Vaafusuaga v New Zealand Qualifications Authority
[2012] NZHC 2541
•2 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000227 [2012] NZHC 2541
BETWEEN MARYANNE VAAFUSUAGA Appellant
ANDNEW ZEALAND QUALIFICATIONS AUTHORITY
Respondent
Hearing: 24 September 2012
Appearances: E J Burton and J M Scott for Appellant
A R Longdill and S P Beswick for Respondent
Judgment: 2 October 2012
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 2 October 2012 at 2:00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………...
Solicitors: Public Defence Service, P O Box 90243 Victoria Street W, Auckland 1142
Fax: 909) 302-1962 – E Burton / J Scott
Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – A Longdill / S Beswick
VAAFUSUAGA V NZ QUALIFICATIONS AUTHORITY HC AK CRI-2012-404-000227 [2 October 2012]
Introduction
[1] Over a period of several months in 2011 Ms Vaafusuaga enrolled students in courses at an organisation she controlled, Genesis Eight International College of Security. She issued certificates to three students that purported to confer New Zealand Qualifications Authority (NZQA) qualifications, these being a National Certificate in Security (Level 2) and a National Certificate in Security (Level 3). In fact, the college was not registered with NZQA and Ms Vaafusuaga had no authority to issue the certificates.
[2] The issuing of the certificates gave rise to nine charges under the Education Act 1989. Three of the charges were for issuing a false qualification and six for granting an award with the name “national” in it without the consent of NZQA. Each charge carried a maximum penalty of a fine of $10,000. This was the first prosecution for offending of this type under the Education Act.
[3] Ms Vaafusuaga pleaded guilty to all the charges. Judge Aitken imposed a total fine of $7,000 in respect of all the offending. Ms Vaafusuaga appeals the sentence on the ground that the fine was manifestly excessive as a result of:
(a) The Judge imposing fines on a cumulative rather than concurrent basis;
(b)The total fine imposed being out of proportion to the gravity of the overall offending; and
(c) The Judge failing to give proper recognition to Ms Vaafusuaga’s
genuine remorse.
The Judge’s approach on sentencing
[4] The Judge applied the Taueki approach, notwithstanding that the penalty was limited to a fine.[1] Neither counsel suggested that the Judge was wrong to do this. In
[1] R v Taueki [2005] 3 NZLR 372 (CA).
setting a starting point, Her Honour specifically noted that Ms Vaafusuaga knew she was not permitted to hold herself out as issuing certificates that complied with NZQA and that, although the offending was towards the lower end of the scale, it was not totally unsophisticated. The Judge identified the effect on the victims and the fact that there was no real financial gain to Ms Vaafusuaga. The Judge did, however, emphasise the deterrence aspect in terms of the need to maintain the integrity of New Zealand’s education system. Her Honour concluded that Ms Vaafusuaga’s offending was neither at the upper end of the scale nor at the
bottom, putting it at “about the 15-20 per cent range”.[2] The Judge fixed a fine for
[2] R v Vaafusuaga DC Auckland CRI-2012-004-000475, 21 June 2012 at [20].
each offence on that basis:[3]
[3] At [21].
[21] As I said, your offending does not fall right at the bottom, close to but not at the bottom, and I fix the starting point, therefore, in a range of 15-
20 per cent. That would be a fine in respect of each offence as a starting point of between $1500 and $2000. However, when I have regard to the specific informations, it is important to point out that three charges relate to
each of the three victims. They are discrete offences, there is no doubt about that, and they are charges that relate to offending that purported to confer a
benefit that was ultimately worthless, but the offending is, in my view, interrelated and for that reason I would pitch the starting point at the lower
end of that scale; in other words at $1500 per charge.
[5] The Judge went on to increase that starting point by $75 (about five per cent) for the aggravating factor of Ms Vaafusuaga’s previous dishonesty offences and then allowed a 25 per cent discount for Ms Vaafusuaga’s guilty plea. That reduced the end fine on each charge to $1,175, which would result in a total fine of $10,575. The Judge then considered whether that figure was too high. Although the Judge did not refer to s 40 of the Sentencing Act I infer that she was making her assessment with that provision in mind:
[26] When I stand back and look at the offending, I am satisfied that that is too high a fine overall. It is important to denounce and deter this conduct. The cost of you registering with the NZQA would have been about that same amount but I look first of all at your personal circumstances. You are currently in receipt of a domestic purposes benefit. You have indicated through your counsel that you can pay a fine, that you would be able to pay it at the rate of $30 per week. But taking into account your personal circumstances a fine of over $10,000 is frankly unrealistic and would not be paid probably in the course of your lifetime. Not only have I had regard to your own personal means but I have had regard to where a fine of over
$10,000 would sit in the summary jurisdiction in the District Court and it is,
on any view, a very high fine. It is rare, in other words, Ms Vaafusuaga, for this Court to impose such a significant fine in its summary jurisdiction.
[27] I have taken the view also that while a cumulative approach would, in my view, be justified in respect of each of these offences, it is not appropriate to lose sight of the fact that in respect of these three victims, this was a continuum of offending notwithstanding the three charges.
[28] At the end of the day I have reached the view that a total fine of
$7,000 is appropriate …
Was the sentence manifestly excessive?
[6] Counsel approached the argument on the basis of whether the appropriate approach was one of concurrent rather than cumulative sentencing on the basis that general guidance could be obtained from s 84 of the Sentencing Act 2002, notwithstanding that it is directed specifically towards sentences of imprisonment. However, I do not find an analysis that turns on the concepts of concurrent and
cumulative sentencing apt or helpful.[4]
[4] Indeed, I do not accept that fines may be imposed concurrently: see P F Olsen Ltd v Bay of Plenty
Regional Council [20122] NZHC 2392 at [45].
[7] Where fines are imposed for multiple offences it is the end result that matters, with the way the fines are constructed of less significance.[5] I respectfully agree with the observations made by Tipping J in Munro v Ministry of Agriculture and Fisheries when considering an appeal against fines imposed for several offences relating to the completion and furnishing of fisheries returns:[6]
It is, I think, as in so many cases, a question of assessing what is a fair total both in the public interest and fair to the particular defendant for everything which arises and then allocating the fines within the total in a logical and convenient manner. One should not, in my view, get too carried away with the precise internal mechanics by which one reaches the total provided that there is some reason and logic to it.
[5] R v Xie [2007] 2 NZLR 240 (CA) at [16] – [18].
[6] Munro v Ministry of Agriculture and Fisheries HC Greymouth AP7/95, 2 November 1995.
[8] In this case the Judge did not begin her sentencing process by finding a total that fairly reflected all the relevant factors. Rather, she found a starting point ($1,500) that would fairly reflect a single instance of the offending in this case and then applied it to each of the offences before considering whether the total fairly
reflected the relevant factors. The reasons that the Judge gave for considering that a
total fine of $7,000 was appropriate were the need to denounce and deter, Ms Vaafusuaga’s financial circumstances and the fact that a fine of over $10,000 would be rare in the District Court. The Judge added comments that appear to relate to culpability but it is unclear what effect those comments had on the assessment that a fine of $7,000 would be appropriate.
[9] While the Judge’s approach was not, in itself, erroneous I consider that in this case it resulted in a fine that is manifestly excessive, for two reasons. The first is that the overall culpability was not as great as the bald fact of nine offences might suggest. As I have already noted, the nine charges actually related to six certificates, with some certificates giving rise to more than one offence. Further, there were only three students affected, with two of the six certificates being issued to each of the three students. In addition, Ms Vaafusuaga did not benefit at all from her offending. Although $1,500 would fairly reflect an isolated instance of offending it does not follow that applying that figure nine times over fairly reflects the offending in this case. However, that approach led to the starting point from which the Judge made her adjustment for totality. Where a totality assessment is conducted by reference to a starting point that is too high there is a real risk that any reduction to reflect totality will be influenced by that starting point. In my judgment that has happened in this case.
[10] Secondly, I accept that some additional credit should have been given for Ms Vaafusuaga’s remorse. The expression of Ms Vaafusuaga’s remorse came in the form of a letter written to NZQA at a very early stage. She pleaded guilty to the various charges in June 2012 which the Crown and the Judge accepted as being the earliest reasonable opportunity. However, in February 2012 she had written a letter to NZQA admitting her wrongdoing and signalling her acceptance of any punishment imposed on her. The Judge referred to the letter and then said:
[24] … I am prepared to accept that you are remorseful for what has happened. As I have indicated, this was a “not for profit” enterprise and that gives some weight to your claims of remorse, but it is not the sort of exceptional remorse that would permit a discount of any sort.
[11] The letter was written well before Ms Vaafusuaga entered her plea and was accepted by the Judge as a genuine expression of remorse. No money had been lost.
Ms Vaafusuaga had not made any money. It is difficult in a situation such as this to see what else Ms Vaafusuaga could have done to demonstrate greater remorse. In the circumstances, I consider that some further credit should have been given.
[12] I consider that had an assessment of the totality of the offending and mitigating factors been undertaken without reference to a starting point based on the accumulation of nine fines of $1,500 it is very unlikely that the figure of $7,000 would have been selected. This was an offender who had not offended for personal gain, had not taken money from any of the victims, whose offending had ultimately affected only three students and who was remorseful. The major issue for the sentencing Judge was deterrence because of the importance of the integrity of the New Zealand qualifications system. Taking all of these factors into account, I consider that a fine of $4,500 would fairly reflect the relevant factors.
[13] The appeal is allowed. The sentence imposed by the District Court is substituted with a fine of $4,500 which is to be constructed by allocating a fine of
$480 to each charge and $180 for court costs. The fine is to be paid at a rate of $30
per week.
P Courtney J
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