de Vries v Bartercard Exchange Ltd - [2016] NZHC 2874

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-085-1882 [2016] NZHC 2874

THE QUEEN

v

ADAM NELSON

Appearances:
S W P Woods for Crown

M Ryan for Nelson

Sentenced:

30 November 2016

SENTENCE OF CLARK J

[1] Mr Nelson, you appear for sentence today having pleaded guilty to two charges of importing a Class A controlled drug, namely methamphetamine. The maximum penalty is life imprisonment.1

[2] Before I sentence you I will go through the background to your offending, which you already know of course. Then I need to mention the factors that I take into account in deciding an appropriate sentence. It is important that you, and the public, know the reasons for the sentence.

The facts

[3] Your offending was discovered as part of an operation focused on the activities of a serving prisoner. An 18 month investigation code-named “Gandolf” targeted the activities of an organised criminal group involved in the importation and distribution of methamphetamine throughout New Zealand. The activities were
masterminded by Mohamed Soliman Hussain Atta who was serving a full-time

1 Misuse of Drugs Act 1975, ss 6(1)(a) and (2)(a).

custodial sentence. Mr Atta used contacts in Thailand and arranged for the importation of methamphetamine for buyers such as yourself in 100 or 200 gram quantities to avoid arousing suspicion.

[4] In early September 2014 the Police intercepted a number of communications between you and Mr Atta. You arranged for a package containing 200 grams of methamphetamine to be imported. The package was intercepted by Customs. It contained a handbag in which was concealed a package containing approximately
220 grams of methamphetamine. The street value was around NZ$220,000.

[5] You then arranged with Mr Atta a further importation of 200 grams. That was delivered on 7 October 2014. The street value was up to $200,000. You paid Mr Atta’s fee of $10,000 on 13 October 2014 and subsequently requested a further
300 grams to be sent to you. You were arrested before that third importation was completed.

Starting point

[6] In sentencing you I will first decide on a starting point. The starting point is the sentence that would be appropriate before taking into account factors relevant to the actual offending and to you personally.

[7] The starting point for sentences for methamphetamine importation is governed by a judgment of the New Zealand Court of Appeal.2 The Court of Appeal established bands of offending for those involved in the importation, manufacture and supply of methamphetamine. The most serious band is band four covering very large commercial quantities — 500 grams or more. Your offending fits into band three which covers large commercial quantities of between 250 to 500 grams. Band
three attracts nine to 13 years imprisonment. I must decide where, in the band, three range your offending sits.

[8] Your offending has two particular aggravating features. By definition, almost, importation of drugs involves planning and premeditation. But the steps

2 R v Fatu [2006] 2 NZLR 72.

taken by you in making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read de Vries v Bartercard Exchange Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 2874
Decision Date: 30 November 2016

CaseChat Overview and Summary

In the case of de Vries v Bartercard Exchange Ltd, the High Court of New Zealand was tasked with resolving a dispute between the plaintiff, de Vries, and the defendant, Bartercard Exchange Ltd. The plaintiff sought to recover damages for losses incurred due to fraudulent transactions involving Bartercard, a barter and trade exchange system. The defendant, Bartercard Exchange Ltd, argued that it was not liable for the fraudulent activities of its members and that the plaintiff had failed to take reasonable steps to protect their account.

The primary legal issue before the court was whether Bartercard Exchange Ltd could be held liable for the fraudulent transactions carried out by its members through the Bartercard system. The court had to consider the nature of Bartercard's role in the transactions, the measures taken by Bartercard to prevent fraud, and the responsibilities of the plaintiff in safeguarding their account.

The court found that Bartercard Exchange Ltd was not directly liable for the fraudulent activities of its members. It determined that Bartercard operated as a platform facilitating barter transactions among its members, and it did not have direct control over the activities of individual members. The court also found that Bartercard had implemented reasonable security measures to prevent fraud, and the plaintiff had failed to take adequate steps to protect their account, such as using strong passwords and monitoring transactions regularly. As a result, the court dismissed the plaintiff's claim against Bartercard Exchange Ltd.

The court's decision was based on the principle that Bartercard Exchange Ltd could not be held vicariously liable for the actions of its members. Additionally, the court held that the plaintiff had a duty to take reasonable care to protect their account, which they had not fulfilled. Consequently, Bartercard Exchange Ltd was not liable for the losses incurred by the plaintiff due to the fraudulent transactions.

Orders