Sio v R (Serious Fraud Office) - [2024] NZHC 1756

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).
5      Jackson v R [2016] NZCA 627.

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…

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.

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Details

Case: [2024] NZHC 1756
Decision Date: 1 July 2024

CaseChat Overview and Summary

Betty Leuina Sio appeals against her convictions and sentence for dishonestly using a document, and the Judge's refusal to discharge her without conviction. The appeal against conviction is that the Judge erred in her assessment of the evidence, resulting in a miscarriage of justice. The appeal against sentence argues that the Judge erred in her analysis of the consequences of a conviction under s 107 of the Sentencing Act 2002, and that the consequences of conviction were out of proportion to the gravity of the offending. The appeal against conviction is dismissed as the Judge's assessment of the evidence was not in error, and the circumstantial evidence was sufficient to reasonably convict Ms Sio. The appeal against sentence is also dismissed, as the Judge correctly assessed the consequences of conviction and did not err in finding that they were not out of proportion to the gravity of the offending.

Orders