de Vries v Bartercard Exchange Ltd

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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…

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Details
Case
[2016] NZHC 2874
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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