Kloogh’s appeal against the length of his sentence for stealing more than $12million from his clients was heard in the High Court at Dunedin yesterday.
In July in the District Court in Dunedin Judge Michael Crosbie sentenced Kloogh to eight years and 10 months’ imprisonment, following Kloogh’s earlier guilty plea.
Yesterday, counsel Sarah Saunderson-Warner said the starting point of 13 years for time to be served adopted by Judge Crosbie was manifestly excessive when compared with similar cases, and insufficient regard had been given to Kloogh’s mitigating factors.
Those included his voluntary attendance at restorative justice meetings with all former clients who wanted them, something which had not been easy Ms Saunderson-Warner said.
"There were a number of them ... The judge made the point that what could have happened was that he turned up and apologised at the first one and not turned up to the rest but he did not do that, he carried on for two months and met every person who wanted to face him."
Restorative justice conferences were an important part of ensuring victims were heard and it was unusual that an offender such as Kloogh had attended so many, she said.
Kloogh ran a Ponzi scheme which defrauded his investment advice clients out of at least $12million.
The official assignee is still trying to untangle the accounts of Kloogh’s insolvent firms to assess how much money he stole.
Kloogh also argued that Judge Crosbie had erred in setting his starting point for sentencing at 13 years, Ms Saunderson-Warner saying comparable cases had a lower starting point.
Ms Saunderson-Warner also argued that while Kloogh accepted that a minimum period of imprisonment was appropriate, the starting point should have been 50% of his full sentence rather than the 60% adopted by Judge Crosbie.
The judge boosted his starting point due to factors such as breach of trust, vulnerability of Kloogh’s victims and their devastation, but Ms Saunderson-Warner argued those factors had already been taken into account by the judges who imposed sentence in benchmark cases he based his reasoning on.
The judge had also not given sufficient weight to the help Kloogh had given the Serious Fraud Office and insolvency staff, including handing over documents and computer files, Ms Saunderson-Warner said.
For the Crown, Robin Bates said the key factor in sentencing was whether the judge adopted a starting point which was reasonable given similar cases, and argued that was what Judge Crosbie had done.
Kloogh’s offending destroyed friendships and was a gross breach of trust, which featured premeditated targeting of vulnerable people.
"Those were factors which took the offender’s culpability to a high level."
Kloogh had stolen client’s money for several years so should not be considered a first-time offender, Mr Bates said.
Justice Rachel Dunningham reserved her decision, and also asked for counsel to clarify whether Judge Crosbie had imposed a $5million reparation order on Kloogh.
