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Commerce Commission v Cullen [2024] NZDC 14374

Published 12 December 2024

Sentencing — promoting a pyramid selling scheme — disgorgement order — cryptocurrency — valuation of cryptocurrency — Fair Trading Act 1986, ss 24 & 40A — Criminal Proceeds (Recovery) Act 2009 — Commerce Commission v Steel & Tube Holdings Ltd [2020] NZCA 549 — Commerce Commission v Rowe & Ors Auckland DC, CRI 2012-004-016817, 29 May 2014 — Commerce Commission v Halafihi Saimoni [2023] NZDC 26381 — Henderson v R [2017] NZCA 605 — Ruscoe v Cryptopia Ltd (in liq) [2020] NZHC 728, 2 NZLR 809; [2020] NZHC 728. The defendant was to be sentenced on five representative charges of promoting a pyramid selling scheme. The scheme involved cryptocurrency, and it operated via the internet. It was a global enterprise, and the defendant had been its main representative in New Zealand. She promoted the scheme by making posts to Facebook and by posting videos to YouTube, Zoom and Facebook. She also ran at least one in-person event. The defendant profited by more than $5.3 million from her offending, while the victims of the scheme lost almost $9 million. The prosecutor submitted that it was the most serious offending in the 40-year history of the Fair Trading Act. While under investigation the defendant had posted a video in which she boasted of her offending and implied that the courts were powerless to stop her. The Court considered that her behaviour required denunciation and deterrence, and set a start point for fine at $600,000, the maximum amount allowed under the legislation. There were no mitigating features, so the final fine remained at $600,000. The Court also made a disgorgement order, that the defendant repay the $5.3 million that she had made from her offending. The defendant lived overseas, was absent from sentencing and was without representation. Judgment Date: 24 June 2024.