Andrews v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeMander J
Judgment Date31 August 2021
Neutral Citation[2021] NZCA 412
Docket NumberCA352/2019

[2021] NZCA 412

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

Gilbert, Mander and Hinton JJ

CA352/2019

Between
Raymond Anthony Andrews
Appellant
and
The Queen
Respondent
Counsel:

M J Taylor-Cyphers for Appellant

Z R Johnston and M R L Davie for Respondent

Companies, Criminal Sentence, Law Practitioners — appeal against a conviction for breaching the conditions of his bankruptcy and fraudulent conduct and sentence of six and a half years imprisonment — trial counsel competence — quantum of loss when assessing starting point — Companies Act 1993 — Sentencing Act 2002

The issues were: whether A's trial counsel failed to prepare adequately and advance his defence in accordance with his instructions and whether the sentence was manifestly excessive.

The Court held that none of the grounds, either individually or in combination, had resulted in a miscarriage of justice. The failure to prepare a brief of evidence and inadequate cross-examination either alone or together, gave rise to any real risk of a different outcome, nor, that A had not received a fair trial.

The Judge had not erred in his approach to estimating the size of the loss caused by A's offending. The Crown estimated losses at NZ $700,000. The Judge had acknowledged that the extent of the loss and harm caused by A was difficult to determine accurately, but he considered that significant harm had been caused and put the losses in the vicinity of NZ $500,000. In the absence of an agreed figure, it was for the Judge to assess the harm caused by the offending based upon the trial evidence. The Judge had not erred in imposing a six-year starting point. An important aggravating aspect was that the offending was committed while he was trading as a bankrupt person. The quantum of loss was only one element of sentencing for fraud offending. In addition to substantial loss, other aggravating features that demonstrated A's high level of culpability were present, including the duration and breadth of his offending as an undischarged bankrupt.

The appeals were dismissed.

  • A The appeal against conviction is dismissed.

  • B The appeal against sentence is dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Mander J)

1

Following a jury trial in the District Court at Auckland, Raymond Andrews was convicted on various charges of breaching the conditions of his bankruptcy and fraudulent conduct. Mr Andrews appeals his convictions. He alleges that his trial counsel failed to prepare adequately and advance his defence in accordance with his instructions and this resulted in a miscarriage of justice. In support of his appeal, Mr Andrews also alleges that trial counsel failed to prepare a brief of evidence, to discharge his duties of cross-examination and gave an inadequate closing address, together with a series of subsidiary complaints relating to the conduct of his counsel.

2

Mr Andrews was sentenced by Judge D J Sharp on 2 July 2019 to a term of six and a half years' imprisonment. 1 He appeals that sentence primarily on the basis that it was manifestly excessive.

Background
2008 bankruptcy
3

On 21 April 2008, Mr Andrews was adjudicated bankrupt by the High Court. As a result, he was obliged to notify the Official Assignee of changes to his income and employment and to disclose all property in his possession. He was also prohibited from managing a business or being a company director without the consent of the court or the Official Assignee.

2013 prohibition on being involved in the management of companies
4

In February 2013, Mr Andrews was convicted of dishonesty offending and offences against the Insolvency Act 2006. 2 Mr Andrews was sentenced to 15 months' imprisonment for this offending. 3 Because of that offending, the Registrar of Companies notified Mr Andrews on 28 March 2013 that he was prohibited from being involved directly or indirectly in the management of a company for five years without the consent of the court. 4

The present offending
Taking part in the management of a business whilst prohibited (charge 1)
5

Mr Andrews was charged with taking part in the management of a company over a three year period between February 2014 and June 2017 whilst prohibited from doing so without the leave of the court. 5 The particulars of that charge alleged that between 28 February 2014 and 25 November of that year he took part in the management of the business of Max Imports Ltd, and that between 2 October 2015 and about 30 June 2017 he took part in the management of Maxium Pty Ltd (Maxium). Both companies were involved in the importation of vehicles into New Zealand from Australia. Mr Andrews was found guilty of this representative charge.

6

His conviction on this charge was in addition to earlier charges of participating in the management or control of companies involved in the same activity that arose from a separate prosecution to which he pleaded guilty in 2017. 6

Taking part in the management of a New Zealand vehicle import business while bankrupt without the consent of the Official Assignee (charge 2 and, in the alternative, charge 3)
7

Maxium is an Australian-based company that purchases vehicles in Australia (often insurance write-offs) and exports them to New Zealand where they are repaired, certified and on-sold. This business is owned by Mr Andrews' son, Robert. It was alleged that between October 2015 and June 2017 Mr Andrews was also involved in the business of importing, repairing and selling vehicles from Australia. It was the Crown's case that Mr Andrews represented that his business was part of or affiliated with Maxium. Robert denied that was the case.

8

Evidence of Mr Andrews' involvement in Maxium's business of importing and selling vehicles was provided by companies that were engaged to repair and certify these vehicles, and by individuals who purchased them from Mr Andrews.

Between December 2015 and September 2016, Mr Andrews arranged for a number of imported vehicles to be repaired by a company called Total Auto Therapy Ltd. Twenty-one invoices were purportedly issued to Maxium for this work but the company dealt exclusively with Mr Andrews. Between January 2016 and August of that same year, Mr Andrews also arranged for vehicles to be certified at a business called Drivesure Vehicle Testing. It carried out work on seven vehicles, again purportedly for Maxium, but dealt only with Mr Andrews in respect of those vehicles
9

Between October 2015 and April 2016, Mr Andrews sold vehicles to a number of individuals who gave evidence of personally dealing with Mr Andrews and receiving invoices from him for the purchase price. Details on the invoices included Mr Andrews' address (described as the New Zealand Sales Office for Maxium) and his ANZ bank account (the ANZ account). Between October 2015 and March 2016, Vishal Rishi purchased 12 vehicles from Mr Andrews for a total price of $435,500 and paid $290,500 into the ANZ account. Jonathan Prentice described purchasing a vehicle for $28,500 and paying a 50 per cent deposit into the ANZ bank account on 30 March 2016. In March 2016, Trevor Strange placed an order with Mr Andrews for a BMW motor vehicle and received an invoice from him for payment of $37,500, and in April entered into a similar transaction with Mr Andrews for a motorbike in respect of which he received an invoice for $14,900. In November 2015, Scott Wilson purchased four Grand Cherokee vehicles and a Mercedes Benz from Mr Andrews for a total price of $183,000, and made payments to the ANZ account (following initial payments to Robert's account).

10

The Official Assignee was unaware of Mr Andrews' involvement in this business and did not consent to it, nor had Mr Andrews sought the court's consent to be involved in this business. At trial, Mr Andrews was found guilty of a charge of taking part in the management of a business that imported, repaired and sold motor vehicles whilst bankrupt without the consent of the Official Assignee (charge 3). 7 This charge was laid as an alternative to charge 2, which alleged the same conduct but that it had involved Mr Andrews taking part in the management of the business of Maxium (charge 2). The jury did not find Mr Andrews guilty of charge 2. 8

Forgery charges in relation to vehicle import business (charges 8–21 and 26–35)
11

Mr Andrews was also convicted of making and using forged documents in relation to the sales of imported vehicles. 9 He created and used invoices purporting to be from Maxium but which listed Mr Andrews' own ANZ bank account details for the purpose of payment. The invoices also falsely represented that Maxium was a licensed motor vehicle dealer (LMVD) in New Zealand, and were sent to buyers for payment with incorrect vehicle identification numbers (VINs), which the Crown maintained was to prevent them from being traced. Many of the victims made multiple purchases and sustained losses as a result of Mr Andrews either not supplying the vehicles which he had promised or supplying inferior vehicles in poor condition. 10

Wilfully misleading the Official Assignee (charge 5)
12

Unbeknownst to the Official Assignee, Mr Andrews operated three bank accounts. The ANZ account was opened in October 2015 by Mr Andrews in his name. Mr Andrews operated the account over a number of years. His daughter, Alexandra Andrews, did not access it. Between October 2015 and June 2017, Mr Andrews also operated a Kiwibank bank account that was in the name of his daughter but to which he had access and that she never used. There was also a Westpac bank account into which Mr Andrews received his superannuation payments.

13

When examined by the Official Assignee on 31 May 2016, Mr Andrews said he had not opened any new bank accounts and stated he was only “using the bank accounts you think I have”. He did not disclose the ANZ, Westpac or Kiwibank accounts. As a result, he was found...

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