Sionetuato v Police
[2014] NZHC 626
•1 April 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-000005 [2014] NZHC 626
BETWEEN JOSEPH SIONETUATO Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 31 March 2014
Counsel: C L Hollingsworth for Appellant
M J Ferrier for Respondent
Judgment: 1 April 2014
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether, when imposing a sentence of
22 months and two weeks’ imprisonment on Mr Sionetuato for theft by a person in a special relationship,1 the District Court made an error, and if so, whether a different sentence should be imposed.2
[2] This question arises because Mr Sionetuato has appealed the sentence imposed on him by Judge Walker in the Wellington District Court on 4 February
2014. The sentence was imposed after Mr Sionetuato pleaded guilty to the charge.
Background
[3] Mr Sionetuato was employed as a sandwich maker for a Subway fastfood outlet in Porirua. His duties included serving customers and using the till. He was
in charge of taking money from the till and placing it into a safe. Mr Sionetuato was
1 Crimes Act 1961, ss 220 and 223(a). Maximum penalty is seven years’ imprisonment.
2 Criminal Procedure Act 2011, s 250(2)(a) and (b).
SIONETUATO v NEW ZEALAND POLICE [2014] NZHC 626 [1 April 2014]
required to print off a receipt from the till, take $200 in cash, place it into a bank deposit bag, and place the deposit bag into the slot on the top of the safe.
[4] On 30 August 2013 at 10.44 am and 11.56 am, Mr Sionetuato entered on the computer that he had completed cash drops on the cash register and placed the receipts in the till. At approximately 12.05 pm Mr Sionetuato opened the cash register, counted out two separate amounts of $200 in cash, and placed them into two separate deposit bags with the receipts he had printed earlier.
[5] Mr Sionetuato took the two deposit bags and placed them on top of the safe. He pretended to clean around the safe and in doing so pushed the money bags into a rubbish bin adjacent to the front of the safe. He picked up the bin containing the cash and took it to the back of the premises. When he believed that he was out of sight from the surveillance camera and other staff members he placed both bags of money into the pocket of his jacket.
[6] After being made aware of Mr Sionetuato’s actions, the owners of the outlet started investigating earlier cash discrepancies. They concluded that on most occasions when Mr Sionetuato was at work he would take money.
[7] The summary of facts states that between 8 October 2012 and 29 August
2013 Mr Sionetuato stole hundreds of bags of cash totalling $76,200. He was shown on surveillance footage from 13 to 30 August 2013 taking money on 24 occasions.
[8] When spoken to by the police Mr Sionetuato admitted taking $400 on
30 August 2013. He denied any other thefts.
Judge Walker’s decision
[9] Judge Walker recorded that the particular features of the offending were the large number of thefts involved, the breach of trust, the substantial amount taken and the serious effect of the thefts on Mr Sionetuato’s employers both emotionally and
financially.3 He read the pre-sentence report and took into account the submissions
by Mr Sionetuato’s then counsel.
[10] Judge Walker adopted a starting point of two and a half years’ imprisonment. He reasoned that Mr Sionetuato’s absence of previous convictions was not a mitigating factor because there was repeated offending over a period of time. The only mitigating factor Judge Walker found was the plea of guilty. Judge Walker reduced the sentence to an end sentence of 22 months and two weeks’ imprisonment.
[11] Judge Walker considered home detention was inappropriate. He made a reparation order of $76,000 to be paid at $50 a week with the first payment 14 days after Mr Sionetuato’s release from prison.
Grounds of appeal
[12] Mr Sionetuato appealed against his sentence in relation to the theft by a person in a special relationship on two bases:
(1)There should have been a disputed facts hearing on the amount of money taken; or alternatively
(2)The end sentence of 22 months and two weeks’ imprisonment and reparation of $76,000 was manifestly excessive and a community based sentence should have been imposed instead.
[13] When the appeal was called before me on 11 March 2014, Mr Sionetuato provided an affidavit from Mr John Miller, the principal of the law firm that has acted for Mr Sionetuato at all times. Mr Miller stated that Mr Sionetuato did not realise that when he entered his guilty plea, he was admitting to having taken the
$76,200. Mr Miller said Mr Sionetuato pleaded guilty believing that he thought a guilty plea would speed matters up, provide a discount to his end sentence and would help him avoid imprisonment. Mr Miller explained the history of the case, and that a
new lawyer within the same firm was now acting for Mr Sionetuato as his first
3 Police v Sionetuato DC Wellington CRI-2013-091-2314, 4 February 2014 at [4].
lawyer was on maternity leave. He explained that Mr Sionetuato has maintained the position that he did not take the amount of $76,200.
[14] Ms Hollingsworth, now acting for Mr Sionetuato, submitted that the sum taken was critical to the severity and reasonableness of the end sentence. The probation report indicated that Mr Sionetuato still firmly disputed the amount of
$76,200 taken, and he only admitted to taking $400 on 30 August 2013. Ms Hollingsworth sought a direction pursuant to s 251(2)(c) of the Criminal Procedure Act 2011 that I remit the sentence to the sentencing Court for a disputed facts hearing to resolve the amount taken. Alternatively, Ms Hollingsworth submitted I should allow the appeal against sentence and impose a non-custodial sentence.
[15] I do not need to discuss whether the appeal should be allowed on the second basis, as I am prepared to allow the appeal on the first basis advanced by Ms Hollingsworth.
[16] On 11 March 2014 I issued a minute explaining that I had decided to adjourn the appeal until 9.30 am on 18 March 2014. I ordered Mr Sionetuato file an affidavit explaining in detail the exact instructions he gave at the time he entered his guilty plea.
[17] I also requested that Mr Sionetuato’s first lawyer file an affidavit explaining her understanding of the instructions she received from Mr Sionetuato.
[18] On 18 March 2014 I received the sworn affidavits of Mr Sionetuato and his first lawyer. In his affidavit Mr Sionetuato explained that he did not understand that he had pleaded guilty to taking $76,000 until his partner and probation officer explained that is what he had done. Mr Sionetuato said that he thought he had only pleaded guilty to taking $400, but that he may have to pay back more in reparation.
[19] After hearing submissions from both counsel I issued another minute on
18 March 2014. I resolved that it was necessary for me to have Mr Sionetuato’s
evidence tested in cross-examination. To achieve this I adjourned the matter until
9.00 am on 31 March 2014. I issued an order to produce Mr Sionetuato at Court that morning at 9.00 am. I did not find it necessary for me to hear from Mr Sionetuato’s first lawyer.
Legal principles governing an appeal
[20] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to quash a sentence imposed by the District Court where it was found that the sentence was:
... one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...
Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed if the High Court was satisfied that the sentence imposed by the District Court was “manifestly excessive”. While the court was cautious before interfering with the discretion of the sentencing judge, there was a need to maintain consistency in sentences imposed for similar types of offending.
[21] Also prior to the commencement of the Criminal Procedure Act 2011, s 131 of the Summary Proceedings Act 1957 provided that in any appeal the High Court could remit the case to the District Court with a direction it be reheard.
[22] Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act 2011 provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[23] Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include, but are not limited to:
(1) errors of law;
(2) failing to take account of or not giving sufficient weight to relevant factors;
(3) taking account of irrelevant factors; and
(4) committing an error of principle, such as adopting a starting point that is disproportionately high.
[24] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.
[25] In summary, I proceed on the basis that I can only allow Mr Sionetuato’s appeal if I am satisfied that there is an error in the sentence which Judge Walker imposed and that a different sentence should be imposed.
[26] However this case is unusual because the appeal is advanced on the basis that the key fact upon which Mr Sionetuato was sentenced is disputed. Mr Sionetuato admits that he stole $400, but he denies that he took $76,200.
[27] The Criminal Procedure Act 2011 stipulates that I must allow the appeal if I am satisfied that for “any reason” there is an error in the sentence. “Any reason” may include any error. Therefore if I find that there was factual error, then I must allow the appeal. I will return to this issue of a factual error later.
[28] If I am to allow the appeal by finding that there was an error in the sentence, s 251 of the Criminal Procedure Act 2011 governs the types of orders I may make. Section 251(2) provides—
(1) The first appeal court must, within the limits allowed by law,—
(a) set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b) vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c) remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
[29] Section 251(3) provides—
In remitting a sentence under subsection (2)(c), the first appeal court may give the sentencing court any further directions it considers appropriate about the manner in which the specified action is to be taken by the sentencing court.
[30] Therefore if I find that there was an error in the sentence, I may make directions to the District Court to hold a disputed fact hearing to determine the correct amount of money that was unlawfully taken by Mr Sionetuato.
Did the District Court err when sentencing Mr Sionetuato?
[31] I have carefully considered the sentencing notes of Judge Walker, the submissions provided by both Crown and defence counsel, the affidavit of Mr Sionetuato and the cross-examination of Mr Sionetuato by Mr Ferrier. Mr Sionetuato admitted that he unlawfully took money from his workplace. He admitted that he pleaded guilty to taking the money. He did not understand that he was pleading guilty to unlawfully taking $76,200. He believed that he was being sentenced on the basis that he took $400.
[32] However the question I must consider is whether I am satisfied that an error in sentencing occurred. It is not enough for me to think that an error was likely to have occurred. The amount of money Mr Sionetuato unlawfully took is still in dispute.
[33] Regardless of whether it transpires that the amount taken was $76,200, an error in the sentence occurred because a disputed facts hearing would have been ordered had Judge Walker been made aware that Mr Sionetuato only accepted he stole $400.
[34] Section 24 of the Sentencing Act 2002 is the governing provision for a disputed facts hearing. The amount which Mr Sionetuato actually stole needs to be resolved in accordance with the principles set out in that section. In particular, a disputed facts hearing is required because if Mr Sionetuato stole significantly less than $76,200 his sentence is likely to be significantly different from that imposed by Judge Walker.
[35] Understandably Judge Walker did not consider it necessary to adjourn the case to a disputed facts hearing because Mr Sionetuato pleaded guilty to stealing
$76,200. In my assessment, this is where an inadvertent error in sentencing occurred.
[36] The error occurred because s 24(2) of the Sentencing Act 2002 was engaged and Judge Walker was deprived of information that would have made him adjourn the matter for a disputed facts hearing.4
[37] It was evident from Mr Sionetuato’s evidence, particularly during his cross- examination, that Mr Sionetuato has difficulty processing information conveyed to him by persons in authority. He struggles to give answers that may seem impolite or unwanted by the other party. Having heard Mr Sionetuato’s evidence I find it is credible that he did not understand he was pleading guilty to taking $76,200 when he entered his plea in the District Court. Therefore I am satisfied that an error in the sentence occurred because s 24(2) of the Sentencing Act 2002 should have been invoked.
[38] Therefore, I must allow the appeal on the basis that an error in sentence occurred because a disputed facts hearing should have been conducted. In allowing the appeal I will direct that a disputed facts hearing take place in the District Court.
[39] If the disputed fact hearing reveals a significantly lower sum of money was unlawfully taken by Mr Sionetuato, then the District Court will be in the best
position to impose an appropriate sentence.
4 Bayly v R [2013] NZCA 520 at [24]. The Court of Appeal dismissed the appeal, which was based on s 24(2), for reasons that I find to be different from Mr Sionetuato’s personal circumstances.
Conclusion
[40] The appeal is allowed.
[41] The sentence imposed by Judge Walker is quashed.
[42] I direct a disputed facts hearing take place in the District Court.
[43] Mr Sionetuato is to be released on bail on the same conditions as were imposed when he initially appeared in the District Court.
D B Collins J
Solicitors:
John Miller Law, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
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