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Alofa v Police [2018] NZHC 3156 (3 December 2018)

Last Updated: 6 December 2018


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000346
[2018] NZHC 3156
BETWEEN
PAUL ALOFA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
3 December 2018
Counsel:
BJ Meyer for Appellant HE Savage for Respondent
Judgment:
3 December 2018


JUDGMENT OF DOWNS J


This judgment was delivered by me on Monday, 3 December 2018 at 3 pm.



Registrar/Deputy Registrar










Solicitors/Counsel:

High Street Law, Auckland. Crown Solicitor, Auckland.








ALOFA v POLICE [2018] NZHC 3156 [3 December 2018]

The appeal


[1] Mr Paul Alofa was convicted of two charges of using a document for pecuniary advantage,1 and one of using a forged document.2 Judge J Jelas sentenced Mr Alofa to an 18-month prison sentence.3 Mr Alofa appeals sentence. He advances two discrete points: the Judge failed to provide for reparation; and personal circumstances.

Background


[2] Mr Alofa has an extensive history of fraud.

[3] On 31 January 2016, he opened an ASB bank account in the name Diego McCarthy. Between 1 February and 30 March 2016, Mr Alofa deposited 25 cheques into this account, all written on his closed ANZ account in the name Retzlaff Wichburger. Mr Alofa knew the recipient of a cheque may access a percentage of its face value before it has been cleared. By so-doing, he obtained a little over $25,500 from the ASB.

[4] The balance of Mr Alofa’s offending concerns an ASB account, which he had opened in the name Robert Tapu. In 2016, Motor Trade Finance reported it had received a valueless cheque in relation to this account. The cheque was accompanied by a letter which appeared to have been written by an ASB staff member, guaranteeing the cheque. The letter was a forgery. Motor Trade Finance suffered no loss.

[5] Mr Alofa admitted the offending to Police. And, later pleaded guilty.

Reparation


[6] Mr Alofa invited the Judge to discount his sentence because he said he had paid $8,000 to the ASB sometime before sentencing. The Judge did not do so for the simple reason she did not accept he had.




1 Crimes Act 1961, s 228(1)(b).

2 Crimes Act, s 257(1)(a).

3 Police v Alofa [2018] NZDC 9634.

[7] The topic was addressed in the pre-sentence report. It records Mr Alofa’s contention he had paid back approximately $8,000. And then observes:

Mr Alofa was afforded the time and opportunity to provide verification of his payments at the time this report was submitted. No verification had been received.


[8] Sentencing Courts are not required to act on a defendant’s every bald assertion, particularly when if true, readily available evidence would exist to prove the point. Section 24 of the Sentencing Act 2002 supports this view. It provides:

24 Proof of facts


(1) In determining a sentence or other disposition of the case, a court—

(a) may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and

(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:

(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:

(e) either party may cross-examine any witness called by the other party.

(3) For the purposes of this section,—

aggravating fact means any fact that—


(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that—


(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[9] As will be apparent, it is incumbent on the prosecution to prove the existence of a disputed aggravating fact beyond reasonable doubt, and negate, to the same standard, any disputed mitigating fact relating to the nature of the offence or the offender’s part in it, unless the mitigating fact is “wholly implausible or manifestly false”. A defendant is required to prove on the balance of probabilities the “existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence”.

[10] The alleged post-offence payment of $8,000 was a potential mitigating fact unrelated to both the nature of the offence and the offender’s part in it. So, it was incumbent on Mr Alofa to establish the claim. He did not. Mr Alofa has not sought to do so on appeal. It follows there is nothing in this point.

Personal circumstances


[11] Mr Alofa contends the Judge wrongly failed to ameliorate the sentence because of his personal circumstances, which the Judge summarised this way:4

... you are the main economic provider for your family and also the sole driver. Your mother-in-law who resides in your home ... requires regular dialysis and without your financial support and support in driving, it would be extremely difficult for other family members to provide for her care. It has also been submitted that you are engaged in the community through your church and sporting groups. You offer your time freely to others.


[12] Mr Alofa is right the Judge made no allowance for these. However, it does not necessarily follow the Judge erred. Personal circumstances unrelated to offending can mitigate a sentence, but whether they do so is context-dependent. Those identified by Mr Alofa attracted a margin of discretion. An offender’s family almost invariably

4 Police v Alofa, above n 3, at [14].

suffers when he or she is sentenced to a term of imprisonment; that, without more, does not necessitate a sentencing discount. The only factor that stands out in relation to Mr Alofa is the position of his mother-in-law, who, as the Judge observed, is unwell and lives with Mr Alofa’s family.

[13] As against this, Mr Alofa has 38 convictions for dishonesty-related offences dating back to 1988. And, this offending was committed while Mr Alofa was subject to post-detention conditions. The Judge uplifted the starting point by only three months for these aggravating features. That uplift could well have been higher. It follows any deduction that might have been given in relation to Mr Alofa’s mother-in- law was offset by the Judge’s generous approach in relation to aggravating factors, in circumstances in which the starting point (of 22 months’ imprisonment) is unimpeachable.

Result


[14] The appeal is dismissed.







...................................

Downs J


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