R v Barr DC Kaikohe CRI-2010-029-437 [2012] NZDC 1461 (10 September 2012)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT KAIKOHE

_{CRI-2010-029-000437}

THE QUEEN

v

PAUL MATHEW BARR

Hearing: 10 September 2012

Appearances: N Dore for the Crown

C Cull for the Prisoner

Judgment: 10 September 2012

_{NOTES OF JUDGE D J McDONALD ON SENTENCING}

[1] Mr Barr, you have pleaded guilty on arraignment to three charges of obtaining pecuniary advantage by deception. On 17 July 2012, I gave you a sentence indication following written submissions and oral submissions from both the Crown and your lawyer. You accepted that sentence indication by your plea.

[2] Depositions were held on 16 September 2010. Six written statements were filed, along with five Eastlight folders of exhibits. On 21 April 2011, an application under s 347 Crimes Act 1961, filed by Ms Cull on your behalf, came before me. I had a robust discussion with counsel and, in effect, granted the Crown indulgence to get the file in some sort of order that not only I could follow but, if the matter

_{went to trial, a jury could follow.}

R V BARR DC KAIH CRI-2010-029-000437 [10 September 2012]

[3] Ms Cull abandoned her s 347 application. She sought a sentence indication on that date. On that date I was unable to do that because of the difficulties with the file. The file has now been put in state that at least I can follow.

[4] I sentence you today on the agreed summary of facts given to me at the sentence indication hearing.

[5] In February 2008, you advertised in E-Commerce Business on TradeMe. TradeMe is a well known website whereby people buy and sell all manner of things.

[6] The business that you advertise was a website hosting an E-Commerce solution. It claimed a turnover of $1200 a week. The first complainant, Mr Bell, trading under Easy Web, emailed you seeking further information. You responded to that and advised, amongst other things, that it turned over $64,000 in the last financial year, and the overheads were minimal as the business was run from home. You claimed to be selling domain names, website hosting, website design and shopping carts. You said that the database had 122 domain clients, approximately, and you maintained approximately 20 sites doing website design changes as needed for clients; 109 of the clients were paying yearly, 15 were paying monthly and three were paying quarterly.

[7] While you were in discussions with Mr Bell on 2 March 2008, the second complainant, Mr Glover, responded to your TradeMe advert. He expressed an interest. You gave him the same information. You then appeared to play the two of them off against each other, saying that there was another serious bidder in the market. On 4 March 2008, Mr Glover paid you $2500. Shortly thereafter Mr Bell paid a deposit. The balances were then paid by both men.

[8] What has been clarified this morning, or confirmed to me, is that you used TradeMe not to sell the business, but advertise it. Agreements for sale and purchase were drafted with legal assistance for both men; of course, neither knew the other. You received from Mr Bell $22,500 and from Mr Glover $22,000 for essentially the same business.

[9] In November 2008, you listed the same sort of business again for sale. It overlapped some of the customers from the earlier and some supposedly new ones Mr Brook Fitness ended up purchasing it from you, paying $30,000. Again an agreement for sale and purchase was entered into it.

[10] After purchasing the business, each of the three complainants discovered, over a period of time, that the domain names and details had been passed onto the other two. Some of the domain names were not registered or did not exist. Some of the domain names and some of your alleged customers were not customers of yours at all and were not able to be sold by you. That is the deception; you sold the same business essentially to three different people. Some of the items you were selling, you either did not have because they belonged to someone else, or were purely fictitious.

[11] It is difficult to set the total loss, because you did sell something to someone of value. It is entirely possible as Ms Cull has submitted that you sold something of value to one or other of the first two and something of value, a different value, to the third. You obtained $74,500 from these three men, or their companies. I set the total loss at $50,000 as a rough and ready measure. Despite further submissions from counsel, I have not been able to quantify it any more than that.

[12] I take into account the purposes and principles of sentencing which are well known. They need to deter people who, by deception, con other people into parting with money. To impose the least restrictive outcome that I can.

[13] I must first set a starting point. I must look at your offending. I see no reason to depart from the starting point I set on the sentence indication of two years.

[14] There are no personal aggravating personal factors calling for any further uplift.

[15] In mitigation, there is your plea of guilty. You are entitled to 20 percent in my view. Although it came on arraignment, and at a time when the file was in a state that everybody could follow. You are entitled to some further discount for the mental

health issues. I have read the latest report from Dr Brown in that regard which is only a week or so old. You are also entitled to a further discrete discount for your otherwise good character.

[16] One of the factors I must take into account is the increased use of TradeMe as an electronic means of buying and selling not only small items but much larger items of great value. I suppose it reflects modern society where things are done electronically without persons actually speaking to each other. Those of us who grew up in a more uncomplicated time would speak to people when we were buying something, so that you could look them in the eye and see whether, in fact, they were worthy of doing business with. But this is the modern way of carrying on business. We have moved a long way from the village marketplace. However, the old adage still applies that “buyer beware”. People are going to use this modern technology; they must attempt to protect themselves. Here they did by entering into agreements for sale and purchase with you. You, by doing that, continued on with your fraud.

[17] I must consider reparation; that is the most difficult part of the sentencing. The first complainant, Mr Bell, claims to be out of pocket $22,500. Early on in the piece, on 28 September 2010, he took you to the Disputes Tribunal and, on that day, received an agreed settlement of $8000 to be paid by you. He now comes along to this Court on 10 September 2012 and says, “Well, yes, I did settle for $8000, but now I want you in the criminal jurisdiction to order reparation for the balance.” I have read the Crown’s submissions in that regard.

[18] The Sentencing Act 2002 is not to be used as a back door way of getting further money where a settlement has already been agreed earlier in the civil jurisdiction. I award no further reparation to Mr Bell.

[19] Mr Glover, the second complainant, has agreed to settle for $11,000. Your learned counsel has a cheque for that amount. I will order reparation for $11,000 in favour of Mr Glover and that is to be paid immediately.

[20] The third complainant, Mr Fitness, I have difficulty with settling any reparation for him. In his first statement to the police he claimed $30,000. In the

first victim impact report filed before the sentencing indication, he claimed

$167,000. In his latest victim impact report filed a few days ago he is now back to

$30,000, but he says only half of which is his. I am told and it has not been answered anywhere in the information coming from the Crown as to whether he has on-sold what you sold to him and, if he did, how much he got for it. Mr Fitness, because of what I have said, if he wishes to pursue you he can do so civilly. I make no order of reparation in relation to him.

[21] Having started at two years’ imprisonment and giving you 20 percent discount for your plea of guilty and further discrete discounts in relation to the reparation of Mr Glover for your mental health issues and your previous good character, I consider that an end sentence of 14 months is appropriate.

[22] I must consider whether home detention should be imposed upon you. As I indicated to you in the sentence indication that would be the ultimate sentence. Home detention is not a soft option. It means that you have to remain at home. It will be difficult with the issues that have been raised in the latest psychiatric report. It is not an automatic halving of the sentence of imprisonment. I must take into account that you have been on bail, that this has been hanging over your head for some considerable time and that your (and your family’s) ultimate goal is that you return to Australia to live permanently; that may well mean leaving your children here.

[23] I consider the absolute minimum sentence of home detention that I can impose upon you, taking all those matters into account, is one of five months, on the conditions contained in the pre-sentence report and at the address contained in the pre-sentence report.

[24] The home detention sentence will commence tomorrow, because of the need for you and your sister to travel up to Auckland to pick up another sister who is coming over to assist. I make no order in return for your passport. If further down it is discussed with Ms Cull to make an application to end your home detention on the basis you are returning permanently to Australia then, if that order is made, your passport can be returned then.

[25] I had before me an application properly made by the Northern Advocate to take your photograph. After discussions between Ms Cull and the learned reporter from that fine publication, he does not seek to pursue his application and I am grateful to him for that. Nothing would have been gained by having your photo published, despite the need for open and transparent justice to take place.

D J McDonald

District Court Judge