Lilo v R [2021] NZCA 642 (2 December 2021)

Last Updated: 7 December 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA468/2021 [2021] NZCA 642

	BETWEEN	ALANAH LILO Appellant
	AND	THE QUEEN Respondent

Hearing:	8 November 2021
Court:	Collins, Duffy and Dunningham JJ
Counsel:	H G de Groot and B H Woodhouse for Appellant J M Pridgeon and F J C Faull for Respondent
Judgment:	2 December 2021 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

• [1] On 19 February 2021, Ms Lilo pleaded guilty to one charge of arson. On 2 July 2021 Judge Sharp declined Ms Lilo’s application for a discharge without conviction and sentenced her to 12 months’ intensive supervision and 100 hours’ community work.^[1]
• [2] Ms Lilo appeals that decision. She says the Judge overstated the gravity of the offending and, as a result, did not correctly weigh up whether the consequences of the conviction were out of all proportion to the gravity of the offending.

The offending

• [3] Between March and June 2020, 14 cell-phone towers located in Auckland were the subject of arson attacks.^[2] The primary offender, Mr Simione Fuasino, was charged in respect of all 14 attacks. Ms Lilo was charged, as a party, in respect of one arson attack on a Vodafone cell tower in Papatoetoe in the early hours of 28 April 2020.
• [4] The arson was planned and carried out by Ms Lilo and Mr Fuasino. Text messages between Ms Lilo and Mr Fuasino prior to the arson demonstrate this. On 17 April 2020, in the course of a text conversation with Ms Lilo, Mr Fuasino said “[a]yeee keen too do some poles” to which Ms Lilo replied “[h]aha yea”. On 26 April 2020, Mr Fuasino and Ms Lilo had a further text conversation in which he said “[t]ake me to do a burn den I’ll chuck u 250 tmrw?”. He also asked her “can we go look for a pole to burn” and Ms Lilo replied “[y]eh hahahaha”. On 27 April 2020, there were further text messages between Mr Fuasino and Ms Lilo where she said “I’m just the one for the bolts only ay” and where he then messaged a third party seeking a “grinder”.
• [5] Ms Lilo then called Mr Fuasino just after midnight on the same night and drove Mr Fuasino to a Vodafone 5G cell tower at the corner of Capital Place and Pah Road, Papatoetoe. The cell tower had an adjacent electrical box. Mr Fuasino removed the bolts, forced the cover of the box on the base of the tower open and set it on fire, along with exposed cables on the electrical box. This rendered the cell tower inoperable. A member of the public observed the fire and called emergency services. The fire service extinguished the fire. On the morning following the arson, Ms Lilo exchanged text messages with Mr Fuasino stating “[t]his is amazing” and “[s]he went viral”. She later sent him an image of a burning cell-phone tower and a Fire and Emergency NZ announcement about the incident.
• [6] The loss caused to Vodafone New Zealand Ltd, as a result of this offending, was $169,061.89.

The District Court decision

• [7] When Judge Sharp heard Ms Lilo’s application for a discharge without conviction he had the following documentation in support of her application:

  (a) an affirmation from Ms Lilo;
  (b) a psychiatric report by Dr Lokesh;
  (c) text correspondence between Ms Lilo and another person;^[3]
  (d) medical records from various mental health providers;
  (e) a number of character references, primarily from family members, in support of Ms Lilo; and
  (f) a pre-sentence report.

• [8] In considering the gravity of the offending in the District Court, the Judge first discussed this issue in the context of the sentencing exercise. He observed that arson was “one of the more serious crimes in the Crimes Act 1961”^[4] but also acknowledged that despite the inherent seriousness of the offence, each case needed to be considered in light of its own particular circumstances.
• [9] In this case, the aggravating features of the offending were the extent of Ms Lilo’s involvement in planning the offending, the extent of the damage, the fact the financial loss to the victim could not be addressed by reparation from Ms Lilo, and the potential risk to fire fighters and the public, although the Judge acknowledged there was no direct risk of harm to an individual.^[5] Judge Sharp adopted a two-year starting point saying this reflected “a serious piece of offending”.^[6]
• [10] The Judge then considered factors which reduced the gravity of the offending for the purposes of granting a discharge without conviction, saying this allowed “other personal factors to be taken into account”.^[7] In this regard, he noted Dr Lokesh’s report which assessed Ms Lilo as at low risk of future offending. He also noted Dr Lokesh’s opinion that Ms Lilo’s medical state impacted on her ability to appreciate the outcome of her actions and the degree of planning and predetermination that she would have been capable of at the time.^[8]
• [11] The Judge also said the gravity of the offending was reduced by Ms Lilo’s lack of previous convictions and her good character as evident from the material from her whānau and others supporting her.^[9] He noted she was 24 at the time of offending, which would not ordinarily qualify her for a youth discount, but may in part have accounted for her coming under the influence of the primary offender.^[10] Overall, in light of all these factors, Judge Sharp assessed the gravity of the offending as of medium or moderate seriousness.^[11]
• [12] The Judge then turned to the probable consequences of a conviction and noted these included the loss of a clean criminal record and the stigma of a conviction which could affect an individual’s wellbeing, along with the potential publicity which would follow conviction.^[12] He noted that in applying for insurance or loans, such convictions often must be disclosed and could make obtaining those types of services more difficult.^[13] He also noted that a conviction of this nature is a barrier to employment in a general sense. Ms Lilo had lost her job during the first COVID-19 lockdown period and although she was “able to provide good skills” to an employer, her job prospects would “suffer a serious setback if she were to be convicted”.^[14] Indeed he acknowledged that “for a young person, [conviction] can cast a long shadow over their future”, notwithstanding the presence of family support.^[15]
• [13] He then turned to whether the actual and potential consequences of conviction would wholly outweigh the gravity of offending in this case. He acknowledged the case was “difficult”, but came to the conclusion that this was not a case where that test was met.^[16] However, he did consider that a largely rehabilitative sentence was appropriate. He sentenced Ms Lilo to 12 months’ intensive supervision, including a requirement that she attend an assessment for a drug and alcohol programme and complete such counselling treatment or programme as was recommended, and a requirement she attend a psychological assessment and complete any treatment or counselling as recommended by that assessment. She was also sentenced to 100 hours’ community work.^[17]

Legal principles

Approach on appeal

• [14] If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge,^[18] or a miscarriage of justice will have occurred “for any reason”,^[19] and the appeal against conviction must be allowed.^[20]

Discharge without conviction

• [15] The court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.^[21] This Court has outlined the approach to determine an application for a discharge without a conviction:^[22]

  (a) consider all the aggravating and mitigating factors relevant to the offending and the offender;
  (b) identify the direct and indirect consequences of a conviction for the offender;
  (c) consider whether those consequences are out of all proportion to the gravity of the offence; and
  (d) consider whether the court should exercise its discretion to grant a discharge.

• [16] The phrase “out of all proportion” has been described as “an imprecise but exacting standard”,^[23] and in R v Smyth, it was explained that “[s]ignificantly more” was required than that the consequences of a conviction outweighed the gravity of the offending.^[24]

Appellant’s submissions

• [17] Mr de Groot, for Ms Lilo, submits the gravity of the offending was relatively low having regard to all mitigating factors, and the Judge was wrong to conclude that the mitigating factors only reduced the overall gravity to medium or moderate. In discussing the gravity of the offending, Mr de Groot emphasised Ms Lilo’s limited involvement in the arson itself, saying her real misconduct was driving Mr Fuasino to the site. He also said the Judge overstated the potential risk to firefighters and to the public.
• [18] In terms of mitigating factors, he particularly stressed Ms Lilo’s emerging mental health issues which likely impaired her judgement. She was a vulnerable person who became caught up, albeit in a limited way, with a single instance of offending committed by a serial arsonist.
• [19] Mr de Groot notes the class of offence for which a s 106 order can be granted is not closed. The discretion under s 106 is only fettered by the statutory criteria in s 107. In Moyes v Police, a discharge without conviction was granted, on appeal, in a case of arson.^[25] In that case the arson arose in the context of an acrimonious separation, where the appellant set fire to his wife’s clothing. The appellant paid $15,000 in reparation, expressed immediate shame for what he had done and there were real risks to his continued employment as an architect for Auckland International Airport Ltd because it could lead to revocation of Mr Moyes’ security clearance.
• [20] In Mr de Groot’s submission, Ms Lilo should likewise receive a discharge without conviction. The gravity of the offending is relatively low (and the Crown, at sentencing, conceded the gravity was low to moderate). The entry of a conviction and the associated stigma would have significant consequences for Ms Lilo’s future. Her ability to earn a living could be derailed and her mental health compromised if a conviction was entered.
• [21] For all these reasons, it was submitted that a discharge without conviction should have been granted.

Submissions for the respondent

• [22] Ms Pridgeon, for the respondent, submits that the District Court Judge was correct to categorise the offending as “moderately” serious overall, taking into account the relevant features of the offending and the appellant’s personal circumstances. The respondent notes the Court of Appeal’s observation in R v Gilchrist that arson “is always serious”,^[26] and says the Judge correctly identified the aggravating features of the offending. Indeed, in light of decided case law, the Judge’s starting point of two years’ imprisonment was generous, and could well have been higher.^[27]
• [23] The respondent submits that the Judge appropriately acknowledged and credited the appellant for her early guilty plea, lack of previous convictions, prior good character, strong whānau support, rehabilitative prospects and low risk of further offending. He also found the gravity of her offending was reduced by her relative youth, notwithstanding that she was 24 at the time of the offending.^[28]
• [24] The respondent also submits there is no clear causal nexus between the appellant’s mental health issues and her offending. In particular, there did not appear to be any evidence of major psychotic illness around the time of the offending, although this was difficult to rule out. However, on Ms Lilo’s own account, she was significantly intoxicated by cannabis use at the time of the offending but was not experiencing any psychotic symptoms.
• [25] The respondent submits that the Judge correctly identified and weighed the real and appreciable consequences of a conviction for the offending being:

  (a) the loss of a clean criminal record;
  (b) the likely stigma of a conviction, particularly where the media took an interest in the case;
  (c) the likely impact of a conviction on Ms Lilo’s mental wellbeing;
  (d) the fact that service providers such as insurers or loan providers routinely require disclosure of previous convictions and that can make obtaining these services more difficult; and
  (e) prejudice to the appellant’s future employment prospects, particularly noting the appellant was at the beginning of her employment career and was currently unemployed.

• [26] As the respondent notes, Ms Lilo does not appear to impugn the Judge’s assessment of the consequences of conviction, but rather, submits that the balancing exercise is tipped in favour of a discharge when the gravity of the offending is properly assessed.
• [27] In the respondent’s submission the consequences, when weighed against the seriousness of this offending, including the damage caused and Ms Lilo’s premeditated role in it, are not so disproportionate as to engage the threshold jurisdiction for a discharge without conviction to be considered.

Discussion

• [28] Judge Sharp categorised the offending as “moderately” serious overall taking into account the relevant features of the offending and Ms Lilo’s personal circumstances. We are satisfied the Judge considered all the relevant factors when determining the gravity of the offending. While he acknowledged the inherent seriousness of arson offending, he nevertheless looked at the specific circumstances of the case. We do not consider, as Mr de Groot suggests, that he misunderstood the extent of Ms Lilo’s role. The Judge had clearly read the summary of facts and relied on it in sentencing. He correctly identified that Ms Lilo’s co-offender used a tool to force open the electrical box to light the fire and referred to the summary of facts.
• [29] In our view, this was not an impulsive act, but one which Ms Lilo committed to and supported in advance. She also sent text messages to her co‑offender afterwards in which she took pleasure in their success, and the publicity it received. Perhaps the only matter on which we differ from the Judge is on his conclusion that there was a potential risk to members of the public and fire fighters. As we understand it, the fire was localised, the fire was readily extinguished and there was no such risk to those people in this case. However, this makes little material difference to the seriousness of the offending overall.
• [30] The Judge was also fully aware of Dr Lokesh’s report and the possibility that Ms Lilo’s judgement was impaired by mental health issues at the time of the offending.
• [31] That report noted Ms Lilo was significantly intoxicated with cannabis at the time of the offending and potentially had a substance induced psychotic disorder, which is currently in remission. She also had characteristics of bi-polar affective disorder and potentially emerging schizophrenic episodes. However, Dr Lokesh concluded there was no evidence of a major psychotic illness. Around the time of the offending there were some ongoing salient features which indicate Ms Lilo was suggestible and unable to appreciate the nature of the offending. However, the primary aim of the report appeared to be focused on avoiding a sentence of imprisonment. Dr Lokesh considered Ms Lilo would be better served by “[s]upervised treatment within the community” which could assist her to “integrate and become a fully functioned citizen”.
• [32] We are also satisfied that the Judge took into account all the personal mitigating factors including her guilty plea,^[29] her relative youth,^[30] her good character and prospects for rehabilitation,^[31] and her low offending risk.^[32]
• [33] Overall, we consider the Judge’s conclusion that this was a matter of “medium seriousness or moderate seriousness in terms of its overall effect”,^[33] was correct.
• [34] In assessing the consequences of the offending the appellant’s submissions did not identify any omission in the Judge’s consideration. The appellant’s submissions focused on the:

  (a) indirect consequence of prejudice to Ms Lilo’s future employment prospects; and
  (b) direct consequence of the entry of a conviction and the associated stigma.

• [35] The Judge took these into account and considered they were “of significance”.^[34] We accept that all convictions have some adverse impact on employment prospects but, as Duffy J said in Blay v Police, that is a consequence which fulfils the deterrence function of convictions.^[35] This Court in R v Taulapapa noted:^[36]

Conviction carries a social stigma which the law sustains by recording and publishing convictions. It may affect a person’s career, but that consequence must normally yield to the employer’s right to know.

• [36] In our view, the consequences of the offending are largely those that flow naturally from a conviction of this nature, and while they will be burdensome to Ms Lilo, do not reach the high threshold of being “out of all proportion to the gravity of the offence”.^[37] While we acknowledge Ms Lilo’s emerging mental health issues, and her difficulties with heavy cannabis use, Dr Lokesh saw these best addressed by a rehabilitative sentence and this was reflected in the sentence imposed by the Judge.
• [37] While conviction for arson is, on its face, an impediment to Ms Lilo’s employment prospects, the lenient sentence will signal to an employer the low level of offending. It is an impediment which will diminish over time, including as a consequence of the Criminal Records (Clean Slate) Act 2004 provisions if Ms Lilo remains offence free.
• [38] We accept the consequences of conviction are significant for Ms Lilo, but they are not so disproportionate to the gravity of the offending that a discharge without conviction should be granted.
• [39] Accordingly, the appeal is dismissed.

Result

• [40] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Solicitor, Manukau for Respondent

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^[1] R v Lilo [2021] NZDC 15926.

^[2] While the summary of facts refers to 15 cell phone towers being subject to arson attacks only 14 are referred to in that document and 14 charges were laid.

^[3] We were advised that this material was not referred to by Ms Lilo at the hearing and is not considered relevant to the appeal.

^[4] R v Lilo, above n 1, at [1].

^[5] At [10].

^[6] At [19].

^[7] At [15].

^[8] At [16].

^[9] At [17].

^[10] At [18].

^[11] At [19] and [21].

^[12] At [21].

^[13] At [22].

^[14] At [23].

^[15] At [24].

^[16] At [26].

^[17] At [27]–[28].

^[18] Criminal Procedure Act 2011, s 232(2)(b).

^[19] Section 232(2)(c).

^[20] Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

^[21] Sentencing Act 2002, s 107.

^[22] Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

^[23] Linterman v Police [2013] NZHC 891 at [17].

^[24] R v Smyth [2017] NZCA 530 at [12].

^[25] Moyes v Police [2018] NZHC 582.

^[26] R v Gilchrist CA429/90, 15 April 1991 at 3.

^[27] See R v Walker [2017] NZHC 2303; R v Price DC Christchurch CRI-2009-009-15884, 7 May 2010; and Stone v R [2016] NZHC 1289.

^[28] R v Lilo, above n 1, at [18].

^[29] R v Lilo, above n 1, at [4].

^[30] At [18].

^[31] At [17].

^[32] At [16].

^[33] At [19].

^[34] At [26].

^[35] Blay v Police [2014] NZHC 2923 at [49].

^[36] R v Taulapapa [2018] NZCA 414 at [42(a)] (footnote omitted).

^[37] Sentencing Act, s 107.