Lilo v The Queen - [2021] NZCA 642

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

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

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.
[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.
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”.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lilo v The Queen

Details

AGLC: Lilo v The Queen [2021] NZCA 642
Case: [2021] NZCA 642
Decision Date: 2 December 2021 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Alanah Lilo against her conviction and sentence for her involvement in an arson attack on a Vodafone cell tower in Papatoetoe. Lilo was charged as a party to the offence alongside Mr Fuasino, the primary offender. The key issue before the court was whether the District Court Judge had erred in declining Lilo's application for a discharge without conviction, and if so, whether this warranted an appeal against her conviction and sentence. The court also considered the appropriate legal principles and authorities applicable to the granting of a discharge without conviction under the Sentencing Act 2002.

In considering the appeal, the Court of Appeal found that the District Court Judge had properly assessed the gravity of Lilo's offending and the consequences of a conviction. While Lilo's counsel argued that the gravity of the offending was relatively low, the court found that the Judge had correctly identified the aggravating and mitigating factors and had appropriately categorised the offending as being of medium or moderate seriousness. The Court of Appeal also found that the Judge had adequately considered the consequences of a conviction for Lilo, including the loss of a clean criminal record, the stigma of a conviction, and the impact on her mental wellbeing and employment prospects. The court concluded that the consequences of conviction, while significant, were not so disproportionate to the gravity of the offending as to warrant a discharge without conviction.

Accordingly, the appeal against Lilo's conviction and sentence was dismissed by the Court of Appeal. The court found that the District Court Judge had correctly assessed the gravity of the offending and the consequences of a conviction, and had imposed an appropriate sentence that balanced the need for punishment, deterrence, and rehabilitation.

Orders