TELEA v NEW ZEALAND POLICE [2020] NZHC 3284

TELEA v NEW ZEALAND POLICE [2020] NZHC 3284 [11 December 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-84[2020] NZHC 3284BETWEEN ROPATI LUI TELEAAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2020Counsel: N Levy QC for AppellantA C Jeffares for RespondentJudgment: 11 December 2020JUDGMENT OF ELLIS J[1] Between September 2005 and February 2011 Mr Telea worked at the TransportAccident and Investigation Commission (TAIC). For the last four of these years hetransferred some $284,381 of TAIC's funds into bank accounts in his own name or inother entities associated with him. I put on record at the outset of this judgment theadvice recently received from TAIC's chief executive (both at that time and now) that:[Mr Telea's] activities while working at TAIC have left an indelible mark onthe organisation and its employees. One employee lost their job because ofhis activities, through no fault of their own but was nonetheless held to accountfor perceived lack of oversight.The residual damage in loss of trust and confidence has been immense. Thescale of the fraud was overwhelming for such a small state sector organisationwhere funding is hard fought for.[2] I have no doubt that all of that is true.[3] When Mr Telea's fraud was uncovered, he was charged with two representativecharges of dishonestly using a document.1 He pleaded guilty to those charges.[4] At sentencing, a reparation report was before the Court. With the assistance ofhis family, Mr Telea offered a lump sum payment of $10,000 and then furtherreparation of $100 per week. The District Court Judge noted that TAIC did not acceptthat offer and that consideration was being given to pursuing civil remedies againstMr Telea. She noted that the offer to make reparation was "a significant factor to beconsidered" when it came to sentence.[5] The Judge noted that she could only order reparation at a rate that Mr Teleacould actually afford. On the basis of the reparation report she made an order forreparation of $10,000 as a lump sum payment with "the balance" to be paid byinstalments of $100 per week. The Judge did not impose any end date for therepayments but said that the payments would be kept under review and could beincreased if and when Mr Telea was able to pay a larger amount and "if there are anyassets which are available to be sold when they exceed the value of the liabilities onthem though that sale can then be considered." The Judge additionally sentencedMr Telea to:2(a) Home detention for a period of 10 months; and(b) 300 hours of community work.[6] Mr Telea paid the lump sum as directed and has now been making weeklyreparation payments for almost nine years. He has therefore paid reparation to TAICof around $51,000. If he were to be required to continue making payments at theprevious weekly rate it would take him a further 45 years, by which time Mr Telea willbe in his 80s.3 He now lives in Australia, and has a young family there.[7] In March this year, due to COVID-19, Mr Telea contacted the Collections Unitat the District Court and obtained agreement that he could temporarily stop making1 The charges carried a maximum penalty of seven years' imprisonment.2 Police v Telea DC Wellington CRI-2011-085-003452, 9 November 2011.3 He was 27 at the time of sentencing.the payments. It seems clear that his financial circumstances have deteriorated. Hesays he is no longer able to afford them and that the ongoing obligation has becomeoppressive. He has deposed:6. ... I have been paying the $100 per week instalments forapproximately nine years. I have consistently paid the reparationdespite periods of financial hardship, including when I was onminimum wage during my carpentry apprenticeship.7. I have also married, have two young children, with one on the way, andrelocated to Australia. Since living in Australia I completed a carpentryapprenticeship and had been working full time.8. I am now a casual employee and cannot rely on a consistent income.Prior to COVID-19, I was able to do extra work as a musician but sinceMarch 2020 I have not been able to do so. As a result, I have struggledto pay rent and childcare bills.9. I have insufficient means to pay for the total value of the loss and theweekly reparation payments are increasingly financially straining on myfamily.[8] Had Mr Telea been sentenced after 1 August 2012, he would simply have beenable to apply to the District Court under s 38A of the Sentencing Act 2002 to have hisreparation sentence cancelled on the ground that it has become unaffordable. Uponthe making of such an application the Court may cancel the reparation order and (ifappropriate) substitute any other sentence that could have been imposed at the time ofthe original sentencing.[9] Instead, however, Mr Telea is required to appeal against his sentence out oftime. Leave to extend time for appealing was not opposed and was granted bySimon France J on 12 November.[10] There is no dispute that an order of reparation was rightly made in Mr Telea'scase. But the Crown now essentially agrees that the order in its current form is creatingundue hardship and should be cancelled. Although I agree with Mr Jeffares that theJudge clearly intended the reparation paid to be substantial, the order appears to havebeen made on the assumption that Mr Telea's financial position would improve overtime and that he might be able to make more meaningful reparation, more quickly. Itis evident that that assumption has proved incorrect. And it seems clear that if thepresent order were to be maintained it would be inconsistent with the recent authoritieswhich have held that undue hardship will be caused if a reparation order requires apayment for a period of more than five years.4 The authorities prevailing at the timeof Mr Telea's sentencing suggested that the undue hardship threshold fell at aroundthe eight year mark.5[11] In light of the agreement between the parties the only remaining question iswhether some further sentence should be imposed. Ultimately, there was no realsuggestion that it should be. Notwithstanding the very real harm caused by Mr Telea'soffending he has long since served the remainder of his sentence and has been whollycompliant with the reparation order for nine years, which is a longer period than couldnow be justified. Moreover, the Court is faced with the reality that Mr Telea no longerlives in New Zealand which makes any substituted sentence highly problematic.[12] For the reasons given above, the appeal is allowed. The sentence of reparationis cancelled. The amount of reparation outstanding is deemed to be remitted from thedate on which Mr Telea ceased making payments, earlier this year._____________________Rebecca Ellis JSolicitors:Crown Solicitor, Wellington for Respondent4 Under s 12(2) of the Sentencing Act 2002, a reparation order may not be imposed if it would resultin undue hardship for the defendant or his dependants. And see the survey of "undue hardship"cases conducted by Woodhouse J in Guinness v Police [2015] NZHC 883.5 See, for example, R v Vaillily CA251/04, 10 November 2004.