Malapaka v Police - [2020] NZHC 1121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-427

[2020] NZHC 1121

BETWEEN
KRISHNA MALAPAKA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 May 2020

Appearances:

J Harder for Appellant

L N Wilson for Respondent

Judgment:

26 May 2020

JUDGMENT OF LANG J

[on appeal against refusal to grant discharge without conviction]

This judgment was delivered by me on 26 May 2020 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland Counsel:
J Harder, Barrister, Auckland

MALAPAKA v NEW ZEALAND POLICE [2020] NZHC 1121 [26 May 2020]

[1] Mr Malapaka pleaded guilty in the District Court to a representative charge of theft by a person in a special relationship.1 The maximum penalty for that offence is seven years imprisonment.

[2] On 17 September 2019, Judge J C Down declined an application by Mr Malapaka to be discharged without conviction under s 106 of the Sentencing Act 2002.2 Mr Malapaka appeals against that decision.

The offending

[3] Mr Malapaka pleaded guilty on the basis of two summaries of agreed fact. These recorded that the offending occurred whilst Mr Malapaka was employed as a loan officer for a credit union. The credit union offers banking and financial services to its members.

[4] On 19 occasions between 12 January 2018 and 19 February 2019 Mr Malapaka used an automated teller machine (ATM) to withdraw cash from members’ accounts. Each withdrawal was for amounts between $200 and $400. On one occasion he was responsible for processing an application by a member for a loan of approximately
$1,000. He altered the application so that it sought a loan of $1,653. He then transferred the amount of the loan to the member’s account but then withdrew the sum of $600 from an ATM. In total Mr Malapaka stole $5,200 from members in this way.

[5] The credit union refunded members the amounts that Mr Malapaka had taken from their accounts. He subsequently reimbursed the credit union in full for these sums.

[6] When the police spoke to Mr Malapaka about his offending he said his mother had been injured in an automobile accident in India and that he had stolen the money to pay for their medical treatment. In an affidavit filed in support of the present application he also said he had suffered a recurrence of an old injury to his spine and the medical costs needed to treat this were not covered by ACC. Both of these matters placed him under significant financial pressure and led to his offending.

1 Crimes Act 1961, s 220.
2 New Zealand Police v Malapaka [2019] NZDC 26415.

Relevant principles

[7] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence 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 Malapaka v Police

Details

AGLC: Malapaka v Police [2020] NZHC 1121
Case: [2020] NZHC 1121
Decision Date: 26 May 2020

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was asked to consider an appeal against the refusal of the District Court to grant Krishna Malapaka a discharge without conviction under the Sentencing Act 2002, following his guilty plea to theft by a person in a special relationship. The appellant argued that the consequences of a conviction, including potential deportation, would be out of all proportion to the gravity of the offending. The legal issues were whether the Judge erred in assessing the gravity of the offending and the likely consequences of conviction, and if the consequences were out of all proportion to the gravity of the offending.

The court considered the gravity of the offending, which included several aggravating factors: the offending was calculated and premeditated, it involved a degree of sophistication, and it was a breach of trust. The court also took into account mitigating factors such as the early guilty plea, previous good character, and full repayment of the stolen funds. The court found the gravity of the offending to be at the lower end of moderate to serious. Regarding the consequences of conviction, the court noted that a conviction would likely affect the appellant's future employment prospects and result in deportation. The court found the consequences to be in the mid-range of moderate to serious. The court concluded that the consequences of conviction were not out of all proportion to the gravity of the offending, as required by the statutory test, and thus the Judge did not err in declining the application for discharge without conviction.

The appeal against the refusal to grant a discharge without conviction was dismissed. The court found the Judge correctly assessed the gravity of the offending and the likely consequences of conviction, and determined that the consequences were not out of all proportion to the gravity of the offending.

Orders