R v Lester - [2025] NZHC 1272

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-004-003491 [2025] NZHC 1272

THE KING

v

MARK ANDREW LESTER SEAN DAVID BRYAN

Hearing: 20 May 2025

Appearances: B Dickey/R Williams for Crown
S Kilian for Defendant Lester
M E Goodwin for Defendant Bryan

Sentenced: 20 May 2025

SENTENCING NOTES OF WILKINSON-SMITH J

Solicitors/Counsel:
Serious Fraud Office, Auckland Bankside Chambers, Auckland Kilian & Associates, Auckland M E Goodwin, Auckland

R v LESTER & ANOR [2025] NZHC 1272 [20 May 2025]

Introduction

[1] Mr Bryan, you appear for sentence today having pleaded guilty to a representative charge of giving of a gift to an agent without the principal’s consent in relation to conduct that occurred prior to 7 November 2015.1 You have also pleaded guilty to a further representative charge of giving a gift to an agent without the principal’s consent in relation to conduct that occurred after 7 November 2015.2

[2] Mr Lester, you appear for sentence having pleaded guilty to a representative charge of acceptance of a gift to an agent without the principal’s consent for conduct prior to 7 November 2015,3 and a further representative charge of acceptance of a gift to an agent without the principal’s consent in relation to conduct that took place after 7 November 2015.4

[3]The charges are laid under the Secret Commissions Act 1910.

[4] The maximum penalty for the offending was increased from two years’ imprisonment to seven years’ imprisonment on 7 November 2015. Your offending spanned the change in the maximum penalty.

Agreed summary of facts

[5] You have each agreed to a summary of facts and I have relied on the summaries of fact in setting out the facts for the purpose of sentencing.

[6] Mr Lester, at the time of the offending you were a contractor at Spark New Zealand Trading Ltd (Spark). You provided services to Spark in New Zealand through your company, Spud Consulting Ltd (Spud Consulting). You were the sole director, shareholder and employee.

1      Secret Commissions Act 1910, ss 3(1) and 13; maximum penalty two years’ imprisonment or
$1000 fine.
2      Secret Commissions Act, ss 3(1) and 13; maximum penalty seven years’ imprisonment.
3      Secret Commissions Act, ss 4(1) and 13; maximum penalty two years’ imprisonment or $1,000 fine.
4      Secret Commissions Act, ss 4(1) and 13; maximum penalty seven years’ imprisonment.

[7] Mr Bryan, you were also a contractor at Spark. You became a Spark contractor upon the recommendation of Mr Lester. You provided your services to Spark in New Zealand through your company Victory IT Ltd (Victory), of which you were the sole director and shareholder.

[8] You both knew each other outside of your work for Spark. You shared an interest in horse-racing and were joint owners of a number of racehorses in Australia. That relationship was not disclosed to Spark.

[9] In 2012, Spark began a major upgrade to its customer services IT platform, termed the Re-engineering Programme. Mr Lester, in 2013 you…

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 Lester

Details

AGLC: R v Lester [2025] NZHC 1272
Case: [2025] NZHC 1272
Decision Date: 20 May 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Mark Andrew Lester and Sean David Bryan were sentenced for multiple charges under the Secret Commissions Act 1910 for accepting and giving gifts to agents without the principal’s consent. Bryan pleaded guilty to giving gifts in relation to contracts between Spark, an IT company, and his company Victory IT Ltd, while Lester pleaded guilty to accepting gifts from Bryan in relation to the same contracts. Both offences occurred before and after the maximum penalty for such offences increased from two years’ imprisonment to seven years’ imprisonment on 7 November 2015. The court had to determine the appropriate sentence, taking into account the purposes and principles of sentencing, including accountability, deterrence, denunciation, and rehabilitation. The court considered the amount of money involved, the duration of the offending, and the breach of trust by both defendants. The court applied a starting point of six years’ imprisonment for the offending after the increase in the maximum penalty and adjusted the starting point for the earlier offending. After applying various personal mitigating factors, such as remorse, previous good character, addiction, health issues, and the guilty plea, the court determined that the final sentence for both defendants should be three years’ imprisonment for the offence after the increase in the maximum penalty and one year’s imprisonment concurrently for the offence before the increase. The sentences were to be served concurrently, resulting in a total term of three years’ imprisonment for each defendant.

The court issued an addendum to correct errors in the sentencing notes, including the total discounts applied and the concurrent sentence for Bryan.

Orders