Inland Revenue Department v Faleolo [2017] NZDC 21545 (22 September 2017)

Last Updated: 28 March 2018

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-090-001203

[2017] NZDC 21545

INLAND REVENUE DEPARTMENT

Prosecutor v

MOSE FALEOLO Defendant

Hearing:	22 September 2017
Appearances:	K Chin for the Prosecutor A Low and T Kelly for the Defendant
Judgment:	22 September 2017

NOTES OF JUDGE G F ELLIS ON SENTENCING

[1] Mr Faleolo, you know what you have done; your family, your community know what you have done. It has been commented on by counsel and I do not need to go over all of that ground.

[2] I do not see this offending as if it were just one mistake committed once, because it is not that sort of activity. This is offending that took place over at least four years and was repeated over and over and over again. The prosecution tell me that there were a total of 335 separate false claims made and I do not accept that each one was an accident or a mistake.

[3] Each one was quite deliberate and I believe you knew just what you were doing and what the effects would be for the members of your church; and even if they did not know that when this started, pretty soon the refund cheques would have started

INLAND REVENUE DEPARTMENT v MOSE FALEOLO [2017] NZDC 21545 [22 September 2017]

coming in and many of those cheques must have been considerably greater than the contributions they had made in the first place. Therefore, not only you but the other members of the church who were benefiting from this must have known that this was wrong.

[4] Nevertheless, there it was, and I accept that the total amount that has been overpaid was not in the millions of dollars of overstated claims, but was more than

$600,000 of actual refunds. I accept that you received only a relatively small part of that: less than $10,000. It is not clear to me what you did with that and I accept that you are not in a position to pay any, or any significant, reparation yourself.

[5] I have accepted the submissions made by the prosecution and which are largely supported by the defence counsel as to the purposes and principles of sentencing and the relevant authorities that are referred to so I do not need to go through all of those.

[6] Earlier on in the memorandum filed on behalf of the Commissioner in June, counsel referred me to the Court of Appeal decision in R v Varjan1 and I accept that is a Court of Appeal case that is of particular relevance to me in this sentencing exercise and of course I defer to the guidance of the learned Judges of that Court. In that case the financial loss was more than half a million dollars so there were large sums of money involved. The sentencing Judge had started at four years which was within the range of my initial instinct; however, the Court of Appeal substituted a sentence of two years for each offence and gave leave to apply for home detention. It seemed to me that that was a very clear yardstick and that it would be wrong of me to ignore.

[7] The other cases that are referred to were of less assistance because significantly smaller sums were involved. I did notice, for instance, the case of Police v Toala2 which was a District Court sentencing in Wellington and that involved a sum of less than $42,000 but still resulted in a sentence of seven months’ home detention. That is where it becomes difficult to make the proportional assessment.

1 R v Varjan CA97/03, 26 June 2003

2 Police v Toala DC Wellington CRI-2011-085-005662, May 2 2012

[8] Nevertheless, both of counsel, that is for the prosecution and defence, have agreed that an appropriate starting point, having regard to the authoritative decisions of the higher courts, is in the range of two and a half to three years.

[9] I have taken account of what has been identified by the prosecution as the particular aggravating factors of this offending starting, as I have emphasised, with the very large sums involved; the breach of trust involved, because of the position of responsibility that you had; quite frankly, the breach of faith involved because it seems that you have led so many members of your own Christian church community to the commission of offences which they themselves may not have knowingly entered into. Then there is the element of premeditation, the period of time over which this offending took place. All are aggravating factors and I understand that those do justify a starting point in terms of a sentence of imprisonment.

[10] There is not a lot that can be said by way of mitigation. I do acknowledge what is said in the letters of reference for you. It is not surprising that members of your own family speak so eloquently of the good aspects of your character and how they have found this behaviour so out of character with the father and leader that they know and love. I respect those points of view. Clearly this offending does not define the man you are. And yet, your family and your church has to accept that you are the man who committed these offences and so they need to reconcile those aspects of your character that they know and perhaps weaknesses that they did not suspect.

[11] I have accepted the guidance that an appropriate starting point is not more than three years. That would be 36 months of imprisonment. I do accept that you are entitled to the maximum credit for the guilty pleas that you have entered, and that would be a quarter or 25 percent of that figure, a reduction of nine months. Even if I started with 36 months, that would bring you into the area of a 25-month sentence.

[12] It is entirely appropriate that you should be given some further discount on account of your state of health, your age, your previous good character, the expressions of remorse, which I accept are genuine even though they have followed your exposure and your shaming before your family and your church. You have nevertheless owned

up to your offending, you have expressed apology and I am sure that that has been required in your own community.

[13] I accept, as I said before, that you are never likely to be put in such a position again, either of temptation or of trust, and that therefore you do not pose a threat to the community. There has been no suggestion of anything other than dishonesty in your behaviour; there is no element of viciousness or of violence involved.

[14] Of course, I must take note the principles of sentencing that require, when there is a fine balance as I believe there is here, that I must impose the least restrictive sentence consistent with expressing denunciation on part of the community for your behaviour.

[15] So I allow a further discount of three months on account of those matters and that would bring me to a sentence of 22 months, if I were still considering imprisonment.

[16] Because I have reached that level and because of the guidance of the superior courts and, I acknowledge, because of the persuasive submissions that you own lawyer has very carefully developed, I do accept that a home detention sentence can meet the objects of sentencing.

[17] I do therefore impose on all of these charges a sentence of 11 months of home detention. That will be on the conditions which are set out in the pre-sentence report of 13 September.

[18] I should have acknowledged the report of the 13th. I have to say I was somewhat surprised that the recommendation of that report was for community detention, which would, in my view, have been a significantly less serious sentence and would in some degree have indicated that the Court did not take this offending as seriously as it should.

[19] You do not need to go to prison. The provision of a home detention sentence has been determined by the Parliament of our country as being the next nearest

sentence in order of seriousness to a sentence of imprisonment and, given all of the factors regarding your offending; your personal character, your age and state of health, I am satisfied that that is the most appropriate sentence. So I respect the advice offered by the Probation Service but home detention in my view is what is required. It is offered as a second option in the report and that is the sentence that I impose on the conditions and at the address specified in option 2 of that report.

[20] In the circumstances, Mr Chin, I believe no reparation order is either necessary or appropriate. I understand that those members of the church who have the ability to do so are making such reparations as they are able but of course they are not defendants in this prosecution and I accept that the defendant Faleolo has no ability to pay such sums himself.

G F Ellis

District Court Judge