Telea v Police - [2020] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-84

[2020] NZHC 3284

BETWEEN
ROPATI LUI TELEA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2020

Counsel:

N Levy QC for Appellant

A C Jeffares for Respondent

Judgment:

11 December 2020

JUDGMENT OF ELLIS J

[1] Between September 2005 and February 2011 Mr Telea worked at the Transport Accident and Investigation Commission (TAIC). For the last four of these years he transferred some $284,381 of TAIC’s funds into bank accounts in his own name or in other entities associated with him. I put on record at the outset of this judgment the advice recently received from TAIC’s chief executive (both at that time and now) that:

[Mr Telea’s] activities while working at TAIC have left an indelible mark on the organisation and its employees. One employee lost their job because of his activities, through no fault of their own but was nonetheless held to account for perceived lack of oversight.

The residual damage in loss of trust and confidence has been immense. The scale of the fraud was overwhelming for such a small state sector organisation where funding is hard fought for.

[2]I have no doubt that all of that is true.

TELEA v NEW ZEALAND POLICE [2020] NZHC 3284 [11 December 2020]

[3] When Mr Telea’s fraud was uncovered, he was charged with two representative charges of dishonestly using a document.1 He pleaded guilty to those charges.

[4] At sentencing, a reparation report was before the Court. With the assistance of his family, Mr Telea offered a lump sum payment of $10,000 and then further reparation of $100 per week. The District Court Judge noted that TAIC did not accept that offer and that consideration was being given to pursuing civil remedies against Mr Telea. She noted that the offer to make reparation was “a significant factor to be considered” when it came to sentence.

[5] The Judge noted that she could only order reparation at a rate that Mr Telea could actually afford. On the basis of the reparation report she made an order for reparation of $10,000 as a lump sum payment with “the balance” to be paid by instalments of $100 per week. The Judge did not impose any end date for the repayments but said that the payments would be kept under review and could be increased if and when Mr Telea was able to pay a larger amount and “if there are any assets which are available to be sold when they exceed the value of the liabilities on them though that sale can then be considered.” The Judge additionally sentenced Mr Telea to:2

(a)Home detention for a period of 10 months; and

(b)300 hours of community work.

[6] Mr Telea paid the lump sum as directed and has now been making weekly reparation payments for almost nine years. He has therefore paid reparation to TAIC of around $51,000. If he were to be…

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 Telea v Police

Details

AGLC: Telea v Police [2020] NZHC 3284
Case: [2020] NZHC 3284
Decision Date: 11 December 2020

CaseChat Overview and Summary

In Telea v Police, the High Court considered the appeal of Ropa Lui Telea, who had been convicted of dishonestly using a document to transfer funds while working for the Transport Accident Investigation Commission. Telea was sentenced to home detention, community work, and a reparation order requiring him to pay $10,000 as a lump sum and $100 per week. The reparation payments were to continue until the full amount of the stolen funds was repaid. Telea had been making payments for almost nine years, totalling approximately $51,000, but his financial situation deteriorated, and he was unable to continue making the payments. Telea appealed the reparation order on the basis that it had become unaffordable and oppressive.

The court had to determine whether the reparation order, as currently constituted, was creating undue hardship and should therefore be cancelled. It also had to consider whether any alternative sentence should be imposed in light of the cancellation of the reparation order. The court noted that there was no dispute that an order of reparation was appropriate in this case, but the Crown agreed that the current order was creating undue hardship and should be cancelled. The court held that the reparation order had been made on the assumption that Telea's financial position would improve, but this assumption had proved incorrect. The court also noted that if the current order were to be maintained, it would be inconsistent with recent authorities which had held that undue hardship would be caused if a reparation order required a payment for a period of more than five years.

The court allowed the appeal, cancelled the reparation order, and deemed the outstanding amount of reparation to be remitted from the date on which Telea ceased making payments. The court held that there was no real suggestion that any further sentence should be imposed, as Telea had long since served the remainder of his sentence and had been wholly compliant with the reparation order for nine years, which was a longer period than could now be justified. The court also noted that Telea no longer lived in New Zealand, which made any substituted sentence highly problematic.

Orders