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 required to continue making payments at the previous weekly rate it would take him a further 45 years, by which time Mr Telea will be in his 80s.3 He now lives in Australia, and has a young family there.

[7]                  In March this year, due to COVID-19, Mr Telea contacted the Collections Unit at the District Court and obtained agreement that he could temporarily stop making

1      The charges carried a maximum penalty of seven years’ imprisonment.

2      Police v Telea DC Wellington CRI-2011-085-003452, 9 November 2011.

3      He was 27 at the time of sentencing.

the payments. It seems clear that his financial circumstances have deteriorated. He says he is no longer able to afford them and that the ongoing obligation has become oppressive. He has deposed:

6.... I have been paying the $100 per week instalments for approximately nine years. I have consistently paid the reparation despite periods of financial hardship, including when I was on minimum wage during my carpentry apprenticeship.

7.I have also married, have two young children, with one on the way, and relocated to Australia. Since living in Australia I completed a carpentry apprenticeship and had been working full time.

8.I am now a casual employee and cannot rely on a consistent income. Prior to COVID-19, I was able to do extra work as a musician but since March 2020 I have not been able to do so. As a result, I have struggled to pay rent and childcare bills.

9.I have insufficient means to pay for the total value of the loss and the weekly reparation payments are increasingly financially straining on my family.

[8]                  Had Mr Telea been sentenced after 1 August 2012, he would simply have been able to apply to the District Court under s 38A of the Sentencing Act 2002 to have his reparation sentence cancelled on the ground that it has become unaffordable. Upon the making of such an application the Court may cancel the reparation order and (if appropriate) substitute any other sentence that could have been imposed at the time of the original sentencing.

[9]                  Instead, however, Mr Telea is required to appeal against his sentence out of time. Leave to extend time for appealing was not opposed and was granted by  Simon France J on 12 November.

[10]              There is no dispute that an order of reparation was rightly made in Mr Telea’s case. But the Crown now essentially agrees that the order in its current form is creating undue hardship and should be cancelled. Although I agree with Mr Jeffares that the Judge clearly intended the reparation paid to be substantial, the order appears to have been made on the assumption that Mr Telea’s financial position would improve over time and that he might be able to make more meaningful reparation, more quickly. It is evident that that assumption has proved incorrect. And it seems clear that if the present order were to be maintained it would be inconsistent with the recent authorities

which have held that undue hardship will be caused if a reparation order requires a payment for a period of more than five years.4 The authorities prevailing at the time of Mr Telea’s sentencing suggested that the undue hardship threshold fell at around the eight year mark.5

[11]              In light of the agreement between the parties the only remaining question is whether some further sentence should be imposed. Ultimately, there was no real suggestion that it should be. Notwithstanding the very real harm caused by Mr Telea’s offending he has long since served the remainder of his sentence and has been wholly compliant with the reparation order for nine years, which is a longer period than could now be justified. Moreover, the Court is faced with the reality that Mr Telea no longer lives in New Zealand which makes any substituted sentence highly problematic.

[12]              For the reasons given above, the appeal is allowed. The sentence of reparation is cancelled. The amount of reparation outstanding is deemed to be remitted from the date on which Mr Telea ceased making payments, earlier this year.

Rebecca Ellis J

Solicitors:

Crown Solicitor, Wellington for Respondent

4      Under s 12(2) of the Sentencing Act 2002, a reparation order may not be imposed if it would result in undue hardship for the defendant or his dependants. And see the survey of “undue hardship” cases conducted by Woodhouse J in Guinness v Police [2015] NZHC 883.

5      See, for example, R v Vaillily CA251/04, 10 November 2004.