had earlier provided the sentence indication.  He also noted that when Mr Kiro entered his guilty pleas, there was no referral to restorative justice and that this had not been sought at the time.   He recorded that the statutory requirements contained in the Sentencing Act 2002 relevant to the restorative justice process had not been met and that most of the victims of the offending had indicated that they were not interested in participating in a restorative justice conference anyway.   The Judge noted the impact on victims.   He took a total starting point of five and a half years’ imprisonment.   He considered mitigating factors.   He referred to the pre-sentence report, and acknowledged that Mr Kiro had had a difficult upbringing.  He declined to grant any discrete discount for Mr Kiro’s willingness to participate in the restorative justice process.  Nor did he accept that Mr Kiro was entitled to a discount for his previous good character.

[14]     Judge Gibson sentenced Mr Kiro to four and a half years’ imprisonment on the various charges of theft by a person in a special relationship.   On the other charges, he sentenced him to 18 months’ imprisonment.  He allowed Mr Kiro a 20 per cent discount for his guilty pleas, and directed that all sentences were to be served on a concurrent basis.  The effective sentence of imprisonment was therefore one of four and a half years.   The Judge directed that Mr Kiro was to serve a minimum term of imprisonment of 50 per cent of that term, and he made a reparation order in the sum of $75,000.

Submissions

[15]     Ms Prasad, on behalf of Mr Kiro, argued:

(a)       that the reparation order was belatedly raised in an addendum to the sentence indication, and that Judge Gibson should have gone back and moderated the term of imprisonment indicated or the minimum period of imprisonment, to take into account the financial order he was proposing to make.  She argued that this error flowed through into the ultimate sentence imposed;

(b)       that s 24A of the Sentencing Act was breached, and that the restorative justice process was not adequately explored or followed.  She argued that, as a consequence, Mr Kiro lost not only the benefit of potentially redressing the harm experienced by the victims, but also a potential discount from the sentence imposed;

(c)	that Judge Gibson erred by observing that Mr Kiro had offended in

Australia; and

(d)       that Mr Kiro had no prior convictions, and that Judge Gibson should have given him a discount for his prior good character.

Ms Prasad submitted that, as a result of these various errors, the sentence imposed was manifestly excessive.

[16]	Mr Harborow, for the Crown, argued:

(a)       that the sentence, combining a term of imprisonment with a reparation order, was available to the Court, and that, in combination, it was not excessive.  He submitted that whether or not the term of imprisonment was adjusted to take account of the reparation order was a matter for the Judge;

(b)       that, in relation to the restorative justice issue, the relevant statutory provisions were not engaged and that, in any event, the majority of victims were not willing to participate in the process.  He submitted that  Judge Gibson  explained why a discount  should  not  be  given despite Mr Kiro’s willingness to engage in restorative justice, and that this was again a matter within his discretion;

(c)       that Judge Gibson did not suggest that there had been offending in Australia,  and  that  the  fact  that  Mr  Kiro  was  facing  charges  in Australia was not identified as being a relevant factor justifying either

the initial starting point adopted, or any increase in that starting point;

and

(d)       that while the absence of previous convictions was evidence of prior good character, Judge Gibson did consider this, and the conclusion he reached not to take Mr Kiro’s prior good character into account was a discretionary matter for him.

Mr Harborow submitted that the overall sentence was within the appropriate range for offending of this kind, and that it was not manifestly excessive.

[17]     Both counsel focussed on the alleged errors and, by reference to those errors, submitted that the sentence imposed was or was not manifestly excessive.  Neither stood back and looked at the sentence in the round and neither compared it to sentences imposed in similar cases.

Approach to appeal

[18]     Pursuant to s 244 of the Criminal Procedure Act 2011, Mr Kiro has a general right of appeal against sentence.  Pursuant to s 250(2), the appeal must be allowed if there has been an error in the sentence imposed, or a different sentence should have been imposed.

[19]     In Tutakangahau v R,1 the Court of Appeal held that s 250 was not intended to amend the law, but rather to amalgamate pre-existing sentencing practices.  It held that there must be an error.  There will be an error if the Court is satisfied that the sentence under appeal is manifestly excessive.  If the Court is so satisfied, it should then form its own view of the appropriate sentence, and sentence the appellant appropriately.

[20]     The approach to sentence appeals is well established:

(a)       an appellate Court should not interfere with a sentence imposed by a lower Court, unless the sentence is manifestly excessive or wrong in principle;

(b)       an  appellate  Court  must  determine  whether  or  not  the  sentencing Court made an error.  It should not substitute its own opinion for that of the sentencing Court unless there was an error; and

(c)       whether a sentence is manifestly excessive is to be considered by reference  to  the  sentence  imposed,  rather  than  by  the  process  by which the sentence was reached.

[21]     I  note  that  Mr  Kiro’s  sentence  was  imposed  in  accordance  with,  and following his acceptance of, a sentence indication.  This does not affect his right of appeal.2

Analysis

[22]     I will look at each of the errors alleged on Mr Kiro’s behalf in turn.  I will then  stand  back  and  consider  whether  the  sentence  imposed  was  manifestly excessive by reference to comparable cases.

Failing to adjust the term of imprisonment to account for the reparation order

[23]     As noted, Judge Gibson gave an initial sentence indication of four and a half years’ imprisonment.  Shortly thereafter, and by way of addendum, he indicated that, if the sentence indication was accepted, a reparation order in the sum of $75,000 would also be imposed.

[24]     Sections 12 and 19 of the Sentencing Act 2002 permit the imposition of a sentence of reparation, either on its own or in addition to any other sentence.  Section
20(1) provides that a combination can only be imposed if a lesser sentence would not be in accordance with the purpose or purposes for which the sentence is being imposed, or the application of the s 8 principles to the particular case.

[25]     I accept Ms Prasad’s submission that where a reparation order is imposed in combination with a custodial sentence, it can raise, as a related issue on appeal, whether or not there was a failure to moderate the term of imprisonment in recognition of the financial order made.3   Moderation of the term of imprisonment is not however an inevitable consequence where reparation is also ordered.  Where, for example, any reparation is made, not from the offender’s personal assets, but rather
from other funds to which the offender is not lawfully entitled, such as restrained assets, the offender should get little or no credit for any reparation, as the making of a reparation order does little to mitigate the culpability of the offending.4

[26]     In the present case, the Crown was seeking a reparation order in the sum of

$187,765.  Judge Gibson was not prepared to make an order in those terms, because he considered that Mr Kiro did not have the ability to pay the same.   Rather he ordered reparation in the sum of $75,000.   He had signalled this when giving the sentence indication, and at sentencing he noted that Mr Kiro had “not paid a cent of that reparation” and that, as a result, he could not expect any discount from the end sentence.

[27]     The reparation order required the payment of monies, presumably from funds which Mr Kiro had accumulated as a result of his offending.  I am not persuaded that any discount should have been given to Mr Kiro because an order was made that he pay back part of what he should never have had in the first place.  Further, Ms Prasad advised that the reparation ordered has not been paid.  There is no proper basis for the submission that he should nevertheless receive a discount.  Rather, the issue is whether or not the overall sentence imposed by Judge Gibson was manifestly excessive.  I deal with this below.

Failure to refer the case to restorative justice

[28]     There was a change in counsel for Mr Kiro after the sentence indication was accepted.  After the pleas, but prior to sentencing, new counsel for Mr Kiro made enquiries with the case officer at the Auckland District Court about whether the case
had been referred to the restorative justice process.   The case officer advised that

3	Olliver v Police HC Christchurch CRI-2004-409-227, 16 December 2004 at [16].
4	R v Rose [2016] NZHC 1109 at [63]; R v Patterson [2008] NZCA 75 at [21].

there had been no directions in this regard.  Counsel then requested that the matter should be placed before a Judge so that restorative justice could be explored.  The case  officer  did  so  and  then  emailed  back  to  counsel  advising  that  the  Judge consulted (not Judge Gibson) took the view that the matter was not suitable for restorative justice.

[29]     Counsel for Mr Kiro and the police then requested a telephone conference with a Judge.  That occurred on 27 April 2015 – the day before sentencing.  It was before Judge Gibson.  A minute was issued by the Judge advising that he had not been told officially by the Registrar that the restorative justice process could be accessed and, in any event, the case was not suitable for restorative justice.

[30]     Relevantly, s 24A of the Sentencing Act provides as follows:

24A Adjournment for restorative justice process in certain cases

(1)	This section applies if—

(a)        an  offender  appears  before  a  District  Court  at  any  time before sentencing; and

(b)	the offender has pleaded guilty to the offence; and

(c)	there are 1 or more victims of the offence; and

(d)        no  restorative  justice  process  has  previously  occurred  in relation to the offending; and

(e)       the Registrar has informed the court that an appropriate restorative justice process can be accessed.

(2)	The court must adjourn the proceedings to—

(a)        enable  inquiries  to  be  made  by  a  suitable  person  to determine whether a restorative justice process is appropriate in the circumstances of the case, taking into account the wishes of the victims; and

(b)        enable a restorative justice process to occur if the inquiries made under paragraph (a) reveal that a restorative justice process is appropriate in the circumstances of the case.

…

[31]     As can be seen, if the circumstances set out in s 24A(1) are met, the Court is required to adjourn proceedings to allow the restorative justice process to occur.

[32]     Mr Kiro was prepared to engage in the restorative justice process.  So was one victim.  She either had been, or was, Mr Kiro’s partner.  Other victims were not prepared to participate in the process.

[33]     Judge  Gibson  had  received  no  information  from  the  Registrar  that  an appropriate restorative justice process could be accessed.  The requirement identified in s 24A(1)(e) had not been met, and therefore the requirement to adjourn contained in s 24A(2) was not triggered.

[34]     Judge Gibson dealt with the matter when sentencing Mr Kiro.  He noted that there had been no referral to restorative justice, and that none had been sought when Mr Kiro entered his guilty pleas.   He also noted that most of the victims of the offending had indicated that they were not interested in participating in a restorative justice conference.   He recorded that the matter had been raised with him on the previous  day by telephone,  and  that  he  had  directed  that  the  sentencing  would nevertheless  proceed.    He  noted  that  he  had  not  been  informed  in  terms  of  s
24A(1)(e) by the Registrar that an appropriate restorative justice process could be accessed.  He recorded that he had not been prepared to adjourn the sentencing.

[35]     Judge Gibson did however record that Mr Kiro was willing to participate in restorative justice.  He was not prepared to allow Mr Kiro a discrete discount for his apparent willingness to participate.   The Judge considered that he had only been advised at the eleventh hour of Mr Kiro’s acknowledgement of remorse.  The Judge accepted that remorse can be a factor to be taken into account, but went on to state that nothing had been put before him that would encourage him to grant Mr Kiro a further discount over and above that available for his guilty pleas.

[36]     In my view, Judge Gibson explained his reasoning.  He was best placed to assess whether or not such remorse as was implicit in agreeing to attend a restorative justice conference was genuine.  The matter was within the Judge’s discretion, and the reasons he gave to justify his decision are in accordance with established sentencing principles.

[37]     Again the real issue is whether or not the sentence imposed is manifestly excessive, and again I deal with this below.

Alleged offending in Australia

[38]     Mr Kiro lived in Australia between 2003 and 2014. After he returned to New

Zealand in April 2014, Australian police laid 19 fraud related charges against him.

[39]     In his sentencing notes, Judge Gibson observed as follows:

[12]      You did have a difficult upbringing but that is no different from many people in the community.   Your sporting skill gave you some advantages as you were able to secure some type of scholarship to attend a rugby league development squad in Australia and then you were able to move into the corporate sector in Australia and in New Zealand where some of your offending took place.

[40]     Ms Prasad argued that, in the final two lines of paragraph [12], the Judge was asserting that Mr Kiro had offended in Australia.   I do not consider that this is correct.  Some of Mr Kiro’s offending in New Zealand took place in the corporate context when Mr Kiro was representing that he was involved in that sector.  Other offending took place in the personal context, as a result of Mr Kiro taking advantage of persons he met through online dating agencies.  In my view, Judge Gibson was simply referring to the fact that Mr Kiro had worked in the corporate sector in both Australia and New Zealand and that some of the offending took place while he was working in that sector in New Zealand. There was no error.

[41]     The Australian charges were not otherwise specifically mentioned by the Judge.   They were not identified as being a relevant factor justifying the starting point, or any increase to that starting point.  I do not consider that there is anything in this point.

Failure to provide a discount for Mr Kiro’s previous good character

[42]     Pursuant  to  s  9(2)(g)  of  the  Sentencing  Act,  an  absence  of  previous convictions can be evidence of prior good character, and it is a factor which can be taken into account.5

[43]     Judge Gibson did acknowledge that Mr Kiro had no previous convictions. He said that nevertheless he did not accept that Mr Kiro was entitled to a discount for his previous good character, because his offending involved a number of vulnerable victims and was over a sustained period of time.

[44]     In my view the explanation provided by the Judge was appropriate.  While it was open to the Judge to allow a discount, any discount would have been relatively minor.  The more important question is whether or not the sentence imposed by the Judge was within range.

[45]     I now turn to that issue.

Was the starting point/the end sentence manifestly excessive?

[46]     I have considered a number of other cases involving similar type offending:

(a)       In Mount v R,6  a financial consultant mingled his own money with money in a bank account used for client monies.  He stole $510,000 from clients by inflating the reported purchase price of investments, and deflating the reported sale price.   There were 76 charges.   The Court of Appeal considered that a six year starting point adopted by the sentencing Court was appropriate.

(b)       In McGregor v R,7  an employee of a trust company took $473,000 from vulnerable clients, over a five and a half year period.   There
were 10 charges of theft by a person in a special relationship. The

5	Rana v R [2014] NZCA 468 at [16].
6	Mount v R [2015] NZCA 489.
7	McGregor v R [2015] NZCA 565.

Court of Appeal considered that a five year starting point was appropriate.

(c)       In Mears v R,8 the offender stole $380,000 from a small business, by a series of separate transactions.  Letters were forged.  There were five charges – including three of theft by a person in a special relationship. The Court of Appeal upheld a starting point of four years and six months.

(d)       In R v Davis,9  an offender used a moderately sophisticated system to take $278,000 from her employer’s account, over a period of five years.  Following a police investigation, she voluntarily repaid some
$88,000 but without admitting liability.  There were five charges.  A starting  point  of  four  years’ imprisonment  was  considered  within range.

(e)       In Bayly v R,10  a director and shareholder of a company failed to account to the company for monies received in the course of its business over an 18 month period.  There were 50 charges.  The total amount misappropriated was $317,000. A starting point of three years was considered lenient.

(f)       In Helsby-Knight v R,11 the offender used fraudulent schemes to take some $157,000 from various victims.  There were three representative charges.  The Court of Appeal considered that a starting point of three years and six months was at the lower end of the available range.

[47]     Here, Judge Gibson adopted a starting point of four years for the charges of theft  by a  person in  a  special  relationship.   That  starting  point  was  within  the available range.  The Judge then applied an uplift of 18 months for the remaining
charges.   Again that uplift was appropriate, and within the available range.   The

8	Mears v R [2014] NZCA 30.
9	R v Davis [2009] NZCA 26.
10	Bayly v R [2013] NZCA 520.
11	Helsby-Knight v R [2015] NZCA 315.

overall starting point of five and a half years’ imprisonment was stern, but not beyond the pale.  Mr Kiro received a discount of just under 20 per cent for his guilty pleas. Those guilty pleas were entered at a relatively early opportunity, but not at the earliest opportunity.  Judge Gibson also observed that the offending would not have been particularly difficult to prove.   The discount was appropriate, and within the Judge’s discretion.

[48]     The end sentence was one of four years and six months’ imprisonment.  A reparation order was imposed in addition. As I have noted it required Mr Kiro to pay back some of the monies which he had stolen from others.  For the reasons I have set out  above,  it  did  not  justify  a  further  discount.     The  minimum  period  of imprisonment was also appropriate.  Mr Kiro’s offending was cynical and calculated. It involved a large number of vulnerable victims.  The nature of the offending, and the effect it had on the victims, required denunciation, and the requirements of s
86(2) of the Sentencing Act were met.

[49]     In my judgment, the sentence imposed by the Judge was not manifestly excessive.

[50]     The appeal is dismissed.

Wylie J