w w w . L a w y e r S e r v i c e s . i n



Kelvin Clive Wood v/s The Queen


Company & Directors' Information:- WOOD INDIA PVT LTD [Active] CIN = U20211AS1980PTC001819

Company & Directors' Information:- R J WOOD AND CO PVT LTD [Active] CIN = U20219DL1931PTC000245

Company & Directors' Information:- WOOD (INDIA) PVT LTD [Under Process of Striking Off] CIN = U20221OR1983PTC001171

Company & Directors' Information:- QUEEN WOOD PRIVATE LIMITED [Strike Off] CIN = U51431DL2014PTC270475

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 439 of 2019

    Decided On, 11 March 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE CLIFFORD
    By, THE HONOURABLE MR. JUSTICE SIMON FRANCE & THE HONOURABLE MR. JUSTICE LANG

    For the Appellant: K.H. Maxwell, Advocate. For the Respondent: M.R.L. Davie, M.K. Thomas, Advocates.



Judgment Text


REASONS OF THE COURT

(Given by Lang J)

[1] Mr Wood pleaded guilty in the District Court to representative charges of obtaining money by deception[1] and theft by a person in a special relationship.[2] On 24 July 2019, Judge Ronayne sentenced Mr Wood to six years and three months’ imprisonment on those charges.[3] He also made an order under s 86 of the Sentencing Act 2002 requiring Mr Wood to serve two years and 11 months of his sentence before being eligible to apply for parole.

[2] Mr Wood appeals against sentence on the basis that the Judge adopted an overall starting point that was too high and failed to give him adequate discount for mitigating factors. He contends this resulted in a sentence that was manifestly excessive. Mr Wood also contends the Judge erred in imposing a minimum term of imprisonment.

[3] Mr Wood filed his notice of appeal nine working days out of time. The delay is short and no prejudice appears to arise. We therefore grant the necessary extension.

The offending

[4] At the time of sentencing Mr Wood was 70 years of age. Prior to his arrest for the present offending he had been involved in the banking and finance industry his entire working life.

[5] In or about 1999, Mr Wood commenced a foreign exchange brokerage. For the next 18 years he provided financial services to clients through two companies. One company offered retail foreign exchange services (the retail company) whilst the other accepted funds from clients for investment purposes (the investment company). The investment company began accepting funds for investment from about 2007. Two other persons, one of whom was Mr Wood’s son, were also directors of the investment company at various times but neither was involved in the day to day running of either business. Mr Wood was solely responsible for running both businesses.

[6] Clients who deposited funds with the investment company did so after providing Mr Wood with instructions regarding the manner in which their funds were to be invested. Options for investment included placing funds on term deposit, purchasing and holding foreign currency and investing funds in other ways.

[7] Between 2008 and 2017, 21 clients deposited a total of approximately $22 million of funds with the investment company. All did so in reliance on assurances by Mr Wood that their capital would not be at risk. Mr Wood pooled these funds and did not separate them into different bank accounts or sub-accounts. As a result, he became unable to keep accurate records of each client’s investment.

[8] During the same period the investment company suffered losses from foreign exchange trading activities. As a result, Mr Wood knew from December 2008 that it was unable to repay the sums invested by clients. None of the clients was aware their capital had been eroded by the foreign exchange trading losses. Rather than advise clients of this situation, however, Mr Wood provided them with investment reports purporting to show the current balances of their investments. The frequency of the reports varied depending on the requirements of each client.

[9] The reports contained false information regarding the investment activities undertaken on behalf of clients. In some instances Mr Wood created fictitious returns on clients’ investments. Other reports referred to foreign currency transactions that did not occur. As a result, the investment reports painted a false picture of the value of clients’ investments. This led clients to believe their capital was intact and they were achieving a return on their investments when neither was the case.

[10] Between December 2008 and May 2017 Mr Wood knowingly provided at least 223 false investment reports to the 21 clients who had invested funds with the investment company. This aspect of Mr Wood’s offending led to the representative charge of obtaining funds by deception.

[11] The charge of theft by a person in a special relationship was laid because of the manner in which Mr Wood dealt with funds deposited by clients with the investment company. From January 2010, Mr Wood began departing from the terms on which he had agreed to accept funds for investment. In particular, he began using funds obtained from new investments to repay interest and/or capital owing under existing investments. The clients who provided the funding for these transactions did not know their funds were being used to repay other investors.

[12] The use of investors’ funds in this way meant Mr Wood was operating what has now become known as a “Ponzi” scheme. Such a scheme relies on new funds deposited by investors to repay interest and principal owing to existing investors. Throughout this period Mr Wood caused the investment company to continue to engage in foreign exchange transactions in the hope that he could recoup the losses it had already incurred.

[13] In early 2017 Mr Wood instructed his solicitor to advise the Financial Markets Authority (FMA) that he wished to disclose fraud on his part. On 19 May 2017 he voluntarily attended an interview with the FMA in which he admitted he had been involved in fraudulent activity. He told the FMA he believed the investment company owed 20 clients a total of approximately $8 million in investment capital. This prompted the FMA to refer the matter to the Serious Fraud Office (SFO) for investigation.

[14] The investment company was placed in liquidation on 16 June 2017. The liquidators subsequently ascertained that it owed 28 unsecured creditors a total sum of just over $9.7 million. Later the same month the retail company was also placed in liquidation. The liquidators of that company ascertained it had four unsecured creditors who were owed a total of just over $3 million. The liquidators acknowledge, however, that there is some duplication of claims between creditors of the two companies.

[15] In July and August 2018 Mr Wood voluntarily attended interviews by the SFO in the company of his lawyer. During these he admitted that approximately $9.8 million of principal and interest was still owing by the two companies to investors. He also admitted providing false investment reports to clients between 2008 and 2017 to enable the companies to continue to trade. He said he knew the companies’ clients would have sought to withdraw their funds if they knew the true situation regarding their investments. He said the investment company continued to trade during this period because he believed it could trade its way out of trouble.

The sentence

[16] The Judge noted that Mr Wood’s offending contained numerous aggravating factors. First, it had occurred over a period of approximately nine years between 2008 and 2017.[4] Secondly, it involved a substantial loss to a large number of investors.[5] It also involved a significant breach of trust, because clients had entrusted their funds to Mr Wood relying on his assurances that he would protect them from loss. The Judge pointed out that although Mr Wood did not gain personally from the offending, he nevertheless drew an income from the business.[6]

[17] In addition, the offending had a major impact on those who lost the funds they had invested with Mr Wood. Many were elderly, and had lost their life savings as a result of investing money with him. This meant they were deprived of the funds they had accumulated for their retirement. These victims were particularly vulnerable because they had no prospect of recovering their losses by returning to the workforce.[7] The Judge referred to several victim impact statements in which the victims described the devastation they had suffered as a result of the offending.

[18] Finally, the offending was premeditated.[8] It involved carefully orchestrated actions over a considerable period and using numerous different forms of deception. The Judge considered Mr Wood’s offending was comparable to that in Ryan v R, in which a starting point of nine years imprisonment was selected.[9] The offending in that case also involved the use of a Ponzi scheme. Taking these factors into account, the Judge selected a starting point of eight years and nine months’ imprisonment.[10]

[19] The Judge then applied discounts to reflect Mr Wood’s previous good character (two per cent), his cooperation with the authorities (three per cent), remorse (two per cent) and his age and associated health issues (three per cent).[11] This resulted in a total discount of ten per cent, or 11 months.

[20] From the resulting sentence of seven years and ten months’ imprisonment, the Judge allowed a discount of 19 months, or 20 per cent, to reflect Mr Wood’s guilty pleas. This produced the end sentence of six years and three months’ imprisonment.[12]

[21] The Judge then considered whether to impose a minimum term of imprisonment. He concluded the usual provisions as to eligibility for parole would not be sufficient to reflect the sentencing purposes of denunciation, deterrence and the need to hold Mr Wood accountable for his offending.[13] He therefore made an order requiring Mr Wood to serve a minimum term of imprisonment of two years and 11 months before being eligible to apply for parole. This represented slightly less than 50 per cent of the sentence.

The starting point

[22] On Mr Wood’s behalf Ms Maxwell submitted that the Judge erred in several respects when fixing the starting point of eight years and nine months’ imprisonment. She contended Mr Wood’s offending justified a starting point of no greater than eight years’ imprisonment.

[23] First, Ms Maxwell contended the Judge erred in placing weight on the fact that Mr Wood had drawn an income from the business because his only income came from the retail business and none of the charges relate to that business.

[24] Ms Maxwell contended the Judge was also wrong to conclude Mr Wood’s culpability was similar to that of the offender in Ryan v R. Unlike the present case, the offending in Ryan involved the creation of a Ponzi scheme from the outset to facilitate theft of funds by the offender. There were also approximately 900 victims in that case.

[25] Ms Maxwell contended a more relevant case for present purposes was Arnott v R, in which a starting point of seven years’ imprisonment was selected for offending involving the dishonest misappropriation of approximately $2.5 million over a four year period between April 2008 and May 2012.[14] Ms Maxwell also referred us to Cherry v R, in which a starting point of eight years’ imprisonment was selected for offending involving the theft or misappropriation of approximately $4.7 million over a five year period between June 2002 and February 2007.[15]

[26] Ms Maxwell pointed out, however, that in both Arnott and Cherry the offender used at least part of the funds for personal gain when that is not the case here. In addition, she said care needs to be taken when comparing the sums involved in those cases with those lost by the victims of Mr Wood’s offending. Although the sums involved in Arnott and Cherry were less than those in the present case, the passage of time and consequential impact of inflation meant the sums lost through the offending in Arnott and Cherry would now be worth considerably more.

[27] Even taking into account the matters raised by Ms Maxwell, however, we consider Mr Wood’s offending was more serious than that in either Arnott or Cherry. Mr Wood offended for a much greater period and the victims of his offending suffered considerably greater losses than was the case in either of those authorities.

[28] We do not see value, however, in undertaking a detailed comparison between the culpability of Mr Wood’s offending and that of the offenders in Ryan, Arnott and Cherry. As always, the appropriate starting point will fall within a range and the issue for present purposes is whether the starting point selected for Mr Wood’s offending fell within or outside that range. We consider the most relevant factors for present purposes to be the length of time over which the offending occurred, the numerous forms of deception it required, the total amount lost by investors and the effect of the offending on the victims. The fact that Mr Wood derived no personal gain largely reflects the nature of a Ponzi scheme, in which the primary motivation of the offender will generally be the need to use incoming funds to repay existing investors.

[29] We consider these factors, all of which the Judge correctly identified, amply justified the starting point of eight years and nine months’ imprisonment.

Mitigating factors

[30] As the Judge acknowledged, Mr Wood was able to rely on several mitigating factors other than his guilty pleas. The first was previous good character. He did not begin to offend until he was in his late 50s. Prior to that he had led a blameless life, and the references provided to the Judge at sentencing make it clear he had undertaken many worthwhile roles in the community. We consider a greater discount than the two per cent allowed by the Judge was required to reflect this factor.

[31] It is also difficult to see how Mr Wood could have co-operated more fully with the authorities. He made the first approach to the FMA. He then frankly acknowledged his offending in voluntary interviews by both the FMA and SFO. Again, we consider this factor warranted more than the three per cent applied by the Judge.

[32] When combined with the remorse Mr Wood has demonstrated and his age and associated health issues, we consider a discount of at least 16 months, or 15 per cent, was required. This reduces the sentence to one of seven years and five months’ imprisonment before taking into account the guilty pleas.

[33] The Judge applied a discount of 20 per cent to reflect Mr Wood’s guilty pleas. As we have already observed, however, Mr Wood acknowledged his wrongdoing from the outset. He first appeared before the Court on 23 October 2018 and was remanded without plea until 13 November 2018. On that date he was remanded to 6 December 2018, when a duty solicitor entered not guilty pleas on his behalf and elected trial by jury. The charges were then adjourned to case review hearing on 20 March 2019. By March 2019 Mr Wood was represented by counsel and entered his guilty pleas at the case review hearing. These must obviously have been signalled to the prosecution earlier, however, to enable a summary of facts to be agreed.

[34] This was undoubtedly a complex prosecution and we consider the entry of guilty pleas at first appearance in such a case would be unusual. In practical terms we therefore consider Mr Wood entered his guilty pleas at the earliest opportunity. Furthermore, the pleas saved the state the cost of a lengthy trial. In those circumstances we consider a discount of 23 months, or 25 per cent, was warranted to reflect Mr Wood’s guilty pleas. This produces an end sentence of five years and six months’ imprisonment.

Minimum term of imprisonment

[35] Ms Maxwell sought to persuade us that a minimum term of imprisonment was not justified in the present case. She relied in support of this submission on Mr Wood’s advanced age and the other mitigating factors to which we have referred. Ms Maxwell contended that the sentencing purposes of deterrence, denunciation and the need to hold Mr Wood accountable for his offending did not require the imposition of a minimum term, and that the Parole Board is best placed to determine when Mr Wood should be released on parole.

[36] We do not accept this submission. If Mr Woods is not required to serve a minimum term of imprisonment he will now be eligible to apply for parole after serving just 22 months of his sentence. That outcome needs to be considered having regard to his overall culpability and the substantial losses he caused vulnerable victims to suffer. When that is done we consider the usual parole provisions would be insufficient to recognise the sentencing purposes of deterrence, d

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enunciation and the need to hold Mr Wood accountable for his offending. [37] Adopting the approach taken by the Judge, we consider Mr Wood should serve a minimum term of two years and six months, or slightly less than 50 per cent, of his sentence before being eligible to apply for parole. Result [38] The application for an extension of time is granted. [39] The appeal against sentence is allowed. [40] The existing sentences of six years and three months’ imprisonment are quashed. In their place we substitute concurrent sentences of five years and six months’ imprisonment. [41] The minimum term of imprisonment of two years and 11 months is quashed. A minimum term of imprisonment of two years and six months is substituted. ----------------------------------------------------------------------------- [1] Crimes Act 1961, ss 240(1)(a) and 241(a). [2] Crimes Act, ss 220 and 223(a). [3] R v Wood [2019] NZDC 14274. [4] At [39]. [5] At [27]. [6] At [13]. [7] At [40]. [8] At [38]. [9] Ryan v R [2018] NZCA 586. [10] R v Wood, above n 3, at [42]. [11] We think it likely that the Judge considered a global discount of ten per cent was appropriate for mitigating factors other than the guilty pleas and then apportioned this between individual factors. It is very difficult, however, to assess the appropriateness of individual discounts when they are so small. A global discount reflecting all four factors is much more readily understood. [12] At [43]. [13] Sentencing Act 2002, s 86(2)(a), (b) and (c). [14] Arnott v R [2015] NZCA 236. [15] Cherry v R [2013] NZCA 636.
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