ORDER THAT NEITHER THE HIGH COURT NOR THE COURT OF APPEAL FILES BE SEARCHED WITHOUT THE LEAVE OF A JUDGE OF THIS COURT OR A JUDGE OF THE HIGH COURT. IN THE COURT OF APPEAL OF NEW ZEALAND CA346/2012 [2012] NZCA 417 BETWEEN PETER DAVID STEIGRAD Appellant AND THE QUEEN Respondent Hearing: 22 and 23 August 2012 Court: White, Heath and Fogarty JJ Counsel: B P Keene QC and M E Cole for Appellant B H Dickey and T M Molley for Respondent Judgment: 24 August 2012 Reasons: 10 September 2012 at 2.00 pm JUDGMENT OF THE COURT A The appeal against sentence is dismissed. B Mr Steigrad is to report to the Community Probation Service no later than 2 pm on Wednesday 29 August 2012 to resume his sentence of home detention. C Neither the High Court nor the Court of Appeal files are to be searched without the leave of a Judge of this Court or a Judge of the High Court. ____________________________________________________________________ REASONS OF THE COURT (Given by White J) STEIGRAD V R COA CA346/2012 [24 August 2012] Introduction [1] After a nine week Judge alone trial before Venning J in the High Court at Auckland, Mr Steigrad was convicted on six charges of contravening s 58 of the Securities Act 1978 (misstatement in an advertisement or registered prospectus). 1 He was found not guilty on four other charges. Mr Steigrad was a non-executive director of the failed finance companies, Bridgecorp Ltd and Bridgecorp Investments Ltd. Both companies distributed prospectuses that became the subject of charges against Mr Steigrad. For the purposes of this appeal, the companies can be referred to simply as Bridgecorp. [2] Mr Steigrad was subsequently sentenced for the convictions by Venning J to nine months’ home detention with 200 hours’ community service and $350,000 reparation.2 Mr Steigrad, an Australian citizen resident in Sydney, commenced his home detention sentence at an address in Auckland on 21 May 2012. [3] By notice of appeal dated 14 June 2012 Mr Steigrad appealed against his sentence of nine months’ home detention and 200 hours’ community work. He did not appeal against his convictions or the order for reparation. [4] By virtue of the operation of s 399(3) of the Crimes Act 1961, Mr Steigrad’s home detention sentence was suspended from the date of his notice of appeal and no question of bail arose pending the determination of the appeal.3 For some unexplained reason, however, he remained on home detention until 6 July 2012 when he was released by the Community Probation Service. [5] Mr Steigrad then returned to Sydney to be with his ill wife and subsequently, without the consent of the Crown or the approval of either the High Court or this Court, travelled with his wife to Europe to attend their daughter’s wedding. Mr Steigrad was consequently in Europe at the time of the hearing of his appeal. 1 2 3 R v Petricevic [2012] NZHC 665 (reasons for verdicts). R v Roest [2012] NZHC 1086 (sentencing notes). Vu v Ministry of Fisheries SC 101/2010, 20 October 2010; and Hannigan v R CA639/2011, 30 September 2011. [6] In the course of the hearing of the appeal on 22 August 2012 it became apparent to the Court that the grounds of his appeal were not established. The Court also discovered at the hearing that Mr Steigrad was in Europe and was not planning on returning to Sydney until mid-September 2012. This meant that if his appeal was dismissed he would not be able to resume his sentence of home detention from the date of dismissal as required by s 399(4) of the Crimes Act and he would consequently be liable for prosecution for an offence under s 80S of the Sentencing Act 2002. [7] For these reasons we issued a minute after the hearing on 22 August 2012 summarising the background and indicating our view as to the outcome of the appeal.4 We then said: [11] In these circumstances this Court wishes to hear further from counsel tomorrow at 2.15 pm on the following matters: [8] (a) the basis on which Mr Steigrad decided not to be present in the jurisdiction for the hearing of his appeal; (b) the date on which Mr Steigrad will return to New Zealand; and (c) whether, in light of these developments, this Court should: (i) increase the term of home detention imposed; (ii) substitute a sentence of imprisonment for the term of home detention; (iii) fix a date other than the date of dismissal of the appeal for the resumption of the sentence of home detention. At the resumed hearing of the appeal on 23 August 2012, Mr Keene QC, counsel for Mr Steigrad, accepted that his client was absent from the jurisdiction without Court approval, but explained that his client had acted on legal advice and without knowledge of the effect of s 399(4) of the Crimes Act and s 80S of the Sentencing Act, or the practices of this Court in respect of the timing of the delivery of its decisions in sentencing appeals. Mr Keene opposed any change to the sentence imposed by the High Court and asked this Court to exercise its discretion under 4 Steigrad v R CA346/2012, 22 August 2012. s 399(4) of the Crimes Act5 to enable Mr Steigrad to resume his sentence of home detention on Wednesday 29 August 2012, being the earliest date on which it was anticipated he would be able to return from Europe to New Zealand to do so. [9] Mr Dickey for the Crown did not seek an uplift in the sentence for Mr Steigrad. Nor did Mr Dickey oppose the application for the exercise of the discretion under s 399(4) of the Crimes Act to enable Mr Steigrad to return to New Zealand to resume his home detention sentence on that date. [10] Having given further consideration to the submissions for the parties, we issued the judgment of the Court on 24 August 2012 dismissing Mr Steigrad’s appeal against sentence and ordering him to report to the Community Probation Service no later than 2 pm on Wednesday 29 August 2012 to resume his sentence of home detention.6 [11] We indicated that the reasons for our decision would follow. These are those reasons. Background [12] For reasons which will become apparent when we address the three grounds of appeal raised by Mr Steigrad we are able to summarise the background relatively briefly on the basis of Venning J’s reasons for verdicts and sentencing notes. [13] From 21 December 2006 offer documents relating to Bridgecorp contained a number of untrue statements. Subsequent to that date other statements became untrue. From 7 February 2007 Bridgecorp regularly started to miss payments of interest and principal due to investors. [14] On 30 March 2007 Bridgecorp registered prospectus extension certificates. The certificates were signed on behalf of the directors of Bridgecorp, including Mr Steigrad. 5 6 Bridgecorp was placed into receivership on 2 July 2007. Fenemor v R [2011] NZSC 127, [2012] 1 NZLR 298 at [24]. Steigrad v R [2012] NZCA 387. It had approximately $459 million of secured debenture stock outstanding to approximately 14,500 debenture holders. Investors are likely to recover less than 10 cents in the dollar. [15] Mr Steigrad was convicted on six charges under s 58 of the Securities Act, which provides: 58 Criminal liability for misstatement in advertisement or registered prospectus (1) Subject to subsection (2) of this section, where an advertisement that includes any untrue statement is distributed,— (a) The issuer of the securities referred to in the advertisement, if an individual; or (b) If the issuer of the securities is a body, every director thereof at the time the advertisement is distributed— commits an offence. (2) No person shall be convicted of an offence under subsection (1) of this section if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the advertisement, believe that the statement was true. (3) Subject to subsection (4) of this section, where a registered prospectus that includes an untrue statement is distributed, every person who signed the prospectus, or on whose behalf the registered prospectus was signed for the purposes of section 41(1)(b) of this Act, commits an offence. (4) No person shall be convicted of an offence under subsection (3) of this section if the person proves either that the statement was immaterial or that he or she had reasonable grounds to believe, and did, up to the time of the distribution of the prospectus, believe that the statement was true. (5) Every person who commits an offence against this section is liable— (a) on conviction on indictment to— (i) imprisonment for a term not exceeding five years; or (ii) a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued; or (b) [16] on summary conviction to— (i) imprisonment for a term not exceeding three months; or (ii) a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued. Mr Steigrad had been charged with 10 counts of contravening s 58. Venning J found, however, that between 21 December 2006 and 7 February 2007 Mr Steigrad believed, and had reasonable grounds to believe, that the statements in the prospectuses were true.7 Accordingly, Mr Steigrad was acquitted on four of the charges that related to prospectuses issued between 21 December 2007 and 7 February 2007. On the charges relating to times after 7 February 2007, however, Venning J found that although Mr Steigrad believed the relevant statements in the prospectuses to be true, reasonable grounds for that belief did not exist.8 [17] Also relevant to the sentencing was the fact that Mr Steigrad’s wife suffers from an illness that requires significant care. Mr Steigrad was her primary carer. Sentencing in the High Court [18] Venning J assessed Mr Steigrad’s culpability as follows: [57] I accept there is force in relation to that in the Crown submission that given the information you had, and particularly with reference perhaps to the email of 29 March, your failure to act in response to that was either bordering on considerable negligent (sic), or if you failed to consider it at all, would equally be bordering on gross negligence. [58] However, Mr Steigrad, in my judgment your culpability rests on your failure to perform the statutory duties and functions cast on you as a director. You had a duty to form your own opinion on the accuracy, or otherwise, of the prospectus statements through the course of the prospectuses being before the public … [19] Venning J considered that the most helpful similar cases were the sentencing of Mr Davidson,9 another Bridgecorp director, and the sentencing of the directors of 7 8 9 Reasons for verdicts, above n 1, at [415]–[419]. At [435]–[454]. R v Davidson HC Auckland CRI-2008-004-29179, 7 October 2011. Nathan’s Finance in R v Moses.10 Venning J noted that Andrews J had taken a starting point of three years three months’ imprisonment for Mr Davidson.11 Because Mr Steigrad’s offending spanned a shorter period than Mr Davidson’s, Venning J accepted, however, that Mr Steigrad was “slightly” less culpable than Mr Davidson.12 [20] Venning J also noted that in the Nathan’s Finance case, for the least culpable director, Mr Young, the Court had taken a starting point of two years nine months’ imprisonment.13 Venning J rejected a submission for Mr Steigrad that it was significant that Mr Young, unlike Mr Steigrad, had never had reasonable grounds for belief that statements in the relevant prospectuses were true. Venning J considered that although the fact that Mr Steigrad did initially have reasonable grounds for his belief in the truth of the statements in the prospectuses was relevant to the duration of the offending, it did not lead to a reduction in culpability for the periods during which the Court held Mr Steigrad did fail in his obligations as a director.14 [21] Venning J distinguished Mr Steigrad’s case from that of the directors of Lombard Finance where sentences of community work only were imposed on the basis that the misstatements in relation to Bridgecorp were “more stark and significant” than those in relation to Lombard Finance.15 [22] Having considered the comparable cases, Venning J arrived at a starting point of three years’ imprisonment.16 [23] Venning J took the following personal circumstances into account by way of mitigation: (a) 10 11 12 13 14 15 16 17 Mr Steigrad had no criminal record;17 At [58] citing R v Moses HC Auckland CRI-2009-004-1388, 2 September 2011. At [58]. At [58]. At [59]. At [59]. At [61]. See also R v Graham [2012] NZHC 575. At [62]. At [64]. (b) Mr Steigrad had an extensive record of community service;18 (c) Mr Steigrad had accepted his role in the offending and shown genuine remorse;19 (d) Mr Steigrad was taking steps to settle the civil proceedings arising out of the Bridgecorp collapse;20 (e) reparation of $350,000 was proposed;21 and (f) Mr Steigrad’s personal and family circumstances, which would make a sentence of imprisonment “more harsh on [him], and particularly [his] family than it would be for a New Zealand citizen”.22 [24] Venning J reduced the sentence from the starting point by 15 per cent for previous good character and by a further five months for Mr Steigrad’s remorse and reparation.23 In light of his personal and family circumstances, the Judge considered a total discount of one third of the starting point was justified, resulting in a sentence of two years’ imprisonment.24 The Judge held that a sentence of community work was not appropriate as the Bridgecorp offending as a whole, as well as Mr Steigrad’s degree of culpability, was more serious than that of the directors in Lombard where sentences of community work were imposed.25 The Judge did consider, however, that home detention was appropriate.26 Venning J held that, taking into account Mr Steigrad’s personal situation and family obligations as much as he could, a sentence of nine months’ home detention and 200 hours’ community work was appropriate.27 18 19 20 21 22 23 24 25 26 27 At [64]–[65]. At [65] and [67]. At [66]. At [67]. At [68]. At [65] and [68]. At [69]. At [70]. At [71]–[72]. At [72]–[75]. Appeal against sentence [25] The grounds of appeal were that the sentence imposed by Venning J was manifestly excessive because: (a) the Judge made errors of fact in sentencing; (b) the sentence was disparate when compared to other similar cases; and (c) the Judge failed to adequately take into account humanitarian considerations. [26] It was submitted for Mr Steigrad that the sentence ought to have been one of community work and reparation only. [27] We will consider the three grounds of appeal in turn. Alleged errors of fact [28] The first ground of appeal was based on allegations of factual errors by Venning J in his reasons for verdicts convicting Mr Steigrad and not on factual errors in the sentencing decision. [29] In the absence of an appeal against conviction, however, it was not open to Mr Steigrad to challenge on a sentence appeal the factual findings in the reasons for verdicts. That is because s 24(1)(b) of the Sentencing Act provides that for the purposes of sentencing the Court: must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt. [30] In the face of this statutory provision, Mr Keene accepted that he was not in a position to pursue the first ground of appeal which must therefore fail. Disparity [31] The second ground of appeal was based on submissions for Mr Steigrad that he was considerably less culpable than his fellow directors, especially the Bridgecorp Chairman, Mr Davidson, and the directors involved in the Nathan’s Finance28 and Lombard cases.29 Mr Keene submitted in particular that Mr Steigrad should have received a lower starting point than Mr Davidson because: (a) the duration of Mr Davidson’s offending was longer and involved a higher level of culpability (Mr Steigrad was convicted for offending lasting only half the time and involving only half of the alleged untruths for which Mr Davidson was convicted); (b) Mr Davidson had obligations as Chairman of Bridgecorp; (c) Mr Davidson ignored warnings about a related party transaction (the Barcroft transaction); (d) Mr Davidson never had reasonable grounds for his honest belief that statements in the prospectuses were true; and (e) Mr Davidson did not advise Covenant Trustee Company Ltd (the Trustee) when he was told of historic failures to make payments and when he was advised that Bridgecorp was actively in default in payments to investors. [32] It was submitted for Mr Steigrad that his sentence and Mr Davidson’s sentence were disparate and that the Judge erred in finding that Mr Steigrad was “slightly” less culpable than Mr Davidson because: (a) 28 29 Mr Steigrad was the least culpable of all the directors. R v Moses, above n 10. R v Graham, above n 15. (b) While Mr Davidson received a 35 per cent reduction for good character, remorse, reparation and co-operation as well as a further 20 per cent discount for a late guilty plea, Mr Steigrad only received a total discount of 33 per cent. The comparatively low discount could not be justified given that in addition to demonstrating good character and remorse, offering reparation and co-operating with the Bridgecorp receivership, Mr Steigrad was in a position of particular hardship given his family circumstances and the fact that he was not a New Zealander. (c) Mr Steigrad received no credit for being acquitted on four of the ten counts, which meant that the offending for which he was convicted covered half of the duration of Mr Davidson’s offending and only around one third of the particulars the Judge found proved against Mr Davidson. [33] We accept that consistency of sentencing is a mandatory requirement of the Sentencing Act as s 8(e) provides that when sentencing an offender the court: must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances … [34] We also accept that the test for whether disparity exists is as set out in R v Lawson:30 ... whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice. [35] This test is explained further in Macfarlane v R31 where it was said: The difference must be “unjustifiable” or “gross”. A lenient or unusually merciful sentence extended to one offender cannot create an expectation that other offenders will receive the same indulgence. 30 31 R v Lawson [1982] 2 NZLR 219 (CA) at 223; and see also Eketone-Mahara v R [2011] NZCA 71 at [19]. Macfarlane v R [2012] NZCA 317 at [24]. [36] Here we are satisfied that there are good reasons for not giving as much weight to the differences between Mr Davidson and Mr Steigrad as the submissions for Mr Steigrad seek. [37] First, it is important to recognise that unlike Mr Steigrad Mr Davidson pleaded guilty to the charges for which he was sentenced. Mr Davidson did so on the basis of an agreed summary of facts, which was settled prior to his guilty pleas and prior to the completion of the Crown’s preparation for the trial of the Bridgecorp directors who had not pleaded guilty. This meant that Mr Davidson received not only the benefit of the 20 per cent discount for his guilty plea but also a sentence based on a summary of facts that was more favourable than Venning J’s reasons for verdicts that Mr Steigrad had to accept as the basis for his sentencing. Any leniency accorded to Mr Davidson for these reasons was therefore not available to Mr Steigrad. [38] Second, it was not open to Mr Steigrad to rely on factual differences between his position and Mr Davidson’s position which were not specifically mentioned in the summary of facts to which Mr Davidson pleaded guilty. In particular, Mr Davidson was not sentenced on the basis that he ignored warnings about the Barcroft transaction or that he failed to advise the Trustee of defaults on Bridgecorp’s part.32 [39] Nor was it open to Mr Steigrad to seek a “credit” for charges on which he was acquitted. The fact that Mr Steigrad may have been prepared to plead guilty to certain charges prior to trial was of no benefit when he did not in fact do so but instead went to trial on the basis of his not guilty pleas. We do not accept the submission for Mr Steigrad that it is “against public policy to reward proper guilty pleas but then fail to reward appropriately entered pleas of not guilty when an accused is found justified to have done so”. [40] The short point is that Mr Steigrad was sentenced for the charges on which he was found guilty. It was always open to him to plead guilty to those charges he 32 R v Davidson, above n 9, at [13]. accepted and to contest those he did not. Had Mr Steigrad taken that course, he would have been entitled to some credit for the guilty pleas. But he did not do so. [41] We also reject the disparity submissions for Mr Steigrad on the following grounds: (a) Mr Steigrad was temporarily chair of Bridgecorp between 16 April and mid-June while Mr Davidson was on holiday. Mr Steigrad was therefore Chairman during a critical period. Moreover, he was on notice of Bridgecorp’s serious financial position and failed to ensure a board meeting was held in May 2007. (b) Venning J’s findings indicate that Mr Steigrad’s failure to act was bordering on considerable or gross negligence. In R v Moses Heath J noted that in cases of gross negligence a starting point of three years’ imprisonment was not inappropriate.33 (c) Although the Judge found fewer of the particulars proved against Mr Steigrad than were proved against Mr Davidson, the particulars proved against Mr Steigrad were significant in that if investors had been advised that Bridgecorp was running out of money and missing payments of interest and principal it is unlikely the public would have invested in Bridgecorp. [42] We agree with the submission for the Crown that the most relevant sentencing decision is R v Moses where there were similar findings of negligence. Given that a starting point of three years three months’ imprisonment was approved by this Court in that case and said to possibly be lenient,34 a starting point of three years’ imprisonment for Mr Steigrad was well within the range open to Venning J. [43] We also agree with the submissions for the Crown that Mr Steigrad’s offending is significantly more serious than that of the directors in the Lombard case because of: 33 34 R v Moses, above n 10, at [48]. Doolan v R [2011] NZCA 542 at [43]. (a) the nature of the untrue statements; (b) the amount of funds received on the basis of the misleading offer documents (Mr Steigrad acknowledged that $15.44 million was accepted from the public for new lending in the period March to June 2007 and that the charges and particulars proved against him involved $54.07 million of rolled over funds); and (c) the culpability of Mr Steigrad being at the level of considerable or gross negligence. [44] We therefore do not consider that the difference between the starting point of three years’ imprisonment adopted by Venning J for Mr Steigrad and the starting point of three years three months’ imprisonment adopted for Mr Davidson was unjustifiable or gross. The difference was not so marked that a “reasonably minded independent observer aware of all the circumstances” would “think that something had gone wrong with the administration of justice”. The second ground of appeal must therefore also fail. Humanitarian grounds [45] The third ground of appeal was based on submissions for Mr Steigrad as to the severe impact the sentence has so far had on Mrs Steigrad which it was said justified a reduction of the sentence on the basis that insufficient weight had been given to the appellant’s personal circumstances. It was submitted, relying on R v Wilson,35 that given the deterioration in Mrs Steigrad’s condition since the commencement of Mr Steigrad’s home detention sentence, Mr Steigrad should be allowed to care for her. [46] It was also submitted for Mr Steigrad that in his circumstances the sentence of home detention had resulted in a much more severe punishment than would usually be the case for someone sentenced to home detention. Mr Steigrad was continually worried about his wife’s condition, but unable to assist her and was 35 R v Wilson CA 171/84, 9 November 1984. isolated given he was not from New Zealand and had no local friends to visit him. The continual worry and isolation had resulted in him becoming depressed. [47] In support of these submissions further evidence was provided by Mrs Steigrad, her doctor and their daughter. The evidence indicated that Mrs Steigrad’s health had deteriorated further and that she was not able to travel to New Zealand to be with her husband while he served his sentence of home detention or to travel on her own to Europe. [48] The difficulty with these submissions for Mr Steigrad was that whatever sympathy the Court might have had for his predicament, arising in particular from his understandable concern for his wife’s medical condition, it was undermined when the Court discovered at the hearing of the appeal that not only had he left for Europe before the hearing without Court approval and was not planning to return until mid-September but also that, notwithstanding his wife’s medical condition, she had been able to travel with him to Europe for a relatively extended visit. [49] It also emerged during the resumed hearing of the appeal on 23 August 2012 that there had been communications between counsel for the parties on 6 July 2012 in which counsel for Mr Steigrad had disclosed that: 11. Mr Steigrad’s current intention will be to travel back to his home in Mossman, Sydney and remain there with his wife until the last week of August when he plans to travel with his wife to the UK and Europe. This is for the purposes of his daughter’s wedding and meeting (for the first time) the in-laws. He would propose to return to Sydney sometime in the weekend of 15/16 September and, depending upon the outcome of the appeal resume the balance of his sentence at that time. ... 14. [50] In view of Mr Steigrad’s travel plans I would like your consent or non-opposition to the Court of Appeal’s decision being held until 17 September 2012 with it commencing three business days thereafter to allow him to return to New Zealand. There may be a further issue about place of detention as he may have to give up his present address. Counsel for the Crown replied by email of the same date stating that he would not “consent” to Mr Steigrad’s proposed “UK travel”. [51] Notwithstanding Mr Steigrad’s apparent intentions at the time and the Crown’s response, they were not disclosed to the Court by his counsel in his memorandum of 6 July 2012 seeking an urgent fixture for the hearing of this appeal in the week of 20 August 2012. At that time it was apparently intended that the hearing of the appeal would precede Mr Steigrad’s departure for Europe. [52] As we have already mentioned, Mr Keene accepted that his client had travelled to Europe before the hearing of his appeal without Court approval. Mr Steigrad may have done so on legal advice – a factor that we take into account later on the issue of the date of resumption of the sentence of home detention – but he could not have expected this Court to view his action with equanimity when it left the impression that he was endeavouring to pre-empt the decisions of this Court as to the outcome of his appeal and, if it were unsuccessful, the date of the resumption of his sentence. To permit a person who has been convicted of serious criminal offences to appear to manipulate the processes of the Court in this way would undermine public confidence in the administration of justice in this country. [53] We also agree with Mr Dickey’s submission that Mr Steigrad’s action in travelling to Europe at this time was inconsistent with his claims of remorse and contrition in respect of the Bridgecorp investors who lost substantial sums of money as a result of his failures as a director of the companies. [54] Nor are we now able to give as much credence to the evidence relating to Mrs Steigrad and her medical condition as we might otherwise have done if she had not travelled to Europe. [55] In these circumstances, we are not persuaded that Venning J’s assessment of the credit for mitigating factors that included humanitarian grounds was wrong. Indeed, in the circumstances now disclosed to us, the credit could be seen as generous. [56] The third ground of appeal must therefore also fail. Variation of High Court sentence? [57] As indicated in our minute of 22 August 2012, we heard further from counsel on whether, in light of the developments to which we have referred, we should increase the term of home detention imposed by the High Court or substitute a sentence of imprisonment for the term of home detention. We had power to do so by virtue of s 385(3) of the Crimes Act if we thought that a different more severe sentence should have been passed in this case. [58] At the hearing on 23 August 2012, Mr Keene opposed any suggestion that the sentence imposed by the High Court should be varied in any way. He referred to the proviso to s 389 of the Crimes Act, which precludes this Court from increasing a sentence by reason or in consideration of any evidence that was not given at the trial. Instead Mr Keene asked the Court to exercise its discretion under s 399(4) of the Crimes Act to postpone the resumption of the sentence to Wednesday 29 August 2012, being the date by which it was anticipated Mr Steigrad would be able to return from Europe to New Zealand. [59] Mr Dickey did not seek an uplift in Mr Steigrad’s sentence. The Crown had not appealed against the High Court sentence and did not consider another sentence was necessary. The Crown did not oppose the application by Mr Steigrad for a postponement of the resumption of sentence to enable him to return to New Zealand. [60] We have given consideration to increasing Mr Steigrad’s sentence on the ground that the discount he was given for remorse was overly generous, but in view of the submissions for the Crown, we accept that the High Court sentence should not be varied. [61] In reaching this conclusion we do not overlook Mr Keene’s submission that Mr Steigrad should have been given “a credit” for the three weeks he served on home detention after his appeal was filed, that is from 14 June to 6 July 2012. In our view, however, it is not appropriate to take that period into account when considering whether to vary Mr Steigrad’s sentence. It is an administrative matter that Mr Steigrad may raise with the Community Probation Service and then, if necessary, with the High Court.36 Date of resumption of sentence [62] When an appeal against a sentence of home detention is dismissed, s 399(4) of the Crimes Act provides that the sentence is to be resumed from the date of dismissal of the appeal and a person who does not then comply with the detention conditions will be liable for prosecution for breach of s 80S of the Sentencing Act. On the basis of the Supreme Court decision in Fenemor v R,37 we accept, as did the parties, that the Court has a discretion to postpone the date of the resumption of the sentence taking into account the circumstances of the particular case. [63] In this case we decided that we should exercise the discretion to postpone the date of the resumption of the sentence of home detention for Mr Steigrad to enable him to return from Europe to New Zealand by Wednesday 29 August 2012 and thereby avoid the risk of a prosecution for an offence under s 80S of the Sentencing Act. We decided to do so for two reasons: (a) it appears that Mr Steigrad may have travelled to Europe prior to the hearing of the appeal in reliance in good faith on erroneous legal advice which did not take into account s 399(4) of the Crimes Act, s 80S of the Sentencing Act or the timing of delivery of decisions of this Court in appeals against sentences of this nature; and (b) contrary to s 399(3) of the Crimes Act, he remained on home detention for some three weeks after his notice of appeal against sentence had been filed. Result [64] These are the reasons for our judgment of 24 August 2012 dismissing the appeal against sentence and ordering Mr Steigrad to report to the Community 36 37 Geoffrey G Hall Halls Sentencing (online looseleaf ed, LexisNexis) at [SA80F.2] and Case v R [2012] NZCA 518 at [11]. Fenemor v R, above n 5. Probation Service no later than 2 pm on Wednesday 29 August 2012 to resume his sentence of home detention. [65] In order to protect the privacy of Mrs Steigrad, we make an order that neither the High Court nor the Court of Appeal files be searched without the leave of a Judge of this Court or a Judge of the High Court. Solicitors: Lowndes Jordan, Auckland for the Appellant Crown Solicitor, Auckland for the Respondent
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