IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-452
[2024] NZHC 1756
BETWEEN BETTY LEUINA SIO
Appellant
AND
THE KING (SFO)
Respondent
Hearing: 7 May 2024 Counsel:
N P Chisnall KC and L A Elborough for Appellant N E Walker and M Taumoepeau for Respondent
Judgment:
1 July 2024
JUDGMENT OF BREWER J
This judgment was delivered by me on 1 July 2024 at 3 pm
Registrar/Deputy Registrar
Solicitors/Counsel:
N P Chisnall KC | L A Elborough (Auckland) for Appellant Kayes Fletcher Walker (Manukau) for Respondent
SIO v R [2024] NZHC 1756 [1 July 2024]
Introduction
[1] On 29 March 2023, Ms Sio was found guilty by Judge Y Yelavich1 on two changes of dishonestly using a document.2
[2] On 16 August 2023, the Judge declined Ms Sio’s application to be discharged without conviction and fined her $3,000.3
[3] Ms Sio now appeals her convictions and, separately, the refusal to discharge her without conviction.
[4] The appeal against convictions is brought on the ground that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.4
[5]“Miscarriage of justice” is defined:
… means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[6] An appeal against a refusal to discharge without conviction is said to be an appeal against both conviction and sentence.5 In reality, an appellate Judge assesses whether the sentencing Judge erred in their application of the principles governing discharges without conviction to such an extent that a discharge without conviction should be entered.
Background
[7] Ms Sio was the Chief Executive of a charitable organisation called Pacific Island Safety and Prevention Incorporated (the Project). Her friend, Ms Uitime, was
1 SFO v Sio [2023] NZDC 774.
2 Crimes Act 1961, s 228(1)(b). The maximum sentence is seven years’ imprisonment.
3 R v Sio [2023] NZDC 17631.
4 Criminal Procedure Act 2011, s 232(2)(b).
the Operations Manager. The following passages, which I accept, are from the Crown’s submissions:
2.2The Project was established as a not-for-profit incorporated society on 17 October 1995. It later became a registered charity. Its aims and objects included “to provide a service to the greater Auckland community, in the area of prevention, education, counselling and development of the Pacific Island Community”.
2.3One of the Project’s rules was that its income and property had to be applied solely towards the promotion of the objects of the Society, except for payments in good faith of “reasonable remuneration to any officer or servant of the Society or to any members of the Society in return for a service actually rendered to the Society.”
2.4The Project described itself as a community development social service integrating cultural practices to…
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- [2024] NZHC 1756
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