THE QUEEN v LEONARD FRANK CHE FONUA [2001] NZCA 164 (24 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 34/01

THE QUEEN

V

LEONARD FRANK CHE FONUA

Hearing:	24 May 2001
Coram:	Keith J Goddard J Chambers J
Appearances:	H S Parata for the Appellant K Raftery for the Crown
Judgment:	24 May 2001

judgment of the court DELIVERED BY GODDARD J

Introduction and Background

[1] The appellant pleaded guilty on arraignment in the District Court to one charge of receiving (s 258(1)(a) Crimes Act 1961) and was discharged pursuant to

s 347 Crimes Act on alternative charges of burglary and unlawfully taking a vehicle.The maximum penalty for receiving is 7 years' imprisonment.

[2] The stolen property was taken from a marine spraying company and comprised items and equipment associated with that business, $140 in petty cash and a van valued at $3000.The van, containing most of the stolen property, was found two days later, parked in a street close to where the appellant was living at the time.His mother's former partner, who had recently been made redundant from the marine spraying company, was initially also charged with the same offences but subsequently discharged on all counts.

[3] The appellant is a citizen of the United States of America where he lives with his father.At the time of offending he was in New Zealand on holiday staying with his mother.Upon arraignment he was remanded to 31 October 2000 for sentence and preparation of a pre-sentence report. On 31 October 2000 he appeared with counsel, Mr Parata, but no pre-sentence report was available.Mr Parata however invited the Judge to consider discharging the appellant without conviction pursuant to s19 Criminal Justice Act 1985 based on the submission that the appellant, aged 19 years:

(a) had no previous convictions;

(b) had been led astray by an older relative ... who had since been granted a discharge pursuant to section 347 of the Crimes Act;

(c) would have been eligible for diversion had the offences not been serious;

(d) was in New Zealand on holiday but usually lived in the United States of America with his father and attended schooling there which had been interrupted; and

(e) was intending to return to USA to resume education there as soon as these proceedings were finalised.

[4] The Judge requested a "stand-down" report to be provided by the Probation Service and adjourned the sentencing to 6 November 2000, noting the file as follows:

31.10.00 F Adj. 6.11.00, 2.15(p.m.) for Parata to advise me if Def. returning to USA and when.S19 to be considered if leaving - o/w (otherwise) Com/Serv. BTC.

[5] Unbeknown to either the Judge or Mr Parata, the appellant was on bail at the time on charges of common assault (allegedly committed on 21 May 2000) and assault with a weapon (allegedly committed on 24 June 2000).He had pleaded not guilty to both charges, which had been given hearing dates of 27 November 2000 and 12 February 2001 respectively.

[6] On 6 November 2000 the appellant appeared for sentence, again represented by Mr Parata.Although a transcript of the sentencing notes is not available, the Judge has filed a memorandum for the Court in which he advises his sentencing decision as follow:

On 6 November I raised the matter [of the outstanding charges] with Mr Parata when Fonua appeared before me.Mr Parata appeared to be unaware of the new charges.I believe he advised me that Fonua's father in the USA was making arrangements to fly him over there as soon as the present matter before me was determined.I pointed out that Fonua would not be able to leave New Zealand until the other charges were finalised.

I then told Mr Parata I believed his client was not being forthright with either his counsel or me.I told Fonua that, in my view, the circumstances of his offending in the present matter and his overall conduct whilst in New Zealand did not merit a grant of discharge under section 19.I then entered a conviction and sentenced him to community service.

I am not aware of the final disposition of the two charges.

[7] The sentence of community service imposed followed the recommendation of the probation officer and was for 80 hours service.

Grounds of Appeal

[8] The appellant now appeals against the refusal of the District Court Judge to discharge him without conviction pursuant to s19 Criminal Justice Act.Mr Parata submits that the Judge erred by taking into account the outstanding charges faced by the appellant, as this was contrary to the presumption of innocence.He further submitted that the absence of reference by the Judge in his memorandum to a facsimile sent by the appellant's father in the United State of America with details of his pending enrolment at a business college in Southern California at end November 2000 and failure to mention the nature of the relationship between the appellant and his mother's former partner also amounted to errors.

[9] Having regard to the merits of the appellant's situation Mr Parata submitted that his appeal should now be allowed and a discharge without conviction granted by this Court.

Section 19 Criminal Justice Act 1985

[10] Section 19 Criminal Justice Act provides:

19.Discharge without conviction

(1) Where a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction unless by any enactment applicable to the offence a minimum penalty is expressly provided for.

(2) A discharge under this section shall be deemed to be an acquittal.

(3) A court discharging an offender under this section may make any order for payment of costs or for the restitution of any property that it could have made under any enactment applicable to the offence with which the offender was charged if it had convicted and sentenced the offender, and the provisions of every such enactment shall apply accordingly.

Legal Principles

[11] The power to discharge pursuant to s19 is a matter of discretion for the sentencing Judge at first instance.It is not for an appellate Court to interfere with the exercise of that judicial discretion unless there has been a wrongful or improper exercise of it.It is not sufficient that a Court, considering the matter on appeal, may have exercised the discretion differently; rather, it must be demonstrated that the sentencing Judge exercised his or her discretion on a wrong basis:Halligan v Police [1955] NZLR 1185.

[12] The test for the proper exercise of discretion in the application of s19 of the Criminal Justice Act is well established.The Court is required to balance all relevant public interest considerations as they apply to the particular case; to have due regard to the nature of the offence and the gravity with which it is viewed by Parliament; to have due regard to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his/her career, pocket, reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances.These criteria are set out by Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233 at 241, considering the predecessor to s19, s42 Criminal Justice Act 1954.Concluding that list of criteria, Richardson J said:

...if the direct and indirect consequences of a conviction are, in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given...

[13] In Roberts v Police [1991] 1 NZLR 205 at 210 (CA) the Court set out the primary consideration under s19, based on Richardson J's statement in Fisheries Inspector above:

[A]fter considering all the relevant circumstances, it is a proper exercise of the Court's discretion `if the direct and indirect consequences of the conviction are, in the Court's judgment, out of all proportion to the gravity of the offence'.That must be the over-riding consideration.The words `out of all proportion' point to an extreme situation which speaks for itself.

Discussion

[14] It is clear from the Judge's file note of 31 October 2000 that a discharge without conviction pursuant to s19 Criminal Justice Act would be considered at sentencing if it were confirmed to the Court that the appellant was immediately returning to the United States of America as indicated by Mr Parata.Mr Parata's indication on 31 October 2000 was that the appellant was in New Zealand on holiday but lived in the United States of America with his father and attended schooling there which had been interrupted; and that he was intending to return to the United States of America to resume his education there "as soon as these proceedings were finalised".On the date of sentencing however that situation had proved to be impossible.The appellant was, at that date, on bail on outstanding charges which were not due to be disposed of until 27 November 2000 and 12 February 2001 respectively.Thus any substance to the indications Mr Parata gave on 31 October evaporated.Likewise the basis upon which Mr Parata had urged a s19 discharge had also evaporated. The Judge was thus required to sentence the appellant in the circumstances that existed at the time, which he did.Given the leniency of the sentence, it is clear that he gave due emphasis to the appellant's age, his lack of relevant convictions and the effect of any more mature influence on him at the time of offending.

[15] As it transpires, the appellant was not convicted on either of the outstanding charges.The common assault charge was found to have an insufficient evidential basis and the charge of assault with a weapon was dismissed for want of prosecution.That fortuitous outcome has no retrospective relevance to the sentencing decision of 6 November 2000 however. Nevertheless, in the interests of thoroughness, we have considered whether the appellant's acquittal on those charges would merit a review by this Court of the sentence of community service imposed.We are satisfied it does not.

[16] The offence of receiving is serious.The offending itself was of a substantial nature and could not be described as minimal.The principles relating to discharge without conviction are as set out above.None of the factors advanced by Mr Parata in support of a s19 discharge favour the extension of such special leniency:the entry of a conviction in New Zealand will not prevent the appellant from returning to the United States of America; Mr Parata conceded that the appellant is not precluded from enrolment in the business college he is to attend; and no other consequence of a direct or indirect dire nature was able to be advanced.In our view the gravity of the offence is not outweighed in any degree by the appellant's circumstances, both present and future.As noted, the sentence of 80 hours community service was a lenient one and there was no error on the part of the sentencing Judge and no new matter to persuade this Court to disturb the sentence imposed.

Judgment

[17] The appeal is dismissed.

Solicitors:

Meredith Connell, Auckland, for the Crown