Vea v R [2014] NZHC 1959 (18 August 2014)

Last Updated: 28 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-190 [2014] NZHC 1959

BETWEEN	SEINI MOHEKIVOHA VEA Appellant
AND	THE QUEEN Respondent

Hearing:	18 August 2014
Counsel:	H Kim for Appellant T Hu for Respondent
Judgment:	18 August 2014

_{ORAL JUDGMENT OF KATZ J}

Solicitors: Meredith Connell, Auckland

_{Counsel: H Kim, Barrister, Auckland}

VEA v THE QUEEN [2014] NZHC 1959 [18 August 2014]

Introduction

[1] In late 2011, Tongan members of the Church of the Latter-Day Saints began planning for a school reunion to be held in Tonga in July 2012. A fundraising committee was formed to raise money towards the airfares of those attending. Ms Vea was appointed the president of that committee.

[2] Ms Vea subsequently told the committee that she had booked a charter flight for the trip. That was not true. A total of 132 seats on the flight were, however, sold to people who were hoping to attend the reunion, at a cost of $29,200. On 28 June

2012, the day before the planned flight was due to depart, Ms Vea called an emergency meeting, which was attended by a large proportion of the family representatives who had purchased tickets. At that meeting, Ms Vea claimed that she had been informed by the pilot that an extra $100,000 was required for the trip to go ahead. Attendees were also informed that full refunds would be provided if requested. There is no evidence, however, that any refunds were ever made.

[3] Ms Vea pleaded guilty in the District Court to 30 charges of causing loss by deception.¹ Judge AJ Johns sentenced Ms Vea to six months home detention and ordered that she pay reparation in the sum of $27,450, by way of weekly instalments.² Ms Vea now appeals her sentence. She says it was manifestly excessive and unjust in all the circumstances.

Approach to appeal

[4] The Summary Proceedings Act 1957 applies in this case as the charge was laid before the commencement of the date of the Criminal Procedure Act 2011.

[5] An appeal against a sentence is a general appeal which will be by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or

_{inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating}

¹ An offence under s 240 of the Crimes Act 1961 which carries a maximum penalty of seven

_{years’ imprisonment.}

2. This appears to have been the sum of $29,200 paid by the victims, less an amount successfully recovered by one victim who pursued a claim in the Disputes Tribunal.

to the offence or the offender’s character or personal history were not before the

Court imposing sentence”.

[6] The approach to be taken to appeals under s 121(3) was set out in Yorston v

Police³ where the Court said:

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle.”

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[7] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached. I will therefore undertake the sentencing exercise afresh and compare the result with the sentence imposed by the Judge, to determine whether the sentence imposed was within the range that can properly be justified by accepted sentencing principles. First, however, I will consider the issue of reparation, as any adjustment to the amount of reparation Ms Vea is required to pay could impact on other aspects of her sentence.

Was the quantum of the reparation order excessive?

[8] The Judge ordered that Ms Vea pay reparation in the sum of $27,450, by way of weekly instalments. Ms Vea had indicated at sentencing that she could pay reparation in the sum of $50 per week. At that rate Ms Vea will have to continue

_{paying reparation for approximately 11 years.}

³ Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13].

[9] The respondent responsibly conceded that it may be necessary to modify the reparation order in light of Ms Vea’s financial circumstances. The respondent submitted, however, that the “trade off” for any reduction in the reparation order should be an increase in the period of home detention, given that the Judge applied a discount to reflect that Ms Vea was ordered to pay full reparation.

[10] The Court of Appeal in R v Bailey held that any amount of reparation ordered should be realistic, given the financial circumstances of the person subject to the order.⁴ In that case, the appellant used a document with intent to defraud and was ordered to pay reparation of $17,840 at a rate of $20 a week, plus community work. That order would have taken 17 years before full repayment was made. It was considered by the Court of Appeal to be unrealistic. Reparation of $3,000 at $20 per week was substituted.

[11] Ms Vea cited Leighton v Police,⁵ a successful appeal against a reparation order of $40,700. On appeal, Mallon J considered that, given the appellant’s financial position and his other debts, the reparation order was manifestly excessive. The Judge said:⁶

If an offender has insufficient means to pay the total loss the Court may order reparation for a lesser amount and that it be paid in instalments. It is well established that the amount to be repaid should be realistic given the financial resources of the offender and that it should not involve bonding the offender for very long periods.

[12] At the time the appellant was paying $15 a week in reparation, which would mean full repayment would take 52 years. The Judge considered that a five year period over which the reparation should be paid was appropriate. The reparation order was quashed and replaced with an order of $10,500, to be paid in weekly instalments.⁷

[13] Given the authorities, I consider that the reparation order of $27,450 was

excessive in light of Ms Vea’s financial circumstances. The current order, as I have previously noted, will bind Ms Vea for approximately 11 years, which I consider to

⁴ _{R v Bailey CA306/03, 10 May 2004 at [25].}

⁵ _{Leighton v Police [2012] NZHC 1925.}

⁶ _{At [7] (footnotes omitted).}

⁷ At [11]-[12].

be too long. In line with Leighton v Police, I consider a five year period to be appropriate, which reduces the reparation order by about half to $13,000.

What is an appropriate starting point?

[14] Having determined that the quantum of reparation should be significantly reduced, I now turn to consider what an appropriate sentencing starting point should be.

[15] There is no guideline judgment for dishonesty offending. The Court of Appeal decision in R v Varjan⁸ identified several factors to guide the Court in assessing the culpability of an offender. The Court said:

[21] ... The circumstances of, and culpability in, offences of dishonesty vary widely. They must be assessed in light of the guidance to be found in previous decisions. ...

[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims.

...

[25] The authorities clearly indicate that in cases of major defalcations, misappropriations, schemes dishonestly to obtain money or property or where recidivism indicates the need to protect the community, imprisonment is appropriate.

[16] I will consider the various relevant considerations identified by R v Varjan in order to assess Ms Vea’s overall level of culpability. Although the amount of loss is an important consideration in dishonesty offending, it is not determinative of the seriousness of the offence.⁹

Nature of the offending and period of offending

[17] The respondent accepted that the offending in this case was not particularly sophisticated. However, I accept the respondent’s argument that Ms Vea did not

⁸ _{R v Varjan CA97/03, 26 June 2003 at [22].}

⁹ See Coles v Police [2001] 2 NZLR 139 (HC) at [12].

need to resort to complicated methods of deception because of the trust that the victims bestowed upon her. I also accept that there was a degree of premeditation involved.

[18] The offending appears to have spanned a period of six or seven months. Further, there appears to have been an escalation during this period of the amount of money that was requested of the victims.

Number of victims and amount of loss

[19] All 30 victims were Tongan members of Ms Vea’s church. The amount misappropriated was the amount paid for the 132 seats, a total of $29,200.

Motivation for the offending

[20] Ms Vea was motivated by financial gain. Ms Vea and her husband are welfare beneficiaries and the money she obtained by deception from the victims appears to have been used to support her large family. The attempt to solicit a further $100,000 from the victims is of concern, however, as it is a sum that presumably exceeded her family’s immediate financial needs.

Abuse of position of trust

[21] Ms Vea’s offending was a gross breach of trust. Ms Vea’s fellow church members must have held her in high regard to appoint her as the president of the fundraising committee. The church community may very well trust each other more readily than someone from outside that community. Therefore, Ms Vea exploited the goodwill of the victims.

Impact on victims

[22] I accept the respondent’s submission that it is likely that the offending had repercussions on the fabric of the church community, in addition to the direct financial losses to each of the victims.

Setting the starting point

[23] Taking all of these factors into account, what is the appropriate starting point for sentencing? The Judge applied a starting point of 11 to12 months’ home detention. Applying the usual approach to sentences of home detention, this would equate to a starting point equivalent to 22 to 24 months imprisonment.

[24] I have considered a number of cases which are arguably comparable in some respects to Ms Vea’s offending. These included Rochford v Police,¹⁰ Hirst v Police,¹¹ Palmer v Police,¹² Terrell v Police,¹³ Frost v Ministry of Social Development,¹⁴ R v Townhill,¹⁵ Ransom v R,¹⁶ Silcock v Police,¹⁷ Police v Teller¹⁸ and Police v Rogers.¹⁹

[25] This type of offending is often highly fact specific and each case must be assessed on its own merits. I note that in Rochford and Hirst, however, sentences of imprisonment were imposed and leave to apply for home detention was not initially granted (although leave was granted on appeal in Rochford). A sentence of imprisonment was also imposed in Silcock. Sentences of home detention were imposed in Teller and Rogers. Both of those cases included mitigating features, however, that were more significant than those present in this case.

[26] As I have noted, Ms Vea’s offending involved a gross breach of trust over a period of a number of months. A significant number of victims were involved, who tended to be vulnerable and trusting, given their relationship with Ms Vea through the church. They have no doubt been caused considerable stress and anguish by Ms Vea’s offending. They have lost money they could ill afford to lose. Many of

_{them no doubt have families of their own. There was a clear element of planning}

¹⁰ _{Rochford v Police HC Christchurch CRI-2007-409-5, 16 February 2007.}

¹¹ _{Hirst v Police HC Hamilton CRI-2004-419-103, 29 October 2004.}

¹² _{Palmer v Police HC Rotorua CRI-2009-463-82, 4 November 2009.}

¹³ _{Terrell v Police [2013] NZHC 734.}

¹⁴ _{Frost v Ministry of Social Development [2013] NZHC 1239.}

¹⁵ _{R v Townhill CA392/00, 7 December 2000.}

¹⁶ _{Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.}

¹⁷ _{Silcock v Police [2014] NZHC 1515.}

¹⁸ _{Police v Teller DC Auckland CRI-2008-004-014259, 2 February 2009.}

¹⁹ Police v Rogers DC Invercargill CRI-2009-025-001449, 28 April 2009.

and premeditation, although the overall scheme of deception was not particularly sophisticated.

[27] Taking into account this factual background, and in light of the authorities I have outlined, I consider that a starting point in the region of 18 months’ imprisonment would appropriately reflect Ms Vea’s culpability.

Adjusting the starting point

[28] Judge Johns gave a discount for previous good character and the payment of reparation, although the exact percentage is not clear from the sentencing notes. In my view a discount of about 15 per cent would be appropriate to reflect these mitigating factors, taking into account that the reparation order amounts to about half of the sums obtained by deception. This brings the starting point down to

15.3 months’ imprisonment.

[29] I do not consider an additional discount for remorse to be appropriate. In the pre-sentence report, the writer noted that whilst Ms Vea regrets the financial losses suffered by her church members, she continues to deny deception and claimed that all the money was given in good faith, to a Mr McGregor from Air New Zealand. Air New Zealand has confirmed that they have no record of a Mr McGregor, nor was a flight chartered by Ms Vea.

[30] Judge Johns awarded the full 25 per cent guilty plea discount, which I consider to be appropriate. This would bring the end sentence down to 11.5 months imprisonment, which would equate to just under six months’ home detention if the general “rule of thumb” of home detention sentences equating to about half of the relevant term of imprisonment were applied.

Home detention or community-based sentence

[31] Ms Vea submitted, however, that the appropriate sentence was not one of home detention, but rather one of community detention and community work (combined with reparation). Ms Vea submitted that a sentence of community detention would be suitable given her personal circumstances, and the requirement to

impose the least restrictive outcome and to assist rehabilitation and reintegration. Ms Vea submitted that the Judge placed undue weight on the seriousness of the offending and the need to deter and denounce.

[32] Ms Vea cited Maa v Ministry of Social Development in support of this submission.²⁰ In that case, the appellant successfully appealed against a sentence of seven months’ home detention and 100 hours’ community work for two charges of deception and seven charges of dishonestly using a document. Primarily due to concerns that the appellant might lose her job as a result of the imposition of home detention, the Court substituted the sentence of home detention with one of community detention, community work and reparation. In this case, however, Ms Vea is a beneficiary and there is accordingly no risk to her employment arising out of

the imposition of home detention.

[33] The respondent submitted, on the other hand, that a sentence of community detention and community work would be out of line with existing case law and would not satisfy the purposes of accountability, responsibility, and deterrence. Further, given Ms Vea’s personal circumstances, including her significant child care responsibilities, home detention may be more suitable than a sentence involving community work that would take her away from her family obligations.

[34] I do not consider that anything less than home detention would meet the purposes of accountability, responsibility, denunciation and deterrence. I also note that under s 80C(3)(c) of the Sentencing Act 2002, an offender may leave the home detention residence for purposes approved by the probation officer. Therefore, it would be possible to impose conditions to allow Ms Vea to drop off and pick up her children from school if Ms Vea’s probation officer was satisfied in all the circumstances that such a course was necessary and appropriate. That would of course be entirely a matter for him or her.

[35] Undertaking the sentencing exercise afresh, I have concluded that a sentence of 11.5 months’ imprisonment would be appropriate. I have also concluded that

_{substituting a sentence of home detention can be justified, but any lesser sentence}

²⁰ Maa v Ministry of Social Development [2013] NZHC 1846.

would not meet the relevant purposes and principles of sentencing. It necessarily follows from these conclusions that an end sentence of six months’ home detention, as imposed by the sentencing Judge, is not manifestly excessive, but is within the range that can properly be justified by accepted sentencing principles.

Result

[36] The appeal against sentence is allowed in part. The sentence of reparation is quashed and replaced with an order that Ms Vea pay reparation in the sum of

$13,000, by way of weekly instalments of $50 per week. The appeal against the

_{sentence of a term of six months’ home detention is dismissed.}

Katz J