R v Hendon - [2015] NZHC 973

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-085-3520 [2015] NZHC 973

THE QUEEN

v

ANTHONY JOHN HENDON

Hearing: 8 May 2015

Counsel:

G J Burston and P W Gardyne for the Crown
C Nicholls for Mr Hendon

Sentence:

8 May 2015

SENTENCING NOTES OF MALLON J

[1] Mr Hendon you appear for sentencing having pleaded guilty shortly before trial to 24 charges of reproducing a document with intent to cause loss.1

Circumstances of the offending

[2]      The charges concern a scam involving selling or endeavouring to sell advertising in fictitious publications. Each of the charges related to one of 24 fictitious publications. The charges cover 1,732 individual instances of such conduct aimed at approximately 884 individual victims.2   This took place between October
2009 and October 2012.   The total amount sought from those targeted was
approximately $1.077 million.3    Based on forensic accounting analysis, the money actually received into accounts controlled by you was approximately $786,000.

1      Crimes Act 1961, s 258(1) (maximum penalty of 10 years imprisonment).
2      In delivering these remarks I said 848 which was a slip of the tongue.
3      In delivering these remarks I said $1.7 million which was a slip of the tongue.

R v HENDON [2015] NZHC 973 [8 May 2015]

[3] The offending was predominantly carried out from your home in Picton. You enlisted co-offenders to assist you with your operation. You mostly targeted small businesses and charities. Most were targeted once or twice for relatively small amounts of money, generally in the range of around $295 plus GST to around $595 plus GST per advertisement (although there were many others outside that range). Some victims were targeted repeatedly for total sums of money that ranged from around $4,000 to nearly $40,000 depending on the number of times that they were targeted and the price you set for the advertising for that business. The targeted businesses were situated throughout the country.

[4] Your offending followed a general pattern. You obtained information about potential victims, primarily by finding their advertisements in other, often genuine, publications. The advertisements were sourced on “lead runs”, where you would travel by car throughout the country to collect large numbers of publications from places such as community centres, doctors’ surgeries, and police stations (for example).

[5] You would then copy the advertisement on to a “fax proof”. The fax proof was a document which was headed with the name of a fictitious publication. It would include a place for the targeted businesses to sign approving the advertisement. You would send the fax proof to the targeted business with a covering note, which would say something like in the following example:

Please find the proof and order form for your advertisement in the following publication: “Child Safety at Home – Issue 1, Volume 2 (Autumn). We look forward to receiving your confirmation back ASAP.

[6] The intention was to dishonestly represent that the advertising in the named publication had already been discussed and agreed with the business. The…

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 Hendon

Details

AGLC: R v Hendon [2015] NZHC 973
Case: [2015] NZHC 973
Decision Date: 8 May 2015

CaseChat Overview and Summary

Anthony John Hendon was sentenced by Mallon J in the High Court of New Zealand. Mr Hendon had pleaded guilty to 24 charges of reproducing a document with intent to cause loss. The charges were related to a scam involving selling advertising in fictitious publications aimed at approximately 884 individual victims between October 2009 and October 2012. The total amount sought from those targeted was approximately $1.077 million, with approximately $786,000 received into accounts controlled by Mr Hendon. The court considered the aggravating features of the offending, including the planned and elaborate nature of the operation, the widespread impact, the persistence over three years, the high amount netted by the operation, and Mr Hendon's role as the principal offender. The Crown submitted that the offending sits at the upper end of dishonestly reproducing documents offending, with an appropriate starting point between five and a half and six years imprisonment. Mr Hendon's counsel submitted a starting point of three and a half years to four years imprisonment, based on a comparison with the sentence of his co-offender, Mr Burns. The court considered the mitigating factors, including Mr Hendon's guilty pleas, and determined that a discount of around 10 percent was appropriate. Mr Hendon was sentenced to four years imprisonment, to be imposed concurrently on each of the charges. By consent, the court also ordered forfeiture of the property listed in the notice dated 1 May 2015.

The primary legal issue in this case was determining an appropriate sentence for Mr Hendon's offending. The court considered the aggravating features of the offending, including the planned and elaborate nature of the operation, the widespread impact, the persistence over three years, the high amount netted by the operation, and Mr Hendon's role as the principal offender. The Crown submitted that the offending sits at the upper end of dishonestly reproducing documents offending, with an appropriate starting point between five and a half and six years imprisonment. Mr Hendon's counsel submitted a starting point of three and a half years to four years imprisonment, based on a comparison with the sentence of his co-offender, Mr Burns. The court also considered the mitigating factors, including Mr Hendon's guilty pleas, and determined that a discount of around 10 percent was appropriate. The court ultimately sentenced Mr Hendon to four years imprisonment, to be imposed concurrently on each of the charges. The court also ordered forfeiture of the property listed in the notice dated 1 May 2015 by consent.

Orders