Sentencing — making a false or misleading representation in trade — heat pumps — Sentencing Act, ss 12 & 32 — Fair Trading Act 1986, ss 13 & 40 — Commerce Commission v Steel and Tube Holding Ltd [2019] NZHC 2098 — Zhang v R [2019] NZCA 507 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 883 — Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 — R v Williams [2009] NZSC 41. The defendant company appeared for sentence on 10 charges of making a false or misleading representation in trade. It was a heat pump-servicing company based in Christchurch. The charges arose from a period in 2016-2017, and related to heat pump owners (the complainants) in Otago and Southland. Most of the 10 complainants had agreed to get their heat pump serviced after receiving cold calls from the defendant, although a few of them had booked the defendant's services. In each case, the complainants were told that their heat pump was leaking gas and required a gas top-up, which was an extra charge. Most of the complainants agreed to pay for the top-up, although several of them refused. In fact none of the heat pumps did require a top-up, and in any case the defendant did not actually carry out the top-ups despite claiming to have done so. Media reports eventually led to a Commerce Commission investigation of the defendant. The defendant argued that the offending was the actions of a single rogue employee; in turn, the employee in question alleged that he had committed the offending at the direction of the defendant. Ultimately however the defendant accepted responsibility on the grounds that the employee had been acting in the scope of a representative of the defendant, and that the defendant had failed to properly monitor and supervise its employees, should have been on notice of the offending conduct, and had failed to investigate complaints about the offending conduct. The Court set a start point for fine of $150,000 and allowed discounts for previous good character and lack of prior convictions, cooperation with the investigation, attempts to mitigate the offending, offer to attend restorative justice, offer to pay reparations, waiving of fees, and guilty plea. Further, the defendant had the matter hanging over its head for almost two years before the Commerce Commission confirmed that it intended to prosecute. The various discounts reduced the fine to $92,613, and after examining the defendant's financial position, the Court set the final fine at $75,000, along with reparations to the complainants for losses they had suffered. Judgment Date: 17 April 2020