A former Central Hawke's Bay mayor who intentionally facilitated crime by providing legal help has been sentenced to four years nine months' jail and says his sense of shame and regret will follow him to his grave.
Hugh Edward Staples Hamilton, who did legal work for failed finance company Belgrave, was in May guilty on 14 charges of theft by a person in a special relationship.
Belgrave's 2008 collapse left more than 1200 investors $22 million out of pocket.
At sentencing in the High Court at Auckland this morning, Crown lawyer Nick Williams pushed for a starting point of six to six and a half years in jail for Hamilton.
Williams said the theft in this case amounted to $12.5 million and that Hamilton abused his position of authority as a lawyer.
Hamilton's actions was not spur of the moment offending and the lawyer was the "necessary conduit" through which the theft of Belgrave investor funds was enabled, Williams said.
Williams, in referring to a pre-sentencing report, said Hamilton did not display empathy for his victims and had not shown remorse.
The Crown lawyer said the magnitude of the offending in this case and the number of offences meant that a sentence of home detention was not appropriate.
Hamilton's sense of shame
Hamilton, 63, this morning read out a statement apologising to Belgrave's investors and for his actions.
He said he had failed miserably to uphold standards expected of him as a lawyer, which was a "crushing blow".
"My sense of shame and feeling of deep regret will follow me to my grave."
"I accept I have allowed my ego and my can do attitude to cloud my judgement. As a result of I have done things and let things happen which as a lawyer I could and should have stopped," Hamilton said.
The former lawyer told the court that he had "lost everything" and now had no career or standing in the community or his former profession. He had no assets except for a vehicle and some furniture, had recently gone onto the unemployment benefit and would offer reparation if he could.
He acknowledged that what he was saying might be seen "as too little too late".
Defence pushes for home detention
Hamilton's lawyer, David Young, listed his client's involvement and voluntary work for the Hawkes Bay community and read from numerous testimonials in support of the former public figure.
Hamilton served as mayor of Central Hawke's Bay for six years and had done pro bono legal work.
He was Waipukurau Rotary Club president, Central Rugby and Sports Club chairman.
"This is a man who spent a large part of his life going out of his way to help other people sometimes in high profile positions, sometime quietly without gain in many cases," Young said.
Young said Hamilton was a "small town" lawyer who "pushed the envelope" for his former firm's biggest client, Belgrave Finance.
Hamilton is a former partner of DAC Legal and advised Belgrave Finance until its 2008 receivership.
Young pushed for a sentence of home detention for his client.
When passing down sentence this morning, Justice John Faire said the offending had caused significant loss to the community.
The judge said that some of Belgrave's investors who lost money were retired and some face financial insecurity for the remainder of their lives.
He also said Hamilton's offending had cause harm to the legal profession.
Justice Faire was satisfied that Hamilton had played a lesser role than co-offenders and Belgrave directors Stephen Smith and Shane Buckley, both of whom were previously jailed for more than three years.
But unlike his co-offenders, Hamilton did not have the benefit of a discount for a guilty plea or cooperation with the authorities.
The judge took a sentencing starting point of five years in jail.
Although his previous good character and role in the community warranted a discount, this was tempered by the fact Hamilton was struck of as a lawyer for unrelated misuse of clients funds and the prolonged nature of his offending.
In May last year the New Zealand Lawyers and Conveyancers Disciplinary Tribunal ordered him struck off the roll of barristers and solicitors. It followed the Law Society bringing charges of misconduct against Hamilton.
Justice Faire today gave Hamilton a discount from the starting point of 5 per cent and reached a final sentence of four years nine months in jail.
SFO and FMA weigh in
Hamilton's trial, which began in March, was jointly prosecuted by the Serious Fraud Office and Financial Markets Authority. Both agencies commented on the case this morning.
FMA's director of Enforcement and Investigations Belinda Moffat said:
"The sentence reflects the seriousness of the offending in the Belgrave case. Professional advisers play a critical role in companies that raise money from the public, and they have a responsibility to ensure they do not enable wrongdoing. We hope this decision and the conclusion of the case will help to promote high standards of conduct in New Zealand's financial markets."
SFO Director Julie Read also weighed in and said, "At the time Belgrave was placed into liquidation, it was the 20th finance company to collapse in two years. The SFO have been acutely aware that the finance company collapses hindered public confidence in the integrity of our financial markets. The sentencing of Mr Hamilton concludes another prosecution and is one step closer to addressing and rebuilding that confidence."
Hamilton's trial and what the judge found
An SFO forensic accountant said Belgrave made around $12 million of loans to entities effectively controlled by property developer Raymond Schofield.
Those loans breached Belgrave's debenture trust deed, the rules dictating the terms and conditions between investors and the company accepting the funds.
For the theft charges Hamilton was found guilty of, he was accused of helping Schofield, Smith and Buckley with those loans and was therefore a party to their offending of theft by a person in a special relationship.
For those charges to stack up, the Crown had to prove Hamilton helped with the breaches, was aware of the offending and intended to assist with it.
The Crown's main allegation for those charges was that Hamilton assisted by receiving a portion of the loans in question into DAC Legal's Trust account.
Justice Faire said in May when delivering his verdicts that Hamilton assisted with the offending by carrying out instructions to execute related-party loans.
The judge also said Hamilton had knowledge of the offending: "The surrounding circumstances make it entirely implausible that Mr Hamilton was not aware of the offending. On the evidence there is no doubt that, at the very least, Mr Hamilton was wilfully blind to the relevant elements of the offending," he said.
"Having found that Mr Hamilton had the relevant knowledge of the offending, I am satisfied beyond reasonable doubt that he intended to assist in the offending ... in light of his knowledge Mr Hamilton knew that his legal assistance was resulting in related-party lending," the judge said.
"Whatever his motive, Mr Hamilton was aware of what the legal documents and trust account were being used for, and intentionally facilitated the crime by providing such legal assistance."