R v Banks - [2014] NZHC 1807

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-085-009093 [2014] NZHC 1807

THE QUEEN

v

JOHN ARCHIBALD BANKS

Hearing: 1 August 2014

Appearances:

P E Dacre QC for the Crown
DPH Jones QC for the Defendant

Date:

1 August 2014

SENTENCING NOTES OF WYLIE J

R v BANKS [2014] NZHC 1807 [1 August 2014]

[1] Mr Banks, you may remain seated until I ask you to stand.

[2] You appear for sentence today, having been found guilty of one charge of transmitting a return of electoral expenses, knowing it to be false in one or more material particulars. This is an offence pursuant to the now repealed s 134(1) of the Local Electoral Act 2001. The maximum penalty is two years’ imprisonment or a fine of $10,000.

Relevant Facts

[3] My analysis of the relevant facts is set out in my reasons for verdict delivered on 5 June 2014.1

[4] In 2010 you were a candidate for the position of Mayor in the new Auckland

Super City.

[5] You put together an experienced campaign team and you and your team set out to raise approximately $1 million to fund your campaign. You were hoping to persuade 10 major donors to each contribute $25,000 to the campaign, and also to obtain smaller donations from other supporters.

[6] Mr Kim Dotcom had recently settled in New Zealand and you first met him in April 2010. Subsequently, in June 2010, you and your wife attended a private luncheon hosted by Mr Dotcom and his wife, Mona, at their residence in Coatesville. The subject of your mayoral campaign was raised at that lunch. The discussion extended to the campaign’s funding and Mr Dotcom offered to donate $50,000 to your campaign. You accepted that offer. You requested that the donation should be split and made by way of two payments – each of $25,000. You explained this request to Mr Dotcom, saying that it would enable you to keep the donation anonymous. When Mr Dotcom asked you about this, you said that if you were to help Mr Dotcom, it would be better if no one knew about the donation.

[7] Two cheques were written, each of $25,000. They were both dated 9 June

2010. They were drawn on Megastuff Limited, a company run by Mr Dotcom, and

1 R v Banks [2014] NZHC 1244.

they were signed by him. The cheques were deposited into a drop box at the Westpac Bank in Albany on 14 June 2010. The cheques were then presented and the monies were credited to your campaign bank account.

[8] In subsequent discussions with Mr Dotcom and his head of security, a Mr Wayne Tempero, you acknowledged receipt of the cheques. You also had a discussion in January 2012 with Mr Dotcom’s solicitor, a Mr Greg Towers, in which you referred to the election support Mr Dotcom had given to you.

[9] A member of your campaign team, Mr Hutchison, acted as the treasurer, responsible for campaign finances.…

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 R v Banks

Details

AGLC: R v Banks [2014] NZHC 1807
Case: [2014] NZHC 1807
Decision Date: 1 August 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen versus John Archibald Banks was heard and determined on 1 August 2014. Mr. Banks was convicted of transmitting a return of electoral expenses, knowing it to be false in one or more material particulars, under the repealed section 134(1) of the Local Electoral Act 2001. The legal issues at hand revolved around the sentencing principles and the appropriate sentence for the offence committed. The court had to consider the purposes and principles of sentencing as outlined in the Sentencing Act 2002, and determine an appropriate sentence that would hold the offender accountable, promote a sense of responsibility, and denounce the conduct in which he was involved. Additionally, the court had to take into account the hierarchy of sentences and impose the least restrictive outcome that was appropriate in the circumstances.

The court carefully considered the relevant facts, the degree of culpability, and the aggravating and mitigating factors in determining the appropriate sentence. The court found that the offender's culpability was at a relatively low level, as the only areas of falsity related to the two donations made by Megastuff Limited on behalf of Mr. Dotcom. The court also found that there were no aggravating circumstances personal to the offender, but there were several mitigating factors, such as the offender's good character, his contributions to the community, and the significant personal consequences he had already suffered as a result of the conviction. Taking all these factors into account, the court determined that the appropriate starting point for sentencing was a term of imprisonment of four months. However, the court found that imprisonment or home detention was not necessary in this case, and instead, opted for a sentence of community detention with a curfew, together with a period of community service. This sentence was deemed appropriate as it would hold the offender accountable, promote a sense of responsibility, denounce the conduct, and deter others from committing similar offences.

Final Orders: Mr. Banks was sentenced to a term of community detention of two months, to be served with a curfew on four nights each week, and to undertake 100 hours' community work. The sentences were to be served concurrently. A separate hearing will be held to determine the costs, if any, to be awarded under the Costs in Criminal Cases Act 1967.

Orders