Middeldorp v R [2016] NZCA 92 (6 April 2016)

Last Updated: 18 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA385/2015 [2016] NZCA 92
BETWEEN	JOHANNES HENDRICK MIDDELDORP Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	J N Bioletti for Appellant M D Downs for Respondent
Judgment:	6 April 2016 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.
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REASONS OF THE COURT

(Given by Fogarty J)

[1] The appellant was convicted, after a Judge-alone trial, of seven counts of reproducing a document with intent to cause loss.^[1] He was sentenced to a term of three years’ imprisonment. He appeals the sentence, contending the term is manifestly excessive on the basis that he was “not sentenced in accordance with the verdict”.
[2] The charges concerned a scam involving selling, or endeavouring to sell, advertising in fictitious publications.
[3] The appellant was sentenced, along with his partner, Ms Bandon, by the trial Judge, Mallon J. Her sentencing notes address the behaviour of both of them. She treated their separate offending as part of one joint scam. The case had been prosecuted pursuant to s 66(1) of the Crimes Act 1961. The appellant and his co-offender were alleged to have been parties.
[4] The Judge found:^[2]

... The total amount sought from those targeted was approximately $470,000. Based on forensic accounting analysis, the money actually received into accounts controlled by you was approximately $114,000.

[5] The Judge emphasised the joint character of the criminal behaviour:^[3]

Your operation at Port Waikato was a joint one. You worked together, moving from one fictitious publication to the next, making sales in those fictitious publications to targets using a computer database set up at your home.

[6] The appellant’s partner was sentenced to 12 months’ home detention, together with 200 hours’ community work.
[7] The appellant was sentenced to three years’ imprisonment.
[8] The Judge found that the pair had obtained approximately $114,000 in revenue for advertising in publications that did not exist. For sentencing purposes, counsel calculated that the particulars raised a total sum of $116,574.15 sought of which a total of $32,885.25 was actually obtained. The difference in these two calculations was not regarded by counsel as material for the purposes of the sentencing appeal.
[9] To a degree, Mr Middeldorp and his partner operated separately with their own “clients” who were victims of the fraud. But, as already mentioned, the operation “was a joint one”.
[10] The Judge also found that the co-defendant made “more of the sales calls”:^[4]

Mr Middeldorp, you did some of the sales, but you also carried out the primary role on all other aspects of the operation.

[11] It was submitted on appeal that the sentencing Judge sentenced the appellant as if he had been found guilty not only in respect of his own actions, but for the actions of his co-defendant, unproven against him.
[12] Mr Bioletti, for Mr Middeldorp, argued that to sentence his client based on the total sum of around $114,000–$116,000 was to sentence him on “unproven actions” of his co-offender in relation to the bulk of the 900 particulars alleged.
[13] Mr Bioletti further argued that separating out Mr Middeldorp’s partner’s role would have the effect of placing the appellant’s proven conduct in the lower bracket of offending of this type so that a starting point of three years’ imprisonment was too high. Rather, he submitted, a starting point of two to two and a half years’ imprisonment is more in line with the offending. In particular, he said:

There is no point in having a system of proving criminal conduct if people are going to be sentenced for conduct they were not found guilty of. The approach adopted has lumped the total conduct proven against both offenders together and adopted a starting point on that basis. This is wrong in principle.

[14] In response, Mr Downs for the Crown pointed out that the Crown had invoked s 66(1), as already noted, and that it was possible for the Court to have convicted the appellant as a co-offender of the criminal conduct of his partner. We express no view about that; this is a sentence appeal and we approach it on the basis that the appellant stands convicted on seven counts.
[15] The Crown had laid charges so that each charge related to a different publication and behind each charge was a schedule of particulars. Each schedule identified all the businesses targeted in relation to that publication. The Judge concluded that Ms Banton sent 684 businesses a bogus publication. The appellant sent only 228. However, as already noted, the Judge also found as a fact in her sentencing remarks that the whole criminal scheme was directed by the appellant. He was the more serious offender of the two.
[16] At sentencing before the Judge, the appellant had sought to rely on the fact that he sent bogus messages to only 228 businesses out of the 912. The trial Judge disagreed:^[5]

[5] ... You had different roles in the joint operation. Ms Banton, you made more of the sales calls, and your defence at trial was that you only did the sales and were not aware of how the business was being run. I was satisfied that you were aware of and to a lesser extent involved in other aspects of the operation, such as obtaining publications from which to source advertisements and discussions with Mr Middeldorp over what to call the next publication. You knew that the publications were not going to be printed and distributed in any meaningful way.

[6] Mr Middeldorp, you did some of the sales, but you also carried out the primary role on all other aspects of the operation. Your defence at trial was that you intended to do the printing when the representations were made, but financial pressures overtook this and meant that you could not do as you had originally intended. I accepted there was a reasonable possibility of that in respect of the earliest publication in the indictment, but I was sure this was not so in respect of each of the charges on which you were convicted. I am satisfied that you were the instigator and driving force in the operation and Ms Banton went along with it. As the instigator and driving force behind the operation your culpability is higher, even though Ms Banton made more of the sales calls and consequently sent more of the reproductions that formed the particulars that proved the charges.

[17] The verdict judgment made it clear that the Judge looked to see whether the individual particulars were proven, meaning whether it had been established the defendant sent a publication to an intended victim on the date alleged. But, equally, it is clear, and made express in the sentencing judgment, that the Judge considered every instance in which a publication was sent to be part of a much larger joint criminal enterprise.
[18] On that basis, the Judge was entitled to form the conclusion that it was the appellant who was the driving force behind this criminal enterprise. If that was an allowable perspective of the sentencing Judge, we did not understand Mr Bioletti to pursue a challenge to the three-year stating point and therefore to the end sentence. The starting point and end sentence are in line with the recent decision of this Court in Helsby-Knight v R.^[6] That case involved similar offending in relation to 113 victims who paid to the defendant $156,790. The period of offending was approximately 11 months. The Court assessed culpability with reference to R v Varjan,^[7] noting the offending involved deception on a commercial scale, sophistication and significant premeditation. The Court upheld a start point of three years six months’ imprisonment, noting it to be at the lower end of the range.
[19] Here the loss in relation to this case is less than in relation to the offending of Mr Helsby-Knight. But there are more victims and the offending was conducted for a slightly longer period. The appellant’s conduct involved fraud on a commercial scale, with sophistication and premeditation. And, on that basis, the Judge was entitled to take a starting point of three years.
[20] The application for an extension of time to appeal is granted.
[21] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 258(1), which carries a maximum penalty of 10 years imprisonment.

^[2] R v Middeldorp [2015] NZHC 1337 at [4].

^[3] At [5].

^[4] R v Middeldorp, above n 2, at [6].

^[5] R v Middeldorp, above n 2, at [5]–[6].

^[6] Helsby-Knight v R [2015] NZCA 315.

^[7] R v Varjan CA97/03, 23 June 2003.