A bent businessman with a history of deceit and tax avoidance has lost his appeal after being convicted and jailed for a luxury vehicle scam.
Raymond Anthony Andrews was convicted of fraud, using forged documents and concealing or removing property after a jury trial in March 2019.
The 71-year-old was an undischarged bankrupt controlling a company contrary to the Companies Act when he was importing and distributing high-end motor vehicles between 2015 and 2017 and also wilfully misled the Official Assignee (OA).
Prosecutors, in a joint effort by the Ministry of Business, Innovation and Employment and police, estimated Andrews' victims lost about $700,000 for the promise of vehicles such as the Jeep Grand Cherokee, Mercedes-Benz and BMW.
Another car company lost $345,000 as part of the ruse. The quantum of the total loss was disputed by Andrews.
In July 2019, he was sentenced to six years and six months' imprisonment at the Auckland District Court, while the Crown described the case as one of the most egregious bankruptcy breaches to come before the courts.
In June this year, Andrews challenged both his convictions and sentence at the Court of Appeal, alleging his trial lawyer failed to prepare adequately and advance his defence in accordance with his instructions. This, he said, resulted in a miscarriage of justice.
In support of his appeal, Andrews also said his counsel failed to prepare a brief of evidence, to discharge his duties of cross-examination and gave an inadequate closing address.
At trial, Andrews' defence was he had attempted to meet his commercial obligations and it was not his fault the victims had sustained losses. For the vehicle import business, Andrews maintained he was in an agency relationship with the company and he did not manage the business.
Last week, the Court of Appeal released its decision dismissing both aspects of Andrews' appeal.
"There are only a limited number of circumstances where counsel error, without more, will potentially give rise to a miscarriage of justice," the judgment by Justice Cameron Mander reads.
"Not every error, even in respect of one or more facet of the trial, will result in an unfair trial. An assessment of the trial overall is required. It will only be if the departure from good practice is 'so gross, or so persistent, or so prejudicial, or so irremediable' that the trial must be condemned as unfair and the conviction quashed as unsafe."
However, Justice Mander said, fundamental decisions where trial counsel had failed to follow specific instructions would generally give rise to a miscarriage.
"These have been identified by this Court as those relating to plea, electing whether to give evidence, and to advance a defence based on the defendant's version of events."
The Court of Appeal said, notwithstanding the extent of the criticisms levelled at Andrews' trial counsel, it was not satisfied any of the grounds — individually or in combination — have resulted in a miscarriage of justice.
When dismissing Andrews' appeal of his sentence, the court said an important aggravating aspect was the offending was committed while Andrews was trading as a bankrupt person, wilfully misleading the Official Assignee, and concealing property.
"We acknowledge that Mr Andrews is able to point to other cases of fraud offending which involve very large losses, sometimes running into the millions of dollars, where lower or similar starting points were adopted," the judgment reads.
However, the quantum of loss is only one element of sentencing for fraud, the court added.
"In addition to substantial loss, other aggravating features were present in this case that demonstrated Mr Andrews' high level of culpability, including the duration and breadth of his offending as an undischarged bankrupt."
Andrews was previously jailed in 2013 for 15 months for controlling a business while bankrupt, obtaining credit by deception and concealing two bank accounts.
Andrews was denied parole last month and will be seen again by the Parole Board again in April. His statutory release date is December 10, 2024.