R v Ortmann - [2023] NZHC 1504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-2394

[2023] NZHC 1504

THE KING

v

MATHIAS ORTMANN BRAM VAN DER KOLK

Defendants

Hearing: 15 June 2023

Appearances:

DJ Boldt and FRJ Sinclair for the Crown

GM Illingworth KC and PJK Spring for the Defendants

Sentencing:

15 June 2023

SENTENCING NOTES OF FITZGERALD J

Solicitors: Crown Law, Wellington
Keegan Alexander, Auckland

To:G Illingworth KC, Auckland D Boldt, Wellington

R v ORTMANN [2023] NZHC 1504 [15 June 2023]

Introduction

[1] Mr Ortmann and Mr van der Kolk, you appear before me for sentencing having pleaded guilty to four charges arising out of your involvement in the establishment and operation of the online platform Megaupload Limited (Megaupload). You have each pleaded guilty to two charges of participating in an organised criminal group, which for the majority of the time Megaupload operated, had a maximum penalty of five years’ imprisonment.1 This was raised to a maximum of 10 years’ imprisonment for the last two years of Megaupload’s operations.2 You have also each pleaded guilty to a charge of conspiring to cause loss by deception,3 and to a charge of conspiring to dishonestly obtain documents,4 both of which carry a maximum penalty of seven years’ imprisonment.

[2] As many of those who are here present in Court today will be aware, you were arrested in early 2012, following the United States of America seeking your extradition under the extradition treaty with New Zealand.5 From 2012 to 2021, each of you, together with Mr Dotcom and one other, were the subject of extradition proceedings which progressed from the District Court through to the Supreme Court’s judgment delivered in November 2020,6 and then the Court of Appeal’s decision in 2021 dealing with residual matters arising from the Supreme Court judgment. Following those proceedings, which concluded that you were eligible for surrender, the United States’ request for your surrender for extradition passed to the Minister of Justice.

[3] Your counsel advises that following final resolution of the extradition proceedings, you offered to submit to a prosecution in New Zealand under New Zealand law, instead of exercising any further rights in relation to the extradition process. In short, I am told that after a number of months of negotiation, an agreement was reached pursuant to which the charges I have just mentioned would be laid against

1      Crimes Act 1961, s 98A.
2      Section 98A(1) was amended by the Crimes Amendment Act 2009, s 5.
3      Sections 310 and 240.
4      Sections 310 and 228.
5      Treaty on extradition between New Zealand and the United States of America 791 UNTS 253 (signed 12 January 1970, entered into force 8 December 1970). See also Extradition (United States of America) Order 1970.
6      Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 [Supreme Court extradition judgment].

you in New Zealand, you would plead guilty to them, the United States would no longer seek your extradition, and…

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 Ortmann

Details

AGLC: R v Ortmann [2023] NZHC 1504
Case: [2023] NZHC 1504
Decision Date: 15 June 2023

CaseChat Overview and Summary

Mathias Ortmann and Bram van der Kolk were convicted for their involvement in the establishment and operation of the online platform Megaupload, which engaged in widespread copyright infringement. The defendants were sentenced in the High Court of New Zealand after pleading guilty to charges including conspiracy to defraud and participating in an organised criminal group. The court found their culpability to be high due to the sophistication, scale, and duration of their offending, which caused significant harm to copyright holders. A starting point of ten and a half years' imprisonment was determined for Ortmann, and ten years for van der Kolk, reflecting their culpability. However, this was reduced by a combined discount of 75 percent due to factors such as their early guilty pleas, cooperation with authorities, and remorse. This resulted in Ortmann being sentenced to two years and seven months' imprisonment, and van der Kolk to two years and six months' imprisonment, to be served concurrently. The court also made reparation orders requiring the defendants to forfeit funds in their overseas bank accounts.

Orders