Tuisila v Police - [2012] NZHC 3416

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-92 [2012] NZHC 3416

MARY ULALEI TUISILA
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 11 December 2012

Counsel: N P Bourke for Appellant
M J Ferrier for Respondent

Judgment: 14 December 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 1.30pm on the 14th day of December 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1] Ms Tuisila pleaded guilty to one charge of theft by a person in a special relationship and one charge of using a document to obtain a pecuniary advantage. She was sentenced by Judge Mill in the District Court at Lower Hutt on
4 October 2012. He discharged her without conviction on the charge of theft but ordered compensation of $1,206. On the charge of using a document he convicted her and ordered her to pay reparation of $767. Ms Tuisila appeals against conviction
and sentence on that charge. The essence of the submission on appeal, as it had been

TUISILA V NEW ZEALAND POLICE HC WN CRI-2012-485-92 [14 December 2012]

before the sentencing Judge, was that she should have been discharged without conviction on that charge also.

[2] The facts were that the appellant was employed as an administration support officer for Child, Youth and Family in the National Office, which is part of the Ministry of Social Development. In July 2011, she was given a Ministry work cell phone to hold by her manager after it had been returned to the Ministry by a staff member who had resigned. She took the cell phone without her manager’s approval and between 11 September and 2 December 2011 made over 8,000 unauthorised calls and texts totalling over $900.00. She then lost the phone valued at over
$250.00.

[3] As part of her role the appellant had access to taxi vouchers which were available for use by staff members for work related matters. During the investigation into the cell phone matter, the Ministry became aware that between September and November 2011 the appellant had misused 36 taxi vouchers, mainly to commute to and from work, to a total of $767.10.

[4] In his sentencing remarks, the Judge described the test to be applied to the application for discharge without conviction in these terms:1

I can discharge without conviction if I am satisfied under s 107, but only if I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. I must determine how serious this offending was, I must determine the direct and indirect consequences of the conviction and be satisfied that they are out of all proportion to the gravity of the offending.

In determining the seriousness of the offence I can take into account mitigating and aggravating factors relating to the offence itself, but personal mitigating circumstances are relevant only if I find the test is met, and are deciding whether to discharge without conviction. So, the…

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 Tuisila v Police

Details

AGLC: Tuisila v Police [2012] NZHC 3416
Case: [2012] NZHC 3416
Decision Date: 14 December 2012

CaseChat Overview and Summary

Tuisila appealed against her conviction and sentence for using a document to obtain a pecuniary advantage. The facts were that Tuisila had made unauthorised calls and texts using a work phone, and had misused taxi vouchers for work-related travel. The legal issue was whether the District Court Judge had erred in his application of the disproportionality test under s 107 of the Sentencing Act 2002, by not taking into account personal mitigating factors such as Tuisila's guilty plea and remorse. The High Court found that the Court of Appeal had established that personal mitigating factors must be taken into account in the s 107 disproportionality test, and that the Judge's approach in this case was in error. The Court therefore allowed the appeal, quashed the conviction and discharged Tuisila without conviction.

Orders