Klair v Commerce Commission - [2014] NZHC 1811

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000312 [2014] NZHC 1811

IN THE MATTER OF an appeal against conviction and sentence

BETWEEN

SONIA PARDEEP KAUR KLAIR Appellant

AND

COMMERCE COMMISSION Respondent

Hearing: 28 July 2014

Counsel:

R M Mansfield for the Appellant
A M McClintock and J B Hamlin for the Respondent

Judgment:

1 August 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 1 August 2014 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: R M Mansfield, Auckland

Solicitors: Meredith Connell, Auckland

Copy To: “The New Zealand Herald” (H Fletcher), Auckland

KLAIR v COMMERCE COMMISSION [2014] NZHC 1811 [1 August 2014]

[1] The appellant, Ms Klair, pleaded guilty in the District Court and was convicted of 17 charges of causing a document to be made that was a reproduction of another document with intent to obtain a pecuniary advantage, and 47 charges of dishonestly using a document with intent to obtain a pecuniary advantage. She received a sentence of 10 months’ home detention. She now appeals against that sentence on the ground that it is manifestly excessive. The appeal is opposed.

Facts

Background facts

[2] The appellant is 35 years of age. She is a first offender.

[3] In 2005, NBO NZ Ltd (“NBO”) was incorporated with the appellant’s former husband as the sole director. The appellant was employed as the office manager. NBO provided an online directory for businesses, similar to the Yellow Pages.

[4] In 2008, the appellant and her husband separated, and the appellant incorporated NZ Look Ltd (“NZ Look”). As part of a matrimonial settlement, her former husband transferred 20,000 business listings from NBO’s online directory to NZ Look’s online directory. The clients were not notified regarding this transfer.

[5] Later, the Commerce Commission received 53 complaints or enquiries regarding the conduct of NZ Look. The majority of the complaints asserted that NZ Look had created business listings without authority, and then sent an invoice to those businesses seeking payment for unauthorised use of the online directory service.

Facts relevant to s 228(b), Crimes Act 1961 offending

[6] Between 2008 and August 2010, the appellant sent or engineered the sending of “special offer” documents to various businesses, followed by an invoice seeking payment for outstanding listing fees. The “special offer” documents invited recipients to “renew” their listings with NZ Look. If the invoice was not paid, a “final notice” was sent, which demanded payment for the purported outstanding

amount and threatened referral to a collection agency if the account was not settled within seven days. This document was sent to the recipients in an effort to secure payments to which the recipients had not agreed to pay. The appellant and NZ Look adopted this practice in the hope that the recipients would not query whether or not they had previously agreed to list with NZ Look. This conduct gave rise to the 47 charges of dishonestly using a…

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.

Continue reading Klair v Commerce Commission

Details

AGLC: Klair v Commerce Commission [2014] NZHC 1811
Case: [2014] NZHC 1811
Decision Date: 1 August 2014

CaseChat Overview and Summary

The appellant, Ms Klair, appealed against her sentence on the ground that it was manifestly excessive. The District Court had imposed a sentence of 10 months’ home detention on the appellant for her involvement in a sophisticated and fraudulent scheme where she created false business listings and invoiced businesses for services they had not agreed to pay for. Ms Klair submitted that the starting point for her sentence was excessive and that the District Court had failed to adequately consider her personal mitigating factors. The High Court found that the starting point was indeed excessive and that the District Court had not appropriately taken into account the appellant's personal mitigating factors. The Court reduced the sentence to five months’ home detention, while maintaining the order for reparation in the amount of $1,747.63.

The Court considered the nature of the offending, its magnitude and sophistication, the number of victims, the motivation for the offending, the amounts involved and losses, the period over which the offending occurred, the seriousness of breaches of trust involved, and the impact on victims. The Court found that the appellant's offending was deliberate, designed to bluff or deceive a large number of customers, and involved a significant escalation of efforts in 2010 with the use of forged documents. The Court concluded that the offending was sophisticated and carefully planned, and the appellant's motivation was clearly driven by pecuniary gain.

While the established loss in this case was $1,747.63, the Court found that the actual losses were only one factor in assessing culpability. The Court found that a starting point of 15 months' imprisonment would have been appropriate, and after allowing for a discount of five percent for personal mitigating factors and a 25 percent discount for the guilty plea, the sentence should have been reduced to 10.7 months' imprisonment, or 5.35 months' home detention. The Court then rounded down the sentence to five months’ home detention, considering that a less restrictive sentence would not satisfy the applicable purposes of sentencing. The reparation order of $1,747.63 remained unchanged.

Orders