R v Middeldorp - [2015] NZHC 1337

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-085-10823

CRI-2013-085-10822 [2015] NZHC 1337

THE QUEEN

v

JOHANNES HENDRIK MIDDELDORP NOELENE KAY BANTON

Hearing: 12 June 2015

Appearances:

G J Burston, P W Gardyne and M J Ferrier for the Crown
J Bioletti for Mr Middeldorp
A Courtney for Ms Banton

Sentence:

12 June 2015

SENTENCING NOTES OF MALLON J

[1] Mr Middeldorp and Ms Banton you appear for sentencing having each been convicted of seven counts of reproducing a document with intent to cause loss1 following a judge-alone trial before me.2

Circumstances of the offending

[2] The charges concern a scam involving selling or endeavouring to sell advertising in fictitious publications. The general modus operandi of the scam is set out in my judgment setting out the reasons for my verdicts. As part of that scam an advertisement was reproduced for the targeted business’s approval which gave the
appearance of legitimacy. Each of the charges related to a differently named

1 Crimes Act 1961, s 258(1) (maximum penalty of 10 years imprisonment).
2 R v Middeldorp [2015] NZHC 951. The convictions were entered by me following the delivery of my verdicts in Court.

R v MIDDELDORP [2015] NZHC 1337 [12 June 2015]

fictitious publication in which it was represented that the advertisement would be placed.3 At the time of making those representations there was no intention to print and distribute the publications in any meaningful way and you did not do so. Mr Middeldorp arranged to print only enough copies as were needed to send to businesses in order to obtain payment from them.

[3] Your scam was run from your home in Port Waikato. Others were involved in similar operations elsewhere. One of those operations was run by Anthony Hendon with the assistance of others, including primarily, James Burns. They pleaded guilty before trial and have been sentenced.4 You, Mr Middeldorp, were in regular contact with Mr Hendon and strategies and other aspects of your operations were shared, albeit that you were cautious in what you told Mr Hendon because you were effectively competing for the same or similar targets.

[4] The charges on which you were convicted are for an operation that was on a lesser scale. They cover over 900 individual instances of this conduct aimed at over
690 mainly small businesses and some charities from around the country. The price you charged for the fictitious advertising varied, but was generally in the range in round figures of $300 to $500 per advertisement.5 On occasion the price charge for an advertisement was more than $1,000. Most businesses were targeted once or twice. Some were targeted four or five times. Those that agreed to pay for the advertisements on multiple times were referred to in this industry as “bunnies”. Your offending took place over the period from July 2011 to October 2012 and only came to an end when you were arrested. The total amount sought from those targeted was
approximately $470,000. Based on forensic accounting…

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 Middeldorp

Details

AGLC: R v Middeldorp [2015] NZHC 1337
Case: [2015] NZHC 1337
Decision Date: 12 June 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the defendants, Johannes Hendrik Middeldorp and Noelene Kay Banton, were convicted of seven counts of reproducing a document with intent to cause loss under section 258(1) of the Crimes Act 1961. The charges stemmed from a scam where the defendants sold or attempted to sell advertising in fictitious publications, with each charge relating to a different fictitious publication. The scam involved targeting small businesses and charities across the country, with the defendants seeking approximately $470,000 but receiving around $114,000.

The legal issues before the court included determining the appropriate starting points for sentencing given the nature and scale of the offending, the roles of each defendant, and their respective levels of culpability and remorse. The court also considered whether personal mitigating factors, such as age, health, and remorse, warranted a sentence other than imprisonment for one of the defendants.

The court determined that Middeldorp, as the instigator and driving force behind the operation, should be sentenced to three years imprisonment. The court found that Banton, while complicit, was not the primary instigator and thus deserved a lesser sentence. Despite her lack of a guilty plea, the court accepted her genuine remorse and her difficult personal circumstances, including her age and health issues. Consequently, Banton was sentenced to 12 months of home detention and 200 hours of community work. Both sentences were to be served concurrently on each charge. The court also ordered the forfeiture of certain property used in the offending.

Orders