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The Queen v John Archibald Banks: Sentencing Notes

[Full sentencing notes: 2014_NZHC_1807.pdf]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI 2012-085-009093 [2014] NZHC 1807

THE QUEEN
v
JOHN ARCHIBALD BANKS

Hearing: 1 August 2014


Date: 1 August 2014

SENTENCING NOTES OF WYLIE J


[1] Mr Banks, you may remain seated until I ask you to stand.

[2] You appear for sentence today, having been found guilty of one charge of transmitting a return of electoral expenses, knowing it to be false in one or more material particulars. This is an offence pursuant to the now repealed s 134(1) of the Local Electoral Act 2001. The maximum penalty is two years’ imprisonment or a fine of $10,000.

Relevant Facts

[3] My analysis of the relevant facts is set out in my reasons for verdict delivered on 5 June 2014.1 [4] In 2010 you were a candidate for the position of Mayor in the new Auckland Super City.

[5] You put together an experienced campaign team and you and your team set out to raise approximately $1 million to fund your campaign. You were hoping to persuade 10 major donors to each contribute $25,000 to the campaign, and also to obtain smaller donations from other supporters.

[6] Mr Kim Dotcom had recently settled in New Zealand and you first met him in April 2010. Subsequently, in June 2010, you and your wife attended a private luncheon hosted by Mr Dotcom and his wife, Mona, at their residence in Coatesville. The subject of your mayoral campaign was raised at that lunch. The discussion extended to the campaign’s funding and Mr Dotcom offered to donate $50,000 to your campaign. You accepted that offer. You requested that the donation should be split and made by way of two payments – each of $25,000. You explained this request to Mr Dotcom, saying that it would enable you to keep the donation anonymous. When Mr Dotcom asked you about this, you said that if you were to help Mr Dotcom, it would be better if no one knew about the donation.

[7] Two cheques were written, each of $25,000. They were both dated 9 June 2010. They were drawn on Megastuff Limited, a company run by Mr Dotcom, and they were signed by him. The cheques were deposited into a drop box at the Westpac Bank in Albany on 14 June 2010. The cheques were then presented and the monies were credited to your campaign bank account.

[8] In subsequent discussions with Mr Dotcom and his head of security, a Mr Wayne Tempero, you acknowledged receipt of the cheques. You also had a discussion in January 2012 with Mr Dotcom’s solicitor, a Mr Greg Towers, in which you referred to the election support Mr Dotcom had given to you.

[9] A member of your campaign team, Mr Hutchison, acted as the treasurer, responsible for campaign finances. He received the bank statements and he was the only person who had online access to the account. You kept yourself at arm’s length from the financial side of the campaign.

[10] Pursuant to the Act, you were required to file an electoral return within 55 days of the successful candidate being declared. In the event, your campaign was unsuccessful and your principal opponent, Mr Brown, was declared Mayor on 14 October 2010.

[11] The electoral return was required to set out your electoral expenses, the name and address of each person who had made an electoral donation to you, and the amount of each electoral donation. An electoral donation was defined to mean a donation of more than $1,000. If an electoral donation of money, or of the equivalent of money, was made to you anonymously, and the amount of that donation exceeded $1,000, then the amount of the donation and the fact that it was received anonymously, also had to be set out. An electoral donation was anonymous if it was made in such a way that you did not know who made the donation.

[12] Mr Hutchison prepared the electoral return, and it was his decision whether or not donations to your campaign should be recorded as being anonymous. He did not ask you where particular donations had come from. Rather, he was dependent on you telling him about any donations you were aware of. You were aware of this.

[13] The return prepared by Mr Hutchison was signed by you on 9 December 2010. You did not read it and there was no significant discussion about the donations part of the return. You asked Mr Hutchison whether the return was true and correct, and you received his assurance that it was. There were five donations of $25,000 recorded. All were recorded as being anonymous and none of them were attributed to either Mr Dotcom or Megastuff Limited.

[14] I found that when you signed the electoral return, you knew that you had not provided your campaign team with the critical information, namely that you knew about the donations from Mr Dotcom. I considered that you had engineered the situation, that you had the opportunity to check the return, but that you refrained from doing so. I found that you sought to insulate yourself from actual knowledge of the falsity in the return by seeking an assurance from Mr Hutchison that it was accurate.

[15] I found you either had actual knowledge of the falsity when you signed the return, because you knew that you had not given to Mr Hutchison the information he required, or that you deliberately chose not to check the return to see whether the donations from Mr Dotcom/Megastuff were properly disclosed, because you had no real doubt as to what the answer was going to be, and wanted to remain in ignorance.

[…]

Sentence

[48] Mr Banks, will you please stand.

[49] In respect of the offence of breaching s 134(1) of the Local Electoral Act 2001, you are sentenced to a term of community detention of two months. You are to report to the Mt Eden Service Centre, 17–25 Boston Road, Mt Eden, by 4.00 pm on Monday, 4 August 2014. There is to be a curfew between the hours of 7.00 pm and 7.00 am every Thursday, Friday, Saturday and Sunday night for the length of this sentence. The first curfew is to begin on Thursday, 7 August 2014. The curfew address is [suppressed].

[50] In addition, you are sentenced to undertake 100 hours’ community work.

[51] The sentences are to be served cumulatively.

[…]

Addendum

[57] In open court, I indicated that the two sentences imposed by me, namely community detention and community work, should be served cumulatively. I was in error in that regard. The two sentences must be served concurrently. That is required pursuant to s 69D(3) of the Sentencing Act.

[58] I convened a telephone conference with Mr Jones and Mr Dacre. They agreed that I should issue this addendum to clarify the position. They did not seek that Mr Banks be brought back into open court. The correction does not impose a greater sentence on him. Rather, it is to his advantage.

[59] I direct that the two sentences imposed by me are to be served concurrently, and not cumulatively.

[Full sentencing notes: 2014_NZHC_1807.pdf]

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