Middeldorp v The Queen - [2016] NZCA 92

IN THE COURT OF APPEAL OF NEW ZEALAND

CA385/2015
[2016] NZCA 92

BETWEEN	JOHANNES HENDRICK MIDDELDORP Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	J N Bioletti for Appellant M D Downs for Respondent
Judgment:	6 April 2016 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

The appellant was convicted, after a Judge-alone trial, of seven counts of reproducing a document with intent to cause loss.[1] He was sentenced to a term of three years’ imprisonment. He appeals the sentence, contending the term is manifestly excessive on the basis that he was “not sentenced in accordance with the verdict”.
[1]Crimes Act 1961, s 258(1), which carries a maximum penalty of 10 years imprisonment.
The charges concerned a scam involving selling, or endeavouring to sell, advertising in fictitious publications.
The appellant was sentenced, along with his partner, Ms Bandon, by the trial Judge, Mallon J. Her sentencing notes address the behaviour of both of them. She treated their separate offending as part of one joint scam. The case had been prosecuted pursuant to s 66(1) of the Crimes Act 1961. The appellant and his co-offender were alleged to have been parties.
The Judge found:[2]
… The total amount sought from those targeted was approximately $470,000. Based on forensic accounting analysis, the money actually received into accounts controlled by you was approximately $114,000.
[2]R v Middeldorp [2015] NZHC 1337 at [4].
The Judge emphasised the joint character of the criminal behaviour:[3]
Your operation at Port Waikato was a joint one. You worked together, moving from one fictitious publication to the next, making sales in those fictitious publications to targets using a computer database set up at your home.
[3]At [5].
The appellant’s partner was sentenced to 12 months’ home detention, together with 200 hours’ community work.
The appellant was sentenced to three years’ imprisonment.
The Judge found that the pair had obtained approximately $114,000 in revenue for advertising in publications that did not exist. For sentencing purposes, counsel calculated that the particulars raised a total sum of $116,574.15 sought of which a total of $32,885.25 was actually obtained. The difference in these two calculations was not regarded by counsel as material for the purposes of the sentencing appeal.
To a degree, Mr Middeldorp and his partner operated separately with their own “clients” who were victims of the fraud. But, as already mentioned, the operation “was a joint one”.
The Judge also found that the co-defendant made “more of the sales calls”:[4]
Mr Middeldorp, you did some of the sales, but you also carried out the primary role on all other aspects of the operation.
[4]R v Middeldorp, above n 2, at [6].
It was submitted on appeal that the sentencing Judge sentenced the appellant as if he had been found guilty not only in respect of his…

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 Middeldorp v The Queen

Details

AGLC: Middeldorp v The Queen [2016] NZCA 92
Case: [2016] NZCA 92
Decision Date: 6 April 2016 at 11.30 am

CaseChat Overview and Summary

The case of Middeldorp v The Queen involved an appeal against the sentence imposed on the appellant, Johannes Hendrick Middeldorp, who had been convicted of seven counts of reproducing a document with intent to cause loss. Middeldorp was sentenced to three years' imprisonment, and he challenged the sentence as manifestly excessive. The Court of Appeal of New Zealand was tasked with determining whether the sentence was justified and whether it was imposed in accordance with the verdict.

The primary legal issue in this case was whether the sentence imposed on Middeldorp was excessive and whether it had been imposed based on unproven actions of his co-offender. The appellant's counsel argued that the sentence was excessive because it was based on the total revenue obtained from the scam, which included the actions of his co-offender, Ms Bandon. The Crown's counsel countered that the appellant's culpability was higher due to his role as the driving force behind the joint criminal enterprise.

The Court of Appeal considered the nature of the joint criminal enterprise and the appellant's role within it. The Court noted that the appellant was the instigator and driving force behind the operation, despite Ms Bandon making more sales calls. The Court found that the trial Judge was entitled to consider the joint nature of the criminal enterprise and to impose a sentence based on the appellant's culpability within that context. The Court also compared the current case with a similar case, Helsby-Knight v R, which involved similar offending and resulted in a sentence of three years and six months' imprisonment. The Court concluded that the sentence in the current case was in line with the recent decision in Helsby-Knight v R and was therefore justified.

The Court of Appeal granted the appellant's application for an extension of time to appeal and dismissed the appeal against his sentence. The Court found that the sentence imposed was not manifestly excessive and was in accordance with the verdict, taking into account the appellant's role as the driving force behind the joint criminal enterprise.

Orders