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Police v Fereti [2017] WSDC 19 (7 September 2017)

THE DISTRICT COURT OF SAMOA
Police v Fareti [2017] WSDC 19


Case name:
Police v Fareti


Citation:


Decision date:
7 September 2017


Parties:
POLICE (Prosecution) v FATA FARETI of Mulifanua but currently of Tafaigata Prison.
(Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
Criminal


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Alalatoa Rosella Viane Papalii


On appeal from:


Order:
  1. Fata your end sentence is, a conviction on all charges and sentenced to serve a total of 26 months imprisonment with time you spent in custody pending this sentence to be deducted from that term.
  2. Upon your release you are placed under probation for six months and during this time, you are to attend the teen challenge programme for six months as well with the hope it will set your life back on track.


Representation:
Ms Atoa for Prosecution
Ms Leavai for Accused


Catchwords:
Obtaining by Deception
Obtaining by False Pretence
Theft
Procuring and Misleading the Electoral Commissioner
Recidivism


Words and phrases:


Legislation cited:
Crimes Ordnance 1961 ss 85, 86 (b) & (d), 89
Crimes Act 2013 ss 172 and 173(a)
Electoral Act 1963 ss41 (1) (a) and s41(2)
Sentencing Act 2016
NZ Sentencing Act 2002


Cases cited:
Comptroller of Customs v Leilua [2015] WSSC 72P v Sua [2017] WSDC 6
Costello v R [2015] NZCA 512
Hesel v R [2010] NZSC 135
P v Ah Kuoi [2016]WSSC 45
P v Bourne [2016] WSDC 39
P v Finau [2016]WSDC 33
P v Gianno & Stanfied [2016] WSSC 4
P v Lemalu [2015] WSSC 79
P v Sam [2016] WSDC 52
P v Varjan CA 97/03, 26 June 2003
P v Young Yen [2014] WSSC 19
P v Hudson [2016] WSDC 45
R v Filo [2007] NZCA 20
R v Rautahi CA 78/2011 [2011] NZCA 351
Stanfield v NPO [2016 WSCA 11


Summary of decision:

THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN


POLICE
Informant


AND


FATA FARETI of Mulifanua but currently of Tafaigata Prison.
Defendant


Representation:
Ms Atoa for Prosecution
Ms Leavai for Accused


Sentencing Date: 7 September 2017


SENTENCING REMARKS OF JUDGE VIANE PAPALII

CHARGES

  1. The Defendant Fata Fareti Fiti (“Fata”) appears for sentence on the following dishonest offences affecting various victims:
    1. 11 charges of obtaining by false pretence pursuant to s89 of the repealed Crimes Ordnance 1961 (“CO”) with a maximum penalty of 3 years imprisonment;
    2. 4 counts of obtaining by deception brought pursuant to ss172 and 173(a) Crimes Act (“CA”) with maximum penalty of 7 years imprisonment;
    1. 7 theft charges contrary to ss85 & 86 (b) CO with a maximum imprisonment term of 1 year;
    1. 2 theft charges pursuant to ss85 & 86 (d) CO with a maximum penalty of 5 years imprisonment;
    2. 1 count of misleading the Electoral Commissioner (“EC”) pursuant to s41 (1) (a) Electoral Act 1963 (“EA”) with a maximum penalty of a fine of $5000 or imprisonment for 6 months; and
    3. 1 charge of procuring the commission of an offence pursuant to s41(2) EA with the same penalty of a maximum fine of $5000 or 6 months imprisonment.
  2. You pleaded guilty to some of the charges and changed your plea to others through your counsel on 24/01/17.
  3. You now appear for sentence.

THE OFFENDING

  1. There are six (6) different victims affected by your dishonest offendings with incidents spanning from September 2011, February 2013, March 2013, January 2015 and October to November 2016.
  2. Prosecution has helpfully broken down the summary of facts (“SOF”) to six separate incidents for each victim. I will follow the same pattern for ease of reference.
  3. For the two separate charges brought by the EC contrary to the EA, these took place on 21 May 2015 and 16 September 2015.
  4. I note your acceptance of the summary of facts through your counsel.

First Incident

  1. On 13/09/11 at 12pm, the complainant a 57 year old male of Palisi went to Farm Tech Supply at Fugalei to purchase some chairs. The shop was closed but you were there. You approached the victim and misled him into believing that you worked for Farm Tech and that he could place his order and pay it through you. The victim believed you and gave you $400.
  2. Soon after, you took off with the money. You were charged on 26/09/11 with one count of obtaining by false pretence.

Second Incident

  1. Seven days later on 20/09/11, at 8am, the victim here, an 86 male of Vaileleand his family went to the Quarantine Office (“QO”) at Matautu to treat their finemats (faaasu). You were there and you asked the victim if they were there to treat their fine mats. The victim replied “yes” and you then accompanied the victim’s driver to the QO where the finemats were left overnight for treatment to be uplifted the next day.
  2. Sometime after the victim and his family had left the QO, you went back and misled the QO staff that your father had sent you to pick up the finemats as the trip had been cancelled. The staff believed you and released the finemats to you.
  3. Of the 9 finemats you took, eight (8) were valued at $2000 and one (1) at $5000; a total of $21,000.
  4. You were subsequently charged on 22/09/11 with 1 count of theft and another for obtaining by false pretence.

Third incident

  1. Between 1 & 28 February 2013, the victim a 67 year old male of Faleasiu was at the Court complex and had a conversation with you where you represented “o a’u e fai la’u piki maukegi”. You also represented to the victim that his sons could go on this pumpkin picking scheme. You asked the victim on this first meeting if he had a fine mat for your faalavelave. The next day you uplifted this from the victim’s house.
  2. On the same month, you called the victim and indicated that two of his sons could go on the trip and to pay you $200 each for their passports. To spice up things, you added that the money would be sent to NZ by bank cheque to process the visas. The victim, whom by now was completely under your spell and trusted you, paid you $400.
  3. A week later, you kept the momentum going on your deception by asking the victim for a size 2 pig for the lawyer in charge of processing the travel documents. This was done. The pig is said to be valued at $400.
  4. After that you asked for $100 from the victim, he gave you $70 instead.
  5. On the same month of February you asked for another size 2 pig. Still believing you were preparing travel documents for the victim’s sons, he killed the pig, roasted it and delivered it to you.
  6. On the same occasion, you uttered words of inducement to further lure the victim into your plot of “aua gei mis ile aso Lulu e o aku ai kamaiki e fai le lakou fogo in le ofisa o le loia o Latu”. But you knew very well this was a lie.
  7. The total value of the fruits of your false representations from this victim was $2170.
  8. You were charged on 10/05/13 with 7 counts of obtaining by false pretence and 7 theft counts.

Fourth Incident

  1. A month later you attacked again. This time the victim was a 54 year old male of Vailele- Uta, one of your acquaintances.
  2. You assisted the victim, Filiga Miti in processing his entitlement with NPF. The victim was informed to uplift his cheque on 9 March 2013. On 8 March 2013, you marched into the NPF office and misled the officer that you were Filiga Miti. Tricked by your false representation, the cheque was released to you.
  3. You then went to Westpac Bank, and misled the bank officer you knew there that you were one and the same person as Filiga Miti and cashed out the cheque of $592.32. The next day when the victim went to uplift his cheque from NPF it was then discovered that the cheque was released to the wrong person.
  4. You were charged on 25/03/13 with 1 count of obtaining by false pretence and another for theft attracting a penalty of not more than 5 years imprisonment.

Fifth Incident

  1. On 27/01/15, you approached the victim, a business man at his business at Alafua. You asked the victim for $500 to process your father’s land and it would be repaid in due course. The victim believed you and gave you $500.
  2. On 28/01/15 you again approached the same victim and sought $1000 again for the land documents on the basis it would be repaid. This was done.
  3. On 5/02/15, you went back and conned another $700 off the same victim who gave in yet again to your request on the belief you would repay it. This never happened. The total monies you obtained by deception from this victim is $2200.
  4. You were subsequently charged on 12/03/15with 3 counts of obtaining by deception.

Sixth Incident

  1. On 31 October 2016, you struck again. This time the victim was a 53 year old female of Lalovaea married with nine children and employed at Nelson’s Public Library.
  2. You told the victim here that youhad a half acre land you could sell her at a low price. Believing this to be true, the victim went with you to MNRE to obtain the plan of the land. The victim then gave you $60.
  3. You requested further monies to process the paperwork and on 1/11/16, the victim gave you $50. On 2/11/16 she gave you $130.The next day $800.00. The total monies the victim gave you was $1040.
  4. You were subsequently charged with 1 count of obtaining by deception.

Election Related Offences

  1. On the charges of misleading the EC brought pursuant to s41(1) (a) EA and procuring the commission of an offence contrary to s42(2) EA, according to the SOF, on 21/05/15 you went to the office of the Electoral Commissioner (“OEC”) to register your name for the 2016 General Elections under the village Mulivai. However your application was rejected by the EC on the basis the Pulenuu of that village could not confirm you were from Mulivai.
  2. On 27/05/15, you returned to the OEC with the pulenuu of Mulivai for registration of your name. You told the EC that your name was Hile Fiti Tala and the Mulivai village council had confirmed you were from Mulivai.
  3. The EC accepted your explanation and proceeded to process your registration using the E –Roll system for scanning your finger prints. However, it was then discovered that Hile Tili’s fingerprints had already been registered on the system under yours truly, as Fareti Fiti.
  4. But your deception did not stop there. Even when caught by OEC, on 16/09/15, a person by the name of Siaumau was on the road at Moamoa waiting for the bus. You were with some men. You stopped the vehicle you were travelling in and asked Siaumau to come with you to register for Siumu and she would be paid accordingly.
  5. She did accompany you. At the OEC further enquiries were made of Siaumau where it was discovered she was not actually from Siumu.
  6. You were then charged with these offences.

THE ACCUSED

  1. You are 50 years old of Saaga Siumu, separated from your wife with two children. You have a low level of education having finished at Standard 3. You have no stable home, banished from your village and remanded in custody at the moment pending sentence.

THE VICTIM

  1. There are a number of victims as set out in the SOF and under the offending section of this Decision.
  2. It is confirmed that you did not apologise to any of the victims.
  3. The victim of the second incident relating to the finemats as confirmed by the Prosecution recovered 5 finemats valued at $2000 each and 1 valued at $5000. A total of $15,000 thereby reducing the value of the items in the second incident from $21,000 to $6,000.00.
  4. The remaining victims where money and other items are involved did not receive any restitution or recover any of the items you took from them by deception and under false pretence.

AGGRAVATING FEATURES OF OFFENDING

  1. Your offending was, premeditated and calculated. Your plan on each occasion well thought out and executed with precision. Each time you observed and calculated who your next victim would be. You targeted public places where you knew members of the public could easily fall prey to your “best laid traps”.
  2. The multiplicity of your offendings and duplicity of victims places this on the high level of the scale for this type of offending. It occurred over a lengthy period of time spanning from 2011 to 2016.
  3. Your conduct was grossly deceitful and level of culpability high. Your actions were cruel and manipulative causing undue hardship and harm to all concerned.
  4. A common pattern is evident. You preyed on older people aged between the early fifties to 87. You must have been really good and skilful at inducing the victims because they all fall for your lies and deceit. The victims trusted you and you abused that trust. They relied on your word to their detriment.
  5. The victims suffered irreparable loss as to date, you have not made right the harm you inflicted on them except for the finemats recovered by the victim of the second incident. There has not been any form of restitution or reconciliation offered or done by the time of sentencing. This aggravates your offending even more.
  6. I note that for the first incident you were charged on 26/09/11 and on 22/09/11 for the second incident. I assume this could be because Police were only able to charge you for the first incident when the complaint was laid for the second incident and you were arrested and interrogated.
  7. Your matter was called in this Court on 11/10/11 bail was granted. You pleaded guilty but failed to appear for sentence on 23/11/11 whereby a warrant of arrest was issued. This remained outstanding for some time.
  8. In the meantime whilst on bail with a warrant outstanding, you committed the offences in the third and fourth incidents. Police were finally able to execute the warrant and arrest you on 19/03/13. You were remanded in custody and your matter adjourned to 29/04/13 for sentencing. You failed to appear on that date and another warrant was issued.
  9. At some point, you must have been granted bail again because the fifth incident was committed between 27/01/15 to 5/02/15 and those relating to the OEC were on 21 & 27/05/15 and 16/09/15.
  10. You were arrested for the OEC matter and remanded in custody for first mention of those charges on 3/11/15. Bail was denied on that occasion by Judge Tuala Warren. However it was later granted with conditions on 24/11/15 by Judge Roma. Whilst out on bail, you committed the offences in the sixth incident.
  11. You totally disregarded your bail conditions. Whilst out on bail with sentence pending on some of the maters you reoffended.
  12. For some time, the charges arising from the first to fourth incidents of 2011, 2013 and 2015 remained in the system pending sentence partly because warrants of arrest remained outstanding against you. It also suggested you evaded Police. This is a strain on state resources and on the Court’s time goals and case management.

AGGRAVATING FACTORS PERSONAL TO YOU AS OFFENDER

  1. You are a recidivist of this type of dishonest offending. Your previous conviction record which your counsel confirmed reflects the following:
  • Date
  • OFFENCE
  • SENTENCE
  • 2208/07
  • False Pretense x 2
  • Convicted &sentenced to 2 years imprisonment
  • 25/08/08
  • Escape
  • Convicted &sentenced to 2 months imprisonment to be served cumulatively.
  • 10/11/09
  • Theft
  • Convicted &suspended sentence for 2 years and ordered to serve 80 hours of community service
  • 10/11/00
  • Threatening words False pretence
  • Convicted and suspended sentence for 2 years

  1. Your record shows you have graduated from 2 different types of dishonest offences namely theft and false pretence. Today you appear for sentence on the same offences plus obtaining by deception which is yet again, another type of dishonest offence and more severe.
  2. These offences you now appear on for sentence spans from 2011, 2013, 2015 and 2016. Some charges from 2012 and 2016 were withdrawn.
  3. In P v Su’a[1] an obtaining by deception case, I referred to the NZ Court of Appeal case of R v Rautahi[2] where that Court said that previous convictions are a relevant aggravating factor, which the Court must take into account to the extent applicable, under s 9(1)(j) of the NZ Sentencing Act 2002.
  4. The NZ provision above mirrors s.7(1)(j) of our Sentencing Act 2016 (“SA”) citedw:

“8220;7. Aggravating and mitigating factors –(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:

(i) the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time.”

  1. The learned CJ Sapolu in P v Lemalu[3] identified previous conviction as an aggravating feature relating to the accused as an offender. Our Courts have been adopting the same approach.
  2. As canvassed above, you committed some of the offences whilst out on bail. I also consider it as an aggravating factor personal to you.
  3. You also failed to comply with Court orders regarding your court appearances and bail conditions and for some time warrants of arrests remained outstanding against you. These are all aggravating features personal to you as an offender.

MITIGATING FACTORS RELATING TO YOU AS AN OFFENDER

  1. The only mitigating factor is your guilty plea. There are no mitigating features of your offending.
  2. I do not consider your age as a mitigating factor. If anything it should have deterred you from committing this offence. Unfortunately that is not the case here.
  3. Your counsel argues that you only committed these offences because you were desperate struggling to get by being homeless and disowned by your family. I do not buy that. A Samoan has many roots meaning families. In any event your suffering hardship in life is a lame excuse for going on a crime spree.
  4. I do not consider your banishment a mitigating factor as there is nothing before me to suggest that it was a consequence of any of these offences.

Discussion

  1. In passing sentence, I bear in mind the sentencing purposes our Court’s have adopted now set out in s5 SA. These are to hold you accountable for the harm you have done to the victim and community by your offending; to promote in you a sense of responsibility and acknowledgement of the harm you inflicted and to denounce your conduct and deter you and others from committing this offence.
  2. The applicable principles of sentencing are set out in s 6 (a), (b) (e) & (f) SA. These include the gravity of your offending and the degree of culpability which I view as high; the seriousness of the offences indicative in the penalties imposed by Parliament; the general desirability of consistency with appropriate sentencing levels...in similar offending; and the effects of your offending on the victim.
  3. I must say your previous conviction record is a big concern especially since it infers you have a “predilection” to commit dishonest types of offending such as the present. The fact that it involves a “multiplicity of criminal acts over a period of time”[4] being 6 years is enough to ring alarm bells.
  4. As was said by the NZ Court of Appeal in R v Filo:[5]

“Previous convictions may properly be considered in the determination of an appropriate sentence for a person with a background of offending in related ways: R v Howe [1982] 1 NZLR 618 (CA). See also Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, 478 (HCA). As was noted by this Court in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 at 597:

...the previous convictions of a prisoner may indicate a predilection (sic) to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.”

  1. The approach discussed in the authorities of R v Casey and R v Howe is consistent with s 9(1)(j) of the NZ Sentencing Act 2002 as well as our own s7(1) (j) SA.
  2. I bear in mind the principles of the Community Justice Act 2008 which promotes the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.
  3. But for you Fata, the community is not safe from you. I view you as a high risk to innocent, gullible and vulnerable members of our community who must be protected against your evil schemes. It is certainly impracticable and inconsistent with the safety of the community to grant you a non custodial sentence and keep you in the community.
  4. Your counsel tells the Court you are remorseful but I doubt that very much. I am not satisfied that the remorse in this case goes beyond that which is implicit in your plea of guilt but more due to the situation you are now caught in. But not once have you personally apologised to any of the victims to show true remorse.
  5. Your deceit is on the high level even to the point of misleading the EC whom as we all know, bears the hard job of registering and keeping accurate records for Election purposes. But you had the audacity to deceive the EC and procure the commission of an offence against the EA. I bear in mind in this sentence the implied policies of the EA and the need to protect its due process and integrity.
  6. The level of premeditation on your part is significant. As I said above, you chose your victims well. You breached their trust. The first victim lost $400 when you misled him to believe you worked for Farm tech.
  7. The second victim involving the fine mats suffered a loss of finemats to the value of $21,000. The fact the finemats were brought to be treated suggested the victim intended to send these to a destination overseas for a faalavelave. But they were unable to because you took these under false pretence with the intention of permanently depriving the victim. The only mitigating factor is the return of the 6 finemats with a total value of $15,000. But the victim did not recover the rest and he suffered loss to the value of $6000.
  8. For the third victim involving the so called pikiga maukegi scheme, it is obvious his family struggles to make ends meet. You preyed on his vulnerability and mislead him into believing that his sons would be going on this bogus scheme when you knew very well this was a lie. You probably applaud yourself each time you got away with your deception and laugh at the victim’s gullibility. This victim suffered loss to the value of $2170 namely; monies in the sum of $470; fine mats to the value of $400, 2 x size 2 pigs valued at $400 and $900 respectively.
  9. I am doubtful about the value of the size 2 pigs as it seems quite expensive. I also know you can buy a roasted size 2 from Taro King for less than $200. Nevertheless your counsel did not make this an issue and in any event you pleaded guilty to these offences.
  10. For the fourth victim of the NPF entitlement, you breached his trust as your acquaintance when you conned him of his entitlement. He suffered a loss of $592.32.
  11. I am concerned you were able to waltz into NPF and Westpac Bank to uplift and cash the cheque with so much ease without tight security measures in place not even a simple enquiry for proof of identification. These two institutions must do something about this and ensure this does not recur to protect the interests of contributors.
  12. The fifth victim, a businessman of Alafua you asked for money to borrow with the intention of repaying suffered a loss of $2200.
  13. The sixth victim is a librarian. You would go into the library pretending to read books but at the same time plotting your next victim. Your frequent visits to the library allowed the victim to trust you leading to her believing you that you had land to sell. You even accompanied her to the MNRE to obtain the plan on whose land I do not know. Then you slowly squeezed money out of her. She was left without any land but a permanent hole in her pocket of $1040. She too never retrieved her money back.
  14. As I said above, your actionswas calculated, manipulative and cruel. This was chronic serial offending, committed with complete disregard of the welfare of the victims. To a substantial part it was committed whilst you were on bail.
  15. As I observed in Su’a, this type of offending is becoming far too prevalent in our small society. It was so easy for you to con the victims. Although you finished school at Standard 3, this is not reflected in the level of your manipulative schemes. You managed by quite ingenious and very premeditated methods to extract money and other items from each of the six victims. In simple terms, you became a professional.
  16. As I said in Su’a as well:

“...a strong message must be sent to you and the public that the courts and our community do not condone this type of deceitful conduct. If you are facing hardships in life, find a job or work the land and go fishing. But do not deceive innocent gullible people. If you feel tempted to do it, then be ready to face the consequences.”

  1. Taking all the circumstances of the offendings including the aggravating and mitigating factors, the only sentence that is warranted in the circumstances is a custodial sentence. This sentence is in my view, consonant with the principles and purpose of sentencing set out above. It aims to denunciate your conduct and instil some sense of responsibility in you and deter others.
  2. I will adopt the balancing approach taken by Justice Nelson in P v Young Yen[6] and Judge Clarke as he was known then in P v Sam[7]. So the second tranche of your sentence is rehabilitative and aims to assist turn your life around. I am a firm believer that it is still possible to achieve this and that you can live the remainder of your life crime free. It is not too late, Fata. Let this be a final lesson to you.
  3. The question left for me to consider is the starting time and length of imprisonment term for you to serve. On this issue I take guidance from decisions by our Courts regarding this type of offending. But I also bear in mind the words of the learned Judge in Hesel v R[8] that “a robust analysis in each case is pertinent”.
  4. As observed by CJ Sapolu in P v Ah Kuoi[9] which I followed in Sua, there is no tariff case for fraud cases in Samoa. He referred to the approach in NZ as set out by the leading case Court of Appeal case of R v Varjan[10] where it stated that:

“[22] Culpability is to be assessed by reference to the circumstances and such factors as the nature of the offending, its magnitude and sophistication; the type, circumstances and number of the victims; the motivation for the offending; the amounts involved; the losses; the period over which the offending occurred; the seriousness of breaches of trust involved; and the impact on victims”.

“[23] It is in the assessment of culpability that comparison with other case is to be undertaken. Matters of mitigation such as reparation, co-operation with investigators, plea, remorse and personal circumstances necessarily must be assessed in each particular case.”

  1. The learned, CJ Sapolu further observed that the guidance provided in R v Varjan&#160been been applied in a number of NZ fraud cases. More recently, it was applied by the NZ Court of Appeal in Costello v Rme="fnB="fnB11" href="#fn11">[11] which was concerned with an appeal agasentenceon charges of obtaining by deception.
  2. I take note of CJ Sapolu’s sentencing remarks above as well as those in e in P v Gianno & Stanfield[12] and observations by our Court of Appeal in the same latter matter[13]. In the spirit of consistency I have carried out a comparative analysis of sentences passed by the Courts for similar offending such as P v Finau[14], P v Hudson[15], P v Bourne[16], P v Sam[17], P v Young Yen[18] and Comptroller of Customs v Leilua[19]. But I bear in mind the circumstances of your offending is different from these cases.
  3. As a sentencing Court, I must in the circumstances of your offending, balance two competing principles which as was said in R v Rautahi are:

“...the principle that the character of the offender is relevant to the preventive and deterrent purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other.”.

  1. I am not punishing you twice for your earlier offending. But your criminal history, reoffending whilst on bail and chronic failure to comply with Court orders leading to outstanding warrants, is a relevant sentencing consideration that goes towards your character.
  2. Prosecution has recommended a starting time of three (3) years imprisonment with an uplift of 6 months for your previous convictions. Your counsel seeks 2 years starting time with an uplift of 6 months.
  3. For the electoral related offences, EC as Prosecutor seeks a starting time of 4 months. Your counsel concurs with this.
  4. Having regard to all the aggravating features, mitigating factors, principles and purpose of sentence and totality principle, I will take the obtaining by deception charges as the leading charge, followed by the theft charges attracting a penalty of 5 years imprisonment, then obtaining by false pretence with a maximum penalty of 3 years imprisonment, theft with 1 year imprisonment and finally procuring and misleading the OEC.
  5. For the two charges of obtaining by deception arising from the fifth and sixth incidents with a total value of $3240, I will take a starting point of 2 ½ years as appropriate. This is to be uplifted to 6 months for your previous conviction and another 6 months for the aggravating factors and totality of offending. Therefore a total of 3 ½ years.
  6. I reduce this to 12 months for your guilty plea and a further reduction of 6 months for the finemats that was returned. As I said, I do not consider your remorse sincere so I will not grant a separate and discrete discount for this. There are no other mitigating factors.
  7. You are convicted and sentenced to serve 24 months imprisonment with time in custody pending sentence to be deducted from this term.
  8. For the two corresponding theft charges relating to the Second (1 count) and fourth incident (1 count) with the total value of $6592.32 carrying 5 years imprisonment maximum penalty, you are convicted and sentenced to 18 months for each count concurrently.
  9. For the 11 obtaining by false pretence charges with a maximum imprisonment term of 3 years relating to the first (1 count), second (1count), third (7 counts) and fourth incidents (2 counts), you are convicted and sentenced to 12 months imprisonment for each count again on concurrent terms. .
  10. There are 7 corresponding theft charges with maximum penalties of 1 year imprisonment arising from the third incident. You are convicted and sentenced to 6 months imprisonment on each count to be served concurrently.
  11. For the electoral related offences, a starting time of 5 months is suitable. I will deduct 3 months for your guilty plea. This is the only mitigating factor. You are sentenced to serve 2 months imprisonment cumulatively to the lead charge.
  12. Upon your release you will be placed under probation for 6 months and ordered to attend the teen challenge programme for 6 months to assist with your rehabilitation especially your spiritual wellbeing. A report is to be furnished to the Court upon the completion of that programme.

Penalty

  1. Fata your end sentence is, a conviction on all charges and you sentenced to serve a total of 26 months imprisonment with time you spent in custody pending this sentence to be deducted from that term.
  2. Upon your release you are placed under probation for six months and during this time, you are to attend the teen challenge programme for six months with the hope it will set your life back on track.

JUDGE ALALATOA ROSELLA VIANE PAPALII


[1]P v Sua [2017] WSDC 6
[2] R V Rautahi CA 78/2011 [2011] NZCA 351
[3] P v Lemalu [2015] WSSC 79
[4]As per CJ Sapolu in Comptroller of Customs v Leilua [2015] WSSC 72
[5]R v Filo [2007] NZCA 20 at [21]- [22].
[6]P v Young Yen [2014] WSSC 19
[7]P v Sam [2016] WSDC 52
[8]Hesel v R [2010] NZSC 135.
[9]P v Ah Kuoi [2016]WSSC 45
[10]P v Varjan CA 97/03, 26 June 2003 at paras 22 & 23
[11]Costello v R [2015] NZCA 512
[12]P v Gianno Stanfied [2016] WSSC 4
[13] Stanfield v NPO [2016] WSCA 11
[14]P v Finau [2016]WSDC 33 a sentencing decision of Judge Clarke as he was known then
[15]P v Hudson [2016] WSDC 45 another sentencing decision by Judge Clarke
[16]P v Bourne [2016] WSDC 39 a sentencing decision of Judge Roma
[17]P v Sam [2016] WSDC 52
[18] Supra n 6
[19] Supra n 3

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