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R v Holmes [2016] NZDC 24299

Published 16 December 2021

Sentencing — duties of company directors — failure to attend offices of liquidator — discharge without conviction — Companies Act 1993, s 261 — Sentencing Act 2002, ss 106 & 107. The defendant appeared for sentence having been found guilty of two charges under s 261 of the Companies Act. The defendant had been the director of a company placed into liquidation. On three separate occasions the liquidator had attempted via email to arrange a meeting so that the defendant could be examined and provide relevant documents. The defendant did not attend. The defendant sought a discharge without conviction. In considering an application for discharge without conviction, a court had to consider the gravity of the offending; determine what the direct and indirect consequences of a conviction would be; and determine whether those consequences would be all out of proportion with the gravity of the offending. The Court considered the defendant's actions in relation to the offending and assessed the gravity of the offending as moderately serious. In looking at the consequences of a conviction, the Judge noted that the defendant's submission in relation to the consequence on his ability to travel to Australia was merely speculative. The Judge concluded that the consequences of a conviction would not be all out of proportion with the gravity of the offending and declined to discharge the defendant without conviction. The Judge entered convictions for both charges and fined the defendant $1000 plus $130 Court costs. Judgment Date: 29 November 2016