Funaki v Niue Police [2020] NUHC 11; CR 36 of 2020 (11 December 2020)

IN THE HIGH COURT OF NIUE

APPLICATION: CR36/2020

IN THE MATTER OF Section 1 of the High Court Rules Amendment No 2

BETWEEN DELYSE FUNAKI

Appellant

AND NIUE POLICE

Respondent

Hearing: 11 December 2020 (Zoom)

Judgment: 11 December 2020 (NZ)

DECISION OF THE HIGH COURT

Introduction

[1] This is an appeal of the sentence of Delyse Funaki that was imposed on 24 June 2020. The Court Order reads:

And having entered a plea of Guilty to all the offences stated above IT IS HEREBY ORDERED that;

Therefore, Court sentences the Defendant – Miss Delyse Funaki using the Niue Act 1966, Sect 28 – Labour instead of Imprisonment and therefore orders you to Community Service for a period of 1 year – this is a total of 1040 hours which is 4 hours a day, 5 days a week for 24 months.

Furthermore, as you and your family has stated in Court that monies stolen will be fully repaid – it is therefore noted in Court that repayment in full to the accounts concerned will be carried out following consultation and agreement with parties concerned. This agreement and the repayments will be monitored by the Registrar to ensure that this is carried out in a proper and correct manner to ensure full repayment of monies stolen.

In Addition

• The Community Service will be monitored by the Police.
• Defendant is not to travel overseas for a period of 2 years on an occasion.
• Defendant is not to reappear in the Court within the next 2 years.
  • Defendant is to also undergo Counselling session as arranged by Court Registrar for a period of 6 months and Counsellor to submit a report every month to Court Registrar.
  • Court is taking request from Prosecution to use Niue Act 1966 Section 28 – Labour instead of Imprisonment.

[2] Mr Guest on behalf of the appellant appeals the decision. The main contention that Mr Guest has is that the Court did not have jurisdiction to impose that the defendant is not to travel overseas for a period of two years on any occasion. In his view, this adds an extra 12 months sentence on top of the community service.
[3] The appeal is granted in part in that I agree with Mr Guest that the Court lacked jurisdiction to impose that part of the sentence.
[4] As with appeals from decisions of Land Commissioners and Justices of the Peace this is an appeal by way of rehearing. Therefore I heard from Police and Mr Guest as to the appropriate sentence.
[5] Having considered those matters put before the lower Court and the submissions of all parties, the Court Orders:

• (a) Ms Delyse Funaki is to complete 1,040 hours of community service within a period of 24 months.
• (b) Her and her family have stated in the Court that money stolen will be fully repaid. Repayment in full to the accounts concerned will be carried out following consultation and agreement with parties concerned. That agreement and the repayments will be monitored by the Registrar, to ensure that this is carried out in a proper and correct manner to ensure full repayment of monies stolen.

[6] Conditions of the sentence are that:

• (a) The community service will be monitored by the Police.
• (b) It is on the defendant to engage with the Police so that she can obtain community service and fulfil the sentence. Ms Funaki must take some responsibility in order to work with the Police, so that she can complete her community service hours appropriately.
• (c) The defendant is to undergo counselling sessions as arranged by the Court Registrar for a period of six months and counselling is to submit a report every month to the Court Registrar.
• (d) All fines, Court costs, reparations/restitution are to be paid to Department of Justice, Lands and Surveys and Community Services at Fonuakula, Alofi.
  

Dated at Rotorua, Aotearoa/New Zealand this 11^th day of December 2020.

_________________
C T Coxhead
CHIEF JUSTICE