Vea v R - [2014] NZHC 1959

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-190 [2014] NZHC 1959

BETWEEN
SEINI MOHEKIVOHA VEA

Appellant

AND

THE QUEEN

Respondent

Hearing: 18 August 2014

Counsel:

H Kim for Appellant
T Hu for Respondent

Judgment:

18 August 2014

ORAL JUDGMENT OF KATZ J

Solicitors: Meredith Connell, Auckland

Counsel: H Kim, Barrister, Auckland

VEA v THE QUEEN [2014] NZHC 1959 [18 August 2014]

Introduction

[1] In late 2011, Tongan members of the Church of the Latter-Day Saints began planning for a school reunion to be held in Tonga in July 2012. A fundraising committee was formed to raise money towards the airfares of those attending. Ms Vea was appointed the president of that committee.

[2] Ms Vea subsequently told the committee that she had booked a charter flight for the trip. That was not true. A total of 132 seats on the flight were, however, sold to people who were hoping to attend the reunion, at a cost of $29,200. On 28 June
2012, the day before the planned flight was due to depart, Ms Vea called an emergency meeting, which was attended by a large proportion of the family representatives who had purchased tickets. At that meeting, Ms Vea claimed that she had been informed by the pilot that an extra $100,000 was required for the trip to go ahead. Attendees were also informed that full refunds would be provided if requested. There is no evidence, however, that any refunds were ever made.

[3] Ms Vea pleaded guilty in the District Court to 30 charges of causing loss by deception.1 Judge AJ Johns sentenced Ms Vea to six months home detention and ordered that she pay reparation in the sum of $27,450, by way of weekly instalments.2 Ms Vea now appeals her sentence. She says it was manifestly excessive and unjust in all the circumstances.

Approach to appeal

[4] The Summary Proceedings Act 1957 applies in this case as the charge was laid before the commencement of the date of the Criminal Procedure Act 2011.

[5] An appeal against a sentence is a general appeal which will be by way of rehearing. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that the High Court may quash or vary a sentence where it is “clearly excessive or
inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating

1 An offence under s 240 of the Crimes Act 1961 which carries a maximum penalty of seven
years’ imprisonment.
2 This appears to have been the sum of $29,200 paid by the victims, less an amount successfully recovered by one victim who pursued a claim in the Disputes Tribunal.

to the offence or the offender’s character or personal history were not before the

Court imposing sentence”.

[6] The approach to be taken to appeals under s 121(3) was set out in Yorston v

Police3 where the Court said:

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an…

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 Vea v R

Details

AGLC: Vea v R [2014] NZHC 1959
Case: [2014] NZHC 1959
Decision Date: 18 August 2014

CaseChat Overview and Summary

Seini Mohekivoha Vea appealed against her sentence of six months home detention and a reparation order of $27,450. Vea argued that the reparation order was manifestly excessive and that the home detention sentence was manifestly excessive and unjust. The High Court reheard the appeal and found that the reparation order was indeed excessive. The Court substituted a reparation order of $13,000, payable in weekly instalments of $50 per week. The Court found that the sentence of six months home detention was not manifestly excessive, as it was within the range that can properly be justified by accepted sentencing principles.

The High Court considered the appropriate starting point for sentencing, taking into account the nature of the offending, the period of offending, the number of victims, the amount of loss, the motivation for the offending, the abuse of position of trust, and the impact on victims. The Court found that a starting point of 18 months' imprisonment would appropriately reflect Vea's culpability. The Court then adjusted the starting point, taking into account mitigating factors such as Vea's previous good character and the payment of reparation, and the discount for a guilty plea. The Court found that an appropriate end sentence would be 11.5 months' imprisonment, which equates to just under six months' home detention.

The Court also considered whether the sentence should be one of home detention or a community-based sentence. The Court found that a sentence of home detention was appropriate, as it met the purposes of accountability, responsibility, denunciation, and deterrence. The Court also noted that conditions could be imposed to allow Vea to drop off and pick up her children from school if her probation officer was satisfied that such a course was necessary and appropriate. The Court therefore dismissed Vea's appeal against the sentence of six months' home detention.

Orders