R v Amani - [2020] NZHC 3260

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-3382

[2020] NZHC 3260

THE QUEEN

v

RON JUNIOR AMANI

Hearing: 9 December 2020

Appearances:

E Smith for Crown

M Pecotic for Defendant

Judgment:

9 December 2020

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Auckland

R v AMANI [2020] NZHC 3260 [9 December 2020]

[1] Mr Amani, you appear for sentence today having pleaded guilty to a charge of money laundering.1 I have not yet entered a conviction because your counsel indicated at the time of your plea that you would be applying for discharge without conviction. You have now filed an application for discharge without conviction and filed two affidavits in support of that. This morning I also heard you cross-examined on aspects of your affidavits that the Crown did not accept.

[2] It is necessary for me to deal with the application for discharge without conviction before moving on to consider any sentence that should be imposed on you if the application is unsuccessful.

Application for discharge without conviction: relevant principles

[3] 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 court is required to impose a minimum sentence.

…

[4] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[5] When determining an application under s 106 the Court is required to consider three issues.2 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating

1 Crimes Act 1961, s 243(2): Maximum penalty 7 years imprisonment.
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].

factors of the offending itself. Factors personal to the offender may also be relevant.3 Next, the Court must identify the direct and indirect consequences of a conviction being entered. Thirdly, it must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.

The gravity of the offending

[6] The first issue the Court is required to determine is the overall gravity of the offending. As I have already observed, this takes into account not only the aggravating and mitigating facts of the offending but also relevant factors personal…

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 R v Amani

Details

AGLC: R v Amani [2020] NZHC 3260
Case: [2020] NZHC 3260
Decision Date: 9 December 2020

CaseChat Overview and Summary

The case of R v Amani involved the defendant, Ron Junior Amani, who appeared before the Auckland Registry of the High Court of New Zealand for sentencing after pleading guilty to a charge of money laundering. The defendant had applied for a discharge without conviction, which the court considered before deciding on any potential sentence. The court's primary task was to determine whether the direct and indirect consequences of a conviction would be disproportionate to the gravity of the offence, as per section 107 of the relevant Act. The defendant's culpability was assessed as low to moderate, considering his involvement in enabling a criminal transaction and his prior convictions for dishonesty and violent offences, although some of these were historic and not directly relevant.

The court evaluated the consequences of a conviction, focusing on the potential loss of employment, restrictions on overseas travel, and the stigma of a conviction. The court found the risk of job loss to be overstated due to the nature of the defendant's employment and his employer's positive assessment of him. The court also determined that the stigma of a conviction was unlikely to be significantly different from what the defendant already experienced due to his prior convictions in Australia. Therefore, the court concluded that the direct and indirect consequences of a conviction were not disproportionate to the gravity of the offending.

Given the above, the court declined the application for discharge without conviction and entered a conviction. The court decided on a starting point of imprisonment of around one year and six months, considering the aggravating factors of the offence. After applying a discount for the defendant's early guilty plea, the sentence was reduced to one year and six weeks. The court opted for a sentence of community detention, allowing the defendant to continue working while being electronically monitored during evenings, balancing deterrence and rehabilitation needs. The defendant was sentenced to six months of community detention with specific special conditions, including restrictions on communication and association with co-offenders and the Comanchero Motorcycle Club.

Orders