Police v Malifa [2017] NZDC 15601 (11 May 2017)

Last Updated: 9 July 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR ANY OTHER IDENTIFYING PARTICULARS OF ALIASES USED BY THE DEFENDANT IS PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-004-013050

[2017] NZDC 15601

NEW ZEALAND POLICE

Prosecutor v

JEREMY ATA MALIFA Defendant

Hearing:	11 May 2017
Appearances:	J Sutton for the Prosecutor G Newell for the Defendant
Judgment:	11 May 2017

NOTES OF JUDGE H M TAUMAUNU ON SENTENCING

[1] Jeremy Malifa, you appear for sentencing having pleaded guilty on a sentencing indication given by me on your last appearance to 21 charges of accessing a computer for dishonest purpose between 4 August 2010 until 22 October 2016.

NEW ZEALAND POLICE v JEREMY ATA MALIFA [2017] NZDC 15601 [11 May 2017]

[2] These are the facts that form the basis for sentencing you today. On 17 March 2008 you signed a declaration stating that you have received a personal copy of the Code of Conduct issued by the New Zealand Police. You understand that it was your obligation to read and understand the Code of Conduct and you may be subject to the disciplinary procedures existing in the New Zealand Police for breaches of the Code.

[3] The New Zealand Police Code of Conduct states on page seven:

Employees do not access or use confidential, personal or sensitive information for personal purposes or advantage or divulge such information to another person outside of official duties or as otherwise required by law.

[4] On 20 March 2008 you became a sworn officer holding the powers of a constable in the New Zealand Police. On 4 June 2013 you were issued with an Apple iPhone phone by the New Zealand Police with a particular cellphone number.

[5] On 10 December 2015 you resigned from the New Zealand Police. The Police National Intelligence Application, the NIA system, is a computer database used by police to store details relating to persons, vehicles, locations, phone numbers and offences. Equip is an iPhone application gateway into NIA developed by the New Zealand Police and accessible only to police employees on their police issued iPhones. Equip enables staff to run queries on persons, vehicles, locations and conduct bail checks and traffic stops on their mobile devices. It is basically a light version of NIA.

[6] Accessing the NIA or Equip computer systems without a legitimate work reason or work-related reason is prohibited. When accessing either NIA or Equip staff are required to enter their individual user ID and password combinations to enter the system. Once their logon information is verified staff are able to carry out searches and queries of the databases.

[7] In respect of the first victim, who is named in the summary of facts, I do not intend to name the victims in the public Court today even though they are subject to suppression; I simply intend to outline the circumstances of the offending. The accused met this [details on how the defendant knew victim 1 deleted]. When I refer

to the accused it was Mr Malifa I am talking about. Mr Malifa had never had any dealings with that victim in his role as a police officer.

[8] On 17 July 2013 Mr Malifa, for no legitimate work related reason queried that particular victim in NIA to view her personal information. He again queried her in the database NIA system with no legitimate work related reason on 31 August 2013, 7 March 2014, 2 June 2015 and 11 August 2015. Mr Malifa received the benefit from querying that victim on multiple occasions, namely her current contact information and personal information in regards to any interactions with the police to get a better understanding of that victim to assist him with trying to encourage her into starting a relationship with him.

[9] In relation to the second victim outlined on page three of the summary of facts, Mr Malifa met that victim [details on how the defendant knew victim 2 deleted]. He had never had any dealings with that victim in his role as a police officer. On 4 August 2010 Mr Malifa for no legitimate work related reason queried that particular victim in the NIA system to view her personal information. He again queried her in NIA with no legitimate work related reason on 8 August 2010, 18 August 2010, 14 October 2010 and 19 February 2015, on that occasion using Equip.

[10] Mr Malifa received a benefit from querying that victim on multiple occasions, namely her current contact information and personal information in regards to any interactions with the police to get a better understanding of that victim, to assist him with trying to encourage her into starting a relationship with him.

[11] The next charge related to the victim named on page four of the summary of facts. On 29 November 2010 Mr Malifa attended an incident in his role as a police constable. One of the people involved in the incident was this particular victim. That victim gave Mr Malifa her contact details, including her mobile phone number. Shortly after this Mr Malifa began text messaging that victim, trying to initiate a relationship using the cellphone number she had given him.

[12] On 24 March 2011, four months after the initial incident Mr Malifa for no legitimate work related reason queried this particular victim in NIA to view her

personal information. He has again queried her in NIA with no legitimate work related reason on 25 August 2011, 16 July 2012, 28 December 2012, 14 May 2013, 7

September 2013 using Equip, 30 October 2013 using Equip, and 3 May 2014. Mr Malifa engaged in a sexual relationship with this victim until 2012. However, he continued to contact her until about July or August 2013.

[13] Mr Malifa received a benefit from querying this victim on multiple occasions. Namely her current contact information and personal information in regards to any interactions with the police to get a better understanding of this victim to assist him with trying to encourage her into starting and continuing a relationship with him.

[14] The next charge relates to the victim named on page five of the summary of facts. On 7 November 2011 Mr Malifa attended an incident in his role as a police constable with a colleague. One of the people involved in the incident was this victim. This particular victim gave Mr Malifa’s colleague her contact details, including her mobile phone number. Within a day or two Mr Malifa began sending this victim text messages trying to initiate a relationship using the cellphone number she had given to his colleague.

[15] On 15 December 2011, over a month after the incident and for no legitimate work related reason, Mr Malifa queries this victim in NIA to view her personal information. Mr Malifa again accessed this victim’s personal information in NIA without a legitimate work related reason on 25 May 2012, 18 August 2014 and 17 September 2014.

[16] Mr Malifa received a benefit from querying this victim on multiple occasions. Namely her current contact information and personal information in regards to any interactions with the police and to get a better understanding of this victim to assist him with trying to encourage her into starting a relationship with him.

[17] The next charge relates to the victim named on page six of the summary of facts. On 11 December 2011 Mr Malifa attended an incident in his role as a police constable. One of the people he spoke to in carrying out his duties was the victim in respect of this charge. The victim gave Mr Malifa her contact details, including her

mobile phone number. The next day Mr Malifa began text messaging this victim trying to initiate a relationship using the cellphone number she had given him for police use. Mr Malifa identified himself as [alias 1] to this victim. However, in August or September 2012 he introduced himself as [alias 2] to some of her friends.

[18] On 29 June 2013, 18 months after Mr Malifa attended at the incident where he met this victim and for no legitimate work related reason, Mr Malifa queried this victim in NIA to view her personal information. Mr Malifa again accessed this victim’s personal information in NIA without a legitimate work related reason on 2 August, 15, 16 and 18 August 2013, 1 and 2 September 2013, 8 October 2013, 9 December 2013, 21 April 2014, 14 October 2014, 1 May 2015 and 20 August 2015. On a number of those occasions he used Equip.

[19] Mr Malifa engaged in a sexual relationship with this victim and continued to contact her until about February or March 2016. Mr Malifa received a benefit from querying this victim on multiple occasions, namely her current contact information and personal information in regards to any interactions with the police to get a better understanding of this victim to assist him with trying to encourage her into starting and continuing a relationship with him.

[20] The next charge relates to the victim named on page seven of the summary of facts. In early February 2012 Mr Malifa attended an incident in his role as a police constable. One of the people he spoke to in carrying out his duties was this victim. The victim gave Mr Malifa her contact details, including her mobile phone number. The following day Mr Malifa began text messaging this victim, trying to initiate a relationship using the cellphone number she had given him for personal use. Mr Malifa met with this victim on a couple of occasions after this incident but the relationship never progressed.

[21] On 29 July 2012, five months after Mr Malifa’s attendance at the incident where he met this victim and for no legitimate work related reason Mr Malifa has queried this victim in NIA to view her personal information. Mr Malifa again accessed this victim’s personal information in NIA without a legitimate work related reason on 9 April 2013, 14 May, 17 June, 29 June, 7, 11 and 22 September and 8 October 2013,

8 March, 30 May, 19 July, 3 October and 25 December 2014, 15 April, 20 August 2015 and on a number of those occasions he used Equip to access the information.

[22] Mr Malifa received a benefit from querying the victim’s details on multiple occasions, namely her current contact information and personal information in regards to any interactions with the police to get a better understanding of that victim to assist him with trying to encourage her into starting a relationship with him.

[23] The next charge relates to the victim named on page nine of the summary of facts. On 28 July 2012 Mr Malifa attended an incident in his role as a police constable. One of the people he spoke to in carrying out his duties was this victim. The victim gave Mr Malifa her contact details, including her mobile phone number. The next day Mr Malifa sent this victim a text message trying to initiate a relationship using the cellphone number she had given him for police use. Mr Malifa identified himself as [alias 3] to this victim.

[24] On 3 October 2012, over two months after Mr Malifa’s attendance at the incident where he met this victim and for no legitimate work related reason, Mr Malifa has queried this victim in NIA to view her personal information. He has again accessed this victim’s personal information in NIA without a legitimate work related reason on 29 June and 16 September 2013, 7 April, 30 May and 26 December 2014 and again on 26 August 2015 on a number of occasions using Equip to access the information.

[25] Mr Malifa did engage in a sexual relationship with this victim on and off for about two and a half years. Mr Malifa continued to contact this victim until February 2016. Mr Malifa received a benefit from querying this victim’s information on multiple occasions, namely her current contact information and personal information in regards to any interactions with the police to get a better understanding of this victim to assist him with trying to encourage her into starting and continuing a relationship with him.

[26] The next charge relates to the victim named on page 10 of the summary. On 27 October 2012 Mr Malifa attended an incident in his role as a police constable. One

of the people he spoke to in relation to the incident was this victim. This victim gave Mr Malifa her contact details, including her mobile phone number. Late that day Mr Malifa sent this victim a text message trying to initiate a relationship using the cellphone number she had given him for official police use. Mr Malifa identified himself as [alias 3] to this victim.

[27] On 4 March 2013, over four months after the attendance by Mr Malifa at the incident where he met this victim and for no legitimate work related reason Mr Malifa has queried this victim in NIA to view her personal information. He has again accessed her personal information in NIA without a legitimate work related reason on 3 August 2013, 18 July and 22 December 2014 and 1 March 2015. Mr Malifa did engage in a sexual relationship with this victim, which ended in early 2014. Mr Malifa continued to contact this victim until early 2016.

[28] Mr Malifa received a benefit from querying this victim on multiple occasions, namely her current contact information and personal information in regards to any interactions with the police and to get a better understanding of this victim to assist him with trying to encourage her into starting and continuing a relationship with him.

[29] The next charge relates to the victim on page 11 of the summary. On 19 November 2012 Mr Malifa attended an incident in his role as a police constable. One of the people he spoke to in carrying out his duties was this victim who gave Mr Malifa her contact details including her mobile phone number. Shortly after the incident Mr Malifa sent the victim in respect of this charge a text message trying to initiate a relationship using the cellphone number she had given him for police use. Mr Malifa identified himself as [alias 3] to this victim. Mr Malifa did engage in a sexual relationship with this victim which ended shortly after it began.

[30] On 28 December 2012, over a month after the incident and for no legitimate work related reason, Mr Malifa queried this victim in NIA to view her personal information and again accessed her personal information in NIA without a legitimate work related reason, on 4 March, 19 April, 29 June, 24 October 2013, 25 January and 26 December 2014, on one occasion using Equip. Mr Malifa received a benefit from querying this victim’s details in the same way as the other victims.

[31] The next charge relates to the victim named on page 12 of the summary. On 10 May 2013 while carrying out his duties as a police officer Mr Malifa stopped a vehicle in Auckland City. The driver of the vehicle was the victim in respect of this charge. That victim gave Mr Malifa her contact details, including her mobile phone number. Later that day Mr Malifa began sending text messages to this victim, trying to initiate a relationship with her using the cellphone number she had given him for police use. Mr Malifa identified himself as [alias 3] to this victim.

[32] On 16 August 2013, three months after the incident and for no legitimate work related reason, Mr Malifa queried this victim in NIA to view her personal information. He again queried this victim in NIA without a legitimate work related reason on 18 August, 2 September, 22 September and 10 December 2013 and on 17 February, 19 July, 27 October and 16 November 2014 on multiple occasions using Equip.

[33] Mr Malifa received a benefit from querying this victim’s information on multiple occasions in the same way as the other victims in this case. Mr Malifa engaged in a sexual relationship with this victim, which ended in October 2014, and he continued to contact this victim up until January 2016.

[34] The next charge relates to the victim named on page 14 of the summary of facts. Mr Malifa met this victim in a bar in Auckland City. He had had no interactions with this victim in his capacity as a police officer. On 26 January 2014 Mr Malifa queried this victim on the Equip database using his police issued iPhone with no legitimate work related reason. He again queried this victim in NIA without a legitimate work related reason on 26 December 2014. Mr Malifa identified himself as [alias 4] to this victim and at one stage also told her that his name was [alias 5]. Mr Malifa received a benefit from querying this victim’s details in both the Equip and NIA system on the same basis as the other victims.

[35] Mr Malifa engaged in a sexual relationship with this victim that continued until mid-2015 and he continued to have contact with this victim until February or March 2016.

[36] The next charge relates to the victim named on page 15 of the summary. On 3 January 2014 Mr Malifa attended an incident in his role as a police constable. One of the people he spoke to in carrying out his duties was the victim of this charge. This victim gave Mr Malifa her contact details, including her mobile phone number. Shortly after the incident Mr Malifa sent a text message to the victim trying to initiate a relationship. He identified himself as [alias 5] to the victim. The victim did not engage in a relationship with Mr Malifa. She found some of his text messages inappropriate and refused to respond.

[37] On 21 April 2014, three months after the incident and for no legitimate work related reason, Mr Malifa queried this victim in NIA to view her personal information. He again accessed her personal information in NIA on 18 July and 26 December 2014. He received a benefit from querying her information in the same way as he did for the other victims.

[38] The next charge relates to the victim named on page 16 of the summary. From [dates deleted] 2014 Mr Malifa attended a training course at the [location of training course deleted]. For no legitimate work related reason on 20 March 2014 Mr Malifa queried the victim using the Equip database on his police issued iPhone to view her personal information.

[39] Mr Malifa received a benefit from querying this victim’s details and to be clear in the summary it does record details that would tend to identify this particular victim, and I have suppressed the details permanently in the name of this victim, and I refrain from recording or citing some of the summary of facts that would relate to those details.

[40] At 4.14 pm on 16 November 2015 Mr Malifa began text messaging this particular victim, attempting to initiate a relationship. The victim did not engage in a relationship with Mr Malifa and cannot even remember meeting him.

[41] The next charge relates to the victim named at the bottom of page 16 of the summary of facts. At 8.20 am on 3 May 2014 Mr Malifa carried out a NIA search of a vehicle. The vehicle was registered to the victim and Mr Malifa had no legitimate

work related reason to query this particular vehicle that belonged to the victim. On viewing the information about the vehicle Mr Malifa then accessed and viewed personal and private information about the victim. At that time the NIA database noted the victim’s home address but not her cellphone number.

[42] From the information that he viewed in NIA on 3 May 2014 Mr Malifa went to the victim’s home address and spoke to her. He advised the victim that he was investigating a serious incident. The victim gave Mr Malifa her contact details, including her cellphone number. About half an hour later Mr Malifa began text messaging the victim trying to initiate a relationship using the cellphone number she had given him. The victim did not engage in a relationship with Mr Malifa. They met briefly in person on a couple of occasions, but the relationship never progressed.

[43] Mr Malifa again accessed this victim’s personal information in NIA with no legitimate work related reason on 26 July, 26 August 2014 and 28 October 2015 on two occasions using Equip. Mr Malifa received the benefit from querying this victim’s details on multiple occasions in the same manner that he did with the other victims.

[44] The next charge relates to the victim named on page 18 of the summary of facts. In 2014 Mr Malifa met this victim while she was out with friends in Auckland City. One of this victim’s friends gave Mr Malifa the victim’s cellphone number on 20 July 2014 Mr Malifa sent this victim a text message using the police email system. On 3 October 2014 Mr Malifa with no legitimate work related reason queried the victim’s cellphone number in NIA. The cellphone number was linked in NIA to the victim and Mr Malifa then queried the victim and viewed her personal information.

[45] Mr Malifa received a benefit from querying this victim’s personal information in the same way as the other victims involved. This victim did not respond to Mr Malifa’s phone call or text message and did not engage in a relationship with Mr Malifa.

[46] The next charge relates to the victim named on the summary of facts at page 19. On 6 January 2015 while carrying out his duties as a police officer Mr Malifa stopped a vehicle in Auckland City. The driver of the vehicle was the victim in respect to this

charge. This victim gave Mr Malifa her contact details, including her mobile phone number. Not long after this incident Mr Malifa began sending text messages to the victim trying to initiate a relationship with her.

[47] On 14 September 2014, eight months after the incident and for no legitimate work related reason, Mr Malifa queried this victim in NIA to view her personal information and he received a benefit similar to the other victims in terms of accessing her personal information. The victim in respect to this charge did not engage in a relationship with Mr Malifa. She initially responded to his text messages because she did not want to get offside with a police officer.

[48] The next charge relates to the victim named in the summary of facts at the bottom of page 19. On 10 January 2015 for no legitimate work related reason Mr Malifa queried the victim in NIA to view her personal information. He then visited this victim at her home address where he identified himself as [alias 3] to this victim. The victim gave Mr Malifa her contact details including her mobile phone number.

[49] Shortly after going to her home address Mr Malifa began sending this victim text messages trying to initiate a relationship. Mr Malifa accessed her personal information in NIA on 30 January, 2 March, 2 April, 11 April, 15 April, 10 July and 17 August 2015 on multiple occasions using Equip. Mr Malifa engaged in a sexual relationship with this victim that continued until December 2015 and Mr Malifa received a benefit from querying this victim’s personal information in the same manner as for the other victims.

[50] The next charge relates to the victim named at the bottom of page 20 of the summary. At 9.43 am on 23 April 2015 Mr Malifa accessed the Equip database on his police issue iPhone and carried out a search of a vehicle. The vehicle is registered to the victim. Mr Malifa had no legitimate work related reason to query this vehicle. On viewing the information about the vehicle Mr Malifa then accessed and viewed information about the registered owner, namely the victim. Information held in the Equip database on the victim included her mobile phone number.

[51] In early to mid-2015 Mr Malifa began sending text messages to this victim trying to initiate a relationship. He identified himself as [alias 5] to this victim. The victim did not engage in a relationship with Mr Malifa and has never met him in person. Mr Malifa also queried this victim’s details on 24 March, 5 May and 1 September 2015 and received a benefit from doing so in the same manner as the other victims.

[52] The next charge relates to the victim named at the top of page 22 of the summary of facts. At 6.32 am on 15 October 2015 Mr Malifa accessed the Equip database on his police issue iPhone and carried out a search of a vehicle. On accessing the information on the vehicle Mr Malifa was able to view information on the registered owner, the victim in respect of this charge. Mr Malifa then carried out an Equip search on the victim followed by an Equip search on her home address. Having viewed information on her home address Mr Malifa was able to access information in fact on the sister of the victim. Information held in the Equip database on the victim, who is the subject of the charge, included her mobile phone number.

[53] At 6.37 am Mr Malifa sent a text message to the victim on the phone number she had previously provided to police for official purposes stating, “Hi how are you?” A text conversation ensued where it was soon clear that Mr Malifa was attempting to initiate a relationship with this victim and that the victim did not know and had never met Mr Malifa. Mr Malifa identified himself as [alias 3] to this victim. This victim did not engage in a relationship with Mr Malifa and has never met him in person. And Mr Malifa received a similar benefit from accessing the personal information as he did in respect of the other victims.

[54] The next charge relates to the victim named on page 23 of the summary of facts. At 11.14 pm on 22 October 2015 Mr Malifa accessed the Equip database on his police issue iPhone and carried out a search of the victim’s name with no legitimate work related reason. He again queried this victim at 11.17 pm viewing the victim’s personal information, including her cellphone number.

[55] At 11.19 pm on 22 October 2015 Mr Malifa sent a text message to the victim on the phone number she had provided to police for official purposes, stating, “I

thought you were amazing tonight.” Mr Malifa continued to send text messages to this victim over a three week period trying to initiate a relationship. Mr Malifa identified himself as [alias 3] to this victim. This victim did not engage in a relationship with Mr Malifa and has never met him in person. Mr Malifa received a similar benefit in terms of accessing the personal information as he did for the other victims.

[56] The next charge relates to the victim named on page 24 of the summary of facts. On [date deleted] 2015 Mr Malifa attended a training course [details of training course deleted], Wellington. At 8.51 pm Mr Malifa accessed the Equip database on his police issue iPhone and carried out a search of a vehicle. Mr Malifa had no legitimate work related reason to be carrying out a search on this vehicle and the vehicle was registered to a named person. Mr Malifa then carried out an Equip search on the owner of the vehicle and viewed the owner’s home address. Mr Malifa then carried out a search on the home address and viewed information on the owner’s daughter, the victim in this case. Information held in the Equip database on the daughter included her mobile phone number.

[57] At 8.53 pm Mr Malifa sent this victim a text message on the phone number she had provided to police for official purposes, stating, “Hey how are you?” A text conversation ensued where it was soon clear that Mr Malifa was attempting to initiate a relationship with this victim and that the victim did not know Mr Malifa. Mr Malifa identified himself as [alias 3] to this victim. She did not engage in a relationship with Mr Malifa and has never met him in person. Mr Malifa received a similar benefit from making the enquiries that he did.

[58] In explanation Mr Malifa stated that he had text messaging addiction and that he had accessed the police computer system in order to obtain the contact details of women he thought would be receptive to his advances, or that he thought were good-looking. Prior to appearing in Court today Mr Malifa has not previously appeared.

[59] Now it is clear from the summary of facts, Mr Malifa, that you fully intended to initiate a sexual relationship with all 21 victims whose details were accessed by

your dishonest use of the Police National Intelligence computer database. Of those 21 victims you successfully initiated and engaged in a sexual relationship with eight of those victims. If you did not have access to the police database you would have been unable to initiate contact with any of them, and that is abundantly clear from the way that the summary reads.

[60] In sentencing you today it is important to impose a sentence that holds you accountable and responsible for your offending. It is also important to impose a sentence that serves the purpose of deterring you personally from this type of behaviour in the future, but also it is important that the sentence sends a message to other police officers who have access to this database that there is a general message of deterrence that is served by the sentence today.

[61] It is important to denounce your conduct as unacceptable. Also where possible it is important to provide for your rehabilitation and reintegration into society and the Court is bound to impose the least restrictive outcome that is appropriate in the circumstances.

[62] In terms of the aggravating factors that apply to your offending, this is clearly sustained repetitive offending that you have committed between August 2010 until October 2016 and it involves a gross breach of trust. Police officers are provided access to the database for legitimate purposes only and your actions have no doubt had a significant adverse effect on the reputation of the police force in New Zealand. Understandably it is now going to be more difficult for females to provide personal information to police officers and be confident that the police can be trusted to protect that information and use it only for proper and authorised purposes.

[63] You have created multiple victims by the fact that you have offended in this manner. These victims included both personal and professional acquaintances, witnesses, victims and other people at crime scenes and none of them consented to your unauthorised access into the database to obtain their personal information. You have caused significant emotional harm to many of these victims, but particularly those eight women who you engaged in a sexual relationship with, as a result of accessing this information unlawfully.

[64] Each victim has described their own personal circumstances in the comprehensive victim impact statements that have been provided to the Court. There is a constant thread that runs through all of those statements. They have all been totally deceived by your actions and you have constantly lied to them. You have used fictitious names and it is appropriate to describe your behaviour as predatory, calculating, manipulative and for some of these victims scary, disturbing behaviour that was abusive and totally unacceptable.

[65] There is also a constant theme that these victims were shocked when they learned the truth about your identity and the fact that you had been accessing their details unlawfully.

[66] There are no mitigating factors that relate to your offending.

[67] As far as the relevant guideline judgments and other comparative cases are concerned, in R v Sarah1 2013 NZHC 959 and Pakau v R2 the Court of Appeal did not disturb starting point sentences of three and a half years’ imprisonment and in the High Court that starting point was also adopted.

[68] In the R v Sarah case the defendant was a police prosecutor who accessed the police database to facilitate Class A methamphetamine dealing and in the Pakau v R case the defendant was a serving police officer who accessed the police database for a similar purpose, namely to assist or facilitate the dealing of Class A methamphetamine. Both of those cases involved offending that was designed to defeat or obstruct the course of justice and Class A methamphetamine dealing is a very serious offence with a maximum penalty of life imprisonment.

[69] As outlined in my sentencing indication decision given on 8 May this year and those reasons are to be read in conjunction with these reasons I give at sentencing today, although I have no intention of trivialising or minimising your conduct in this case I consider that the Pakau v R and R v Sarah cases involved offending that was

1 R v Sarah [2013] NZHC 959

2 Pakau v R [2016] NZCA 177

more serious than the offending you have committed in this case, because of the nature and quality of the material involved in the Pakau v R and R v Sarah cases.

[70] The starting point I reached in giving the sentencing indication for you was two years eight months’ imprisonment. In my assessment a starting point sentence of two years eight months’ imprisonment adequately reflected your culpability when evaluating the nature and scope of your offending, the principles and purposes of sentencing that are applicable to your case, the aggravating and mitigating factors that are relevant to your offending, which I have outlined and having regard to those relevant guideline judgments.

[71] As far as personal aggravating factors are concerned, there is no uplift for personal aggravating factors. You have no previous convictions and no other matters are relevant in terms of an uplift.

[72] As far as personal mitigating factors are concerned, it is accepted that you are remorseful for your offending, and you have suffered significant consequences as a result of this offending coming to light. First of all you have resigned from the police force and that was at the end of 2015. You have separated from your wife as a result of this offending. You now live apart and your wife has the day-to-day care of your three young children, who you see daily after work and have care of two of the older children at weekends. You have been prescribed medication for [medical details deleted] and there is also material contained in the pre-sentence report that outlines the psychological issues that apply in your case.

[73] You started seeing a counsellor after you were charged with these offences for sexual preoccupation and you saw that counsellor on a fortnightly basis.

[74] In explanation for your behaviour and with the aid of counselling you came to realise you have had low self-esteem which stemmed back to your father leaving, never to be seen again, at the age of two. I am simply quoting here from the pre-sentence report. As a way to cope with life stresses and to build confidence you sought gratification via liaison with other women. You said there were periods of control around the addiction compulsion when you would battle yourself not to behave

in that manner. You stated you are more in control of your behaviour now, your mother is aware of your situation and she helps towards funding the counselling session, and you have one sibling, a sister, who lives [details deleted] who is also aware and supportive of you.

[75] You told the probation officer that you . [details deleted], which has helped you a lot.

[76] You told the probation officer that you tried marriage counselling for adultery before you used the police database. You said you used to cheat on your wife by texting ex-girlfriends or someone you knew. You said you then started obtaining numbers from women you met while out having a drink. You acknowledged your behaviour became more risky when you pursued contacting strangers via the police database.

[77] Now, Mr Malifa, it’s been necessary for me to spell out in detail the psychological issues that are involved in your case so that the decision I reach is understandable in the circumstances. And I do not shy away from that.

[78] So in my assessment you have experienced significant consequences as a result of your offending already, but that is not to try and minimise or trivialise the effect that your offending has had on the victims. However, the Court must take these matters into account and in my view the appropriate discount from the starting point is four months’ imprisonment to recognise the personal mitigating factors that I have just outlined.

[79] You are also entitled to credit for the guilty plea that you entered. In my assessment the appropriate discount for guilty plea is 25 percent to recognise the fact that the guilty plea was entered immediately after the acceptance by you of the sentencing indication I gave you last time.

[80] So in summary, the starting point that I adopted was two years eight months’ imprisonment, less the discount of four months for remorse and personal factors,

which equates to 28 months. Less a 25 percent discount for guilty plea. And that brings the provisional term of imprisonment down to 21 months.

[81] It is important to note, particularly for the purposes of deterrence for other police officers who may be interested in this decision, that the starting point is in fact two years eight months’ imprisonment and that is what a police officer can expect in this type of circumstance for unlawful, unjustified and illegitimate access to the NIA database.

[82] Now the provision term of 21 months’ imprisonment falls within the threshold for consideration of home detention, or any other alternative community-based sentence that constitutes the least restrictive outcome appropriate in the circumstances.

[83] The original sentencing indication I gave was home detention or some other community-based sentence that constituted the least restrictive outcome appropriate in the circumstances and I did indicate last time that 12 months’ home detention was the likely outcome, unless there were matters outlined in the pre-sentence report that would make such an outcome inappropriate and a lesser restrictive sentence more appropriate.

[84] In the pre-sentence report Mr Malifa is assessed as posing a low risk of re-offending and this is obviously because he is no longer a serving police officer. Mr Malifa no longer has access to the database and his risk of harm is assessed as medium, given the likely impact his offending has had on his unsuspecting victims.

[85] The pre-sentence report also notes that although Mr Malifa is eligible for a sentence of home detention the probation officer recommends a sentence of the maximum hours available of community work, combined with community detention in conjunction with a sentence of supervision to ensure that Mr Malifa continues with counselling. The probation officer noted that such a sentence will accommodate Mr Malifa’s current employment and parental responsibilities.

[86] I have to say it is a marginal decision whether or not to follow that recommendation and it does require balancing of all of the interests that are involved

and that must be respected in sentencing Mr Malifa today. However, by a fine margin, I agree with the recommendation of the probation officer that a sentence combination that is less restrictive than home detention would be appropriate in the circumstances, will allow employment and parental responsibilities to continue, but at the same time the relevant sentencing purposes and principles can still be satisfied depending on, of course, the length of term that is imposed.

[87] I consider that 400 hours community work combined with six months’ community detention, 12 months supervision and also an emotional harm reparation payment for each of the 21 victims will adequately hold you, Mr Malifa, accountable and responsible for your offending. Such a sentence will satisfy the purposes of deterrence and denunciation and it does amount to the least restrictive outcome appropriate in the circumstances. And also such a sentence will provide for your rehabilitation and reintegration into the community.

[88] You will be required to pay back the community, Mr Malifa, for what you have done here, but that can be done without requiring you to serve a full-time sentence of home detention and on that basis, can I ask you to stand now please.

[89] Mr Malifa, on all 21 charges you are now convicted. You are sentenced to 400 hours community work, 12 months’ supervision on the conditions set out in the pre-sentence report and six months’ community detention, also on the conditions set out in the pre-sentence report. You are to pay an emotional harm reparation in the amount of $200 to each of the 21 victims. I do not intend to distinguish or differentiate between any of the victims. I simply consider it appropriate that for each and every one of those victims whose personal information you accessed there is a meaningful gesture on your part to hold you accountable and responsible for each of them.

[90] So $200 per victim payable at $20 per week. I appreciate that your financial circumstances are limited, however, it is important that each of these victims at least receive that amount from you over time. The first payment for that reparation order to be paid by you will need to be made within seven working days.

[91] Mr Malifa, that is all that is required today. I do not believe there are any other orders.

ADDENDUM:

[92] Just to be clear, and I will spell out what this suppression order now will include. There is a permanent order for suppression of name and identifying details in respect of all victims. And also throughout the course of my reading the summary of facts I have referred variously to [names of aliases deleted]. I will need to suppress all of those references to those names, because it appears that in fact there is a possibility that another person carries the name [alias 3], who is connected to this case and who seeks suppression for the same reasons as the victims.

[93] The start date for the community detention order is 14 July. The curfew address is your address in [address deleted] and the curfew period is between 7.30 pm at night until 7.00 am in the morning on a daily basis.

[94] So, Mr Malifa, that is all that is required today, you may stand down, thank you.

H M Taumaunu District Court Judge