Sionetuato v Police - [2014] NZHC 626

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…

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: [2014] NZHC 626
Decision Date: 1 April 2014

CaseChat Overview and Summary

Joseph Sionetuato appealed the sentence imposed on him by Judge Walker in the Wellington District Court for theft by a person in a special relationship. The court had to determine whether the District Court made an error when imposing a sentence of 22 months and two weeks' imprisonment on Mr Sionetuato. The appeal was based on two grounds: the necessity for a disputed facts hearing on the amount of money taken, and whether the sentence and reparation of $76,000 were manifestly excessive, warranting a community-based sentence instead. The court found that an error in sentencing occurred because Mr Sionetuato did not understand that by entering a guilty plea, he was admitting to stealing $76,200, as he believed he was only admitting to taking $400. The court concluded that a disputed facts hearing should have been held to resolve the amount taken, as the sum was critical to the severity and reasonableness of the sentence.

The court considered the legal principles governing an appeal and noted that under section 250 of the Criminal Procedure Act 2011, the first appeal court must allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. The court found that an error had occurred due to a factual misunderstanding and directed a disputed facts hearing to take place in the District Court. The sentence imposed by Judge Walker was quashed, and the appeal was allowed.

Orders