LILO v R [2021] NZCA 642

LILO v R [2021] NZCA 642 [2 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA468/2021[2021] NZCA 642BETWEEN ALANAH LILOAppellantAND THE QUEENRespondentHearing: 8 November 2021Court: Collins, Duffy and Dunningham JJCounsel: H G de Groot and B H Woodhouse for AppellantJ M Pridgeon and F J C Faull for RespondentJudgment: 2 December 2021 at 10.30 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)Introduction[1] On 19 February 2021, Ms Lilo pleaded guilty to one charge of arson. On 2 July2021 Judge Sharp declined Ms Lilo's application for a discharge without convictionand sentenced her to 12 months' intensive supervision and 100 hours' communitywork.11 R v Lilo [2021] NZDC 15926.[2] Ms Lilo appeals that decision. She says the Judge overstated the gravity of theoffending and, as a result, did not correctly weigh up whether the consequences of theconviction were out of all proportion to the gravity of the offending.The offending[3] Between March and June 2020, 14 cell-phone towers located in Auckland werethe subject of arson attacks.2 The primary offender, Mr Simione Fuasino, was chargedin respect of all 14 attacks. Ms Lilo was charged, as a party, in respect of one arsonattack on a Vodafone cell tower in Papatoetoe in the early hours of 28 April 2020.[4] The arson was planned and carried out by Ms Lilo and Mr Fuasino. Textmessages between Ms Lilo and Mr Fuasino prior to the arson demonstrate this. On17 April 2020, in the course of a text conversation with Ms Lilo, Mr Fuasino said"[a]yeee keen too do some poles" to which Ms Lilo replied "[h]aha yea". On26 April 2020, Mr Fuasino and Ms Lilo had a further text conversation in which hesaid "[t]ake me to do a burn den I'll chuck u 250 tmrw?". He also asked her "can wego look for a pole to burn" and Ms Lilo replied "[y]eh hahahaha". On 27 April 2020,there were further text messages between Mr Fuasino and Ms Lilo where she said "I'mjust the one for the bolts only ay" and where he then messaged a third party seeking a"grinder".[5] Ms Lilo then called Mr Fuasino just after midnight on the same night and droveMr Fuasino to a Vodafone 5G cell tower at the corner of Capital Place and Pah Road,Papatoetoe. The cell tower had an adjacent electrical box. Mr Fuasino removed thebolts, forced the cover of the box on the base of the tower open and set it on fire, alongwith exposed cables on the electrical box. This rendered the cell tower inoperable. Amember of the public observed the fire and called emergency services. The fire serviceextinguished the fire. On the morning following the arson, Ms Lilo exchanged textmessages with Mr Fuasino stating "[t]his is amazing" and "[s]he went viral". She latersent him an image of a burning cell-phone tower and a Fire and Emergency NZannouncement about the incident.2 While the summary of facts refers to 15 cell phone towers being subject to arson attacks only14 are referred to in that document and 14 charges were laid.[6] The loss caused to Vodafone New Zealand Ltd, as a result of this offending,was $169,061.89.The District Court decision[7] When Judge Sharp heard Ms Lilo's application for a discharge withoutconviction he had the following documentation in support of her application:(a) an affirmation from Ms Lilo;(b) a psychiatric report by Dr Lokesh;(c) text correspondence between Ms Lilo and another person;3(d) medical records from various mental health providers;(e) a number of character references, primarily from family members, insupport of Ms Lilo; and(f) a pre-sentence report.[8] In considering the gravity of the offending in the District Court, the Judge firstdiscussed this issue in the context of the sentencing exercise. He observed that arsonwas "one of the more serious crimes in the Crimes Act 1961"4 but also acknowledgedthat despite the inherent seriousness of the offence, each case needed to be consideredin light of its own particular circumstances.[9] In this case, the aggravating features of the offending were the extent ofMs Lilo's involvement in planning the offending, the extent of the damage, the factthe financial loss to the victim could not be addressed by reparation from Ms Lilo, andthe potential risk to fire fighters and the public, although the Judge acknowledged there3 We were advised that this material was not referred to by Ms Lilo at the hearing and is notconsidered relevant to the appeal.4 R v Lilo, above n 1, at [1].was no direct risk of harm to an individual.5 Judge Sharp adopted a two-year startingpoint saying this reflected "a serious piece of offending".6[10] The Judge then considered factors which reduced the gravity of the offendingfor the purposes of granting a discharge without conviction, saying this allowed "otherpersonal factors to be taken into account".7 In this regard, he noted Dr Lokesh's reportwhich assessed Ms Lilo as at low risk of future offending. He also noted Dr Lokesh'sopinion that Ms Lilo's medical state impacted on her ability to appreciate the outcomeof her actions and the degree of planning and predetermination that she would havebeen capable of at the time.8[11] The Judge also said the gravity of the offending was reduced by Ms Lilo's lackof previous convictions and her good character as evident from the material from herwhānau and others supporting her.9 He noted she was 24 at the time of offending,which would not ordinarily qualify her for a youth discount, but may in part haveaccounted for her coming under the influence of the primary offender.10 Overall, inlight of all these factors, Judge Sharp assessed the gravity of the offending as ofmedium or moderate seriousness.11[12] The Judge then turned to the probable consequences of a conviction and notedthese included the loss of a clean criminal record and the stigma of a conviction whichcould affect an individual's wellbeing, along with the potential publicity which wouldfollow conviction.12 He noted that in applying for insurance or loans, such convictionsoften must be disclosed and could make obtaining those types of services moredifficult.13 He also noted that a conviction of this nature is a barrier to employment ina general sense. Ms Lilo had lost her job during the first COVID-19 lockdown periodand although she was "able to provide good skills" to an employer, her job prospects5 At [10].6 At [19].7 At [15].8 At [16].9 At [17].10 At [18].11 At [19] and [21].12 At [21].13 At [22].would "suffer a serious setback if she were to be convicted".14 Indeed heacknowledged that "for a young person, [conviction] can cast a long shadow over theirfuture", notwithstanding the presence of family support.15[13] He then turned to whether the actual and potential consequences of convictionwould wholly outweigh the gravity of offending in this case. He acknowledged thecase was "difficult", but came to the conclusion that this was not a case where that testwas met.16 However, he did consider that a largely rehabilitative sentence wasappropriate. He sentenced Ms Lilo to 12 months' intensive supervision, including arequirement that she attend an assessment for a drug and alcohol programme andcomplete such counselling treatment or programme as was recommended, and arequirement she attend a psychological assessment and complete any treatment orcounselling as recommended by that assessment. She was also sentenced to 100 hours'community work.17Legal principlesApproach on appeal[14] If a discharge without conviction should have been granted, then there willhave been a material error by the sentencing Judge,18 or a miscarriage of justice willhave occurred "for any reason",19 and the appeal against conviction must be allowed.20Discharge without conviction[15] The court may grant a discharge without conviction under s 106 of theSentencing Act 2002 only if it is satisfied that the direct and indirect consequences ofa conviction would be out of all proportion to the gravity of the offence.21 This Court14 At [23].15 At [24].16 At [26].17 At [27]–[28].18 Criminal Procedure Act 2011, s 232(2)(b).19 Section 232(2)(c).20 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].21 Sentencing Act 2002, s 107.has outlined the approach to determine an application for a discharge without aconviction:22(a) consider all the aggravating and mitigating factors relevant to theoffending and the offender;(b) identify the direct and indirect consequences of a conviction for theoffender;(c) consider whether those consequences are out of all proportion to thegravity of the offence; and(d) consider whether the court should exercise its discretion to grant adischarge.[16] The phrase "out of all proportion" has been described as "an imprecise butexacting standard",23 and in R v Smyth, it was explained that "[s]ignificantly more"was required than that the consequences of a conviction outweighed the gravity of theoffending.24Appellant's submissions[17] Mr de Groot, for Ms Lilo, submits the gravity of the offending was relativelylow having regard to all mitigating factors, and the Judge was wrong to conclude thatthe mitigating factors only reduced the overall gravity to medium or moderate. Indiscussing the gravity of the offending, Mr de Groot emphasised Ms Lilo's limitedinvolvement in the arson itself, saying her real misconduct was driving Mr Fuasino tothe site. He also said the Judge overstated the potential risk to firefighters and to thepublic.[18] In terms of mitigating factors, he particularly stressed Ms Lilo's emergingmental health issues which likely impaired her judgement. She was a vulnerable22 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].23 Linterman v Police [2013] NZHC 891 at [17].24 R v Smyth [2017] NZCA 530 at [12].person who became caught up, albeit in a limited way, with a single instance ofoffending committed by a serial arsonist.[19] Mr de Groot notes the class of offence for which a s 106 order can be grantedis not closed. The discretion under s 106 is only fettered by the statutory criteria ins 107. In Moyes v Police, a discharge without conviction was granted, on appeal, in acase of arson.25 In that case the arson arose in the context of an acrimoniousseparation, where the appellant set fire to his wife's clothing. The appellant paid$15,000 in reparation, expressed immediate shame for what he had done and therewere real risks to his continued employment as an architect for Auckland InternationalAirport Ltd because it could lead to revocation of Mr Moyes' security clearance.[20] In Mr de Groot's submission, Ms Lilo should likewise receive a dischargewithout conviction. The gravity of the offending is relatively low (and the Crown, atsentencing, conceded the gravity was low to moderate). The entry of a conviction andthe associated stigma would have significant consequences for Ms Lilo's future. Herability to earn a living could be derailed and her mental health compromised if aconviction was entered.[21] For all these reasons, it was submitted that a discharge without convictionshould have been granted.Submissions for the respondent[22] Ms Pridgeon, for the respondent, submits that the District Court Judge wascorrect to categorise the offending as "moderately" serious overall, taking into accountthe relevant features of the offending and the appellant's personal circumstances. Therespondent notes the Court of Appeal's observation in R v Gilchrist that arson "isalways serious",26 and says the Judge correctly identified the aggravating features ofthe offending. Indeed, in light of decided case law, the Judge's starting point of twoyears' imprisonment was generous, and could well have been higher.2725 Moyes v Police [2018] NZHC 582.26 R v Gilchrist CA429/90, 15 April 1991 at 3.27 See R v Walker [2017] NZHC 2303; R v Price DC Christchurch CRI-2009-009-15884, 7 May2010; and Stone v R [2016] NZHC 1289.[23] The respondent submits that the Judge appropriately acknowledged andcredited the appellant for her early guilty plea, lack of previous convictions, prior goodcharacter, strong whānau support, rehabilitative prospects and low risk of furtheroffending. He also found the gravity of her offending was reduced by her relativeyouth, notwithstanding that she was 24 at the time of the offending.28[24] The respondent also submits there is no clear causal nexus between theappellant's mental health issues and her offending. In particular, there did not appearto be any evidence of major psychotic illness around the time of the offending,although this was difficult to rule out. However, on Ms Lilo's own account, she wassignificantly intoxicated by cannabis use at the time of the offending but was notexperiencing any psychotic symptoms.[25] The respondent submits that the Judge correctly identified and weighed the realand appreciable consequences of a conviction for the offending being:(a) the loss of a clean criminal record;(b) the likely stigma of a conviction, particularly where the media took aninterest in the case;(c) the likely impact of a conviction on Ms Lilo's mental wellbeing;(d) the fact that service providers such as insurers or loan providersroutinely require disclosure of previous convictions and that can makeobtaining these services more difficult; and(e) prejudice to the appellant's future employment prospects, particularlynoting the appellant was at the beginning of her employment career andwas currently unemployed.[26] As the respondent notes, Ms Lilo does not appear to impugn the Judge'sassessment of the consequences of conviction, but rather, submits that the balancing28 R v Lilo, above n 1, at [18].exercise is tipped in favour of a discharge when the gravity of the offending is properlyassessed.[27] In the respondent's submission the consequences, when weighed against theseriousness of this offending, including the damage caused and Ms Lilo's premeditatedrole in it, are not so disproportionate as to engage the threshold jurisdiction for adischarge without conviction to be considered.Discussion[28] Judge Sharp categorised the offending as "moderately" serious overall takinginto account the relevant features of the offending and Ms Lilo's personalcircumstances. We are satisfied the Judge considered all the relevant factors whendetermining the gravity of the offending. While he acknowledged the inherentseriousness of arson offending, he nevertheless looked at the specific circumstancesof the case. We do not consider, as Mr de Groot suggests, that he misunderstood theextent of Ms Lilo's role. The Judge had clearly read the summary of facts and reliedon it in sentencing. He correctly identified that Ms Lilo's co-offender used a tool toforce open the electrical box to light the fire and referred to the summary of facts.[29] In our view, this was not an impulsive act, but one which Ms Lilo committedto and supported in advance. She also sent text messages to her co-offender afterwardsin which she took pleasure in their success, and the publicity it received. Perhaps theonly matter on which we differ from the Judge is on his conclusion that there was apotential risk to members of the public and fire fighters. As we understand it, the firewas localised, the fire was readily extinguished and there was no such risk to thosepeople in this case. However, this makes little material difference to the seriousnessof the offending overall.[30] The Judge was also fully aware of Dr Lokesh's report and the possibility thatMs Lilo's judgement was impaired by mental health issues at the time of the offending.[31] That report noted Ms Lilo was significantly intoxicated with cannabis at thetime of the offending and potentially had a substance induced psychotic disorder,which is currently in remission. She also had characteristics of bi-polar affectivedisorder and potentially emerging schizophrenic episodes. However, Dr Lokeshconcluded there was no evidence of a major psychotic illness. Around the time of theoffending there were some ongoing salient features which indicate Ms Lilo wassuggestible and unable to appreciate the nature of the offending. However, the primaryaim of the report appeared to be focused on avoiding a sentence of imprisonment.Dr Lokesh considered Ms Lilo would be better served by "[s]upervised treatmentwithin the community" which could assist her to "integrate and become a fullyfunctioned citizen".[32] We are also satisfied that the Judge took into account all the personal mitigatingfactors including her guilty plea,29 her relative youth,30 her good character andprospects for rehabilitation,31 and her low offending risk.32[33] Overall, we consider the Judge's conclusion that this was a matter of "mediumseriousness or moderate seriousness in terms of its overall effect",33 was correct.[34] In assessing the consequences of the offending the appellant's submissions didnot identify any omission in the Judge's consideration. The appellant's submissionsfocused on the:(a) indirect consequence of prejudice to Ms Lilo's future employmentprospects; and(b) direct consequence of the entry of a conviction and the associatedstigma.[35] The Judge took these into account and considered they were "ofsignificance".34 We accept that all convictions have some adverse impact onemployment prospects but, as Duffy J said in Blay v Police, that is a consequence29 R v Lilo, above n 1, at [4].30 At [18].31 At [17].32 At [16].33 At [19].34 At [26].which fulfils the deterrence function of convictions.35 This Court in R v Taulapapanoted:36Conviction carries a social stigma which the law sustains by recording andpublishing convictions. It may affect a person's career, but that consequencemust normally yield to the employer's right to know.[36] In our view, the consequences of the offending are largely those that flownaturally from a conviction of this nature, and while they will be burdensome toMs Lilo, do not reach the high threshold of being "out of all proportion to the gravityof the offence".37 While we acknowledge Ms Lilo's emerging mental health issues,and her difficulties with heavy cannabis use, Dr Lokesh saw these best addressed by arehabilitative sentence and this was reflected in the sentence imposed by the Judge.[37] While conviction for arson is, on its face, an impediment to Ms Lilo'semployment prospects, the lenient sentence will signal to an employer the low levelof offending. It is an impediment which will diminish over time, including as aconsequence of the Criminal Records (Clean Slate) Act 2004 provisions if Ms Liloremains offence free.[38] We accept the consequences of conviction are significant for Ms Lilo, but theyare not so disproportionate to the gravity of the offending that a discharge withoutconviction should be granted.[39] Accordingly, the appeal is dismissed.Result[40] The appeal against conviction and sentence is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent35 Blay v Police [2014] NZHC 2923 at [49].36 R v Taulapapa [2018] NZCA 414 at [42(a)] (footnote omitted).37 Sentencing Act, s 107.