Appeal Court convicts and fines unlawful rifles importer [1]
Thursday, April 20, 2023 - 18:38. Updated on Thursday, April 20, 2023 - 18:38.
Ma‘ili Finau (35) was re-sentenced and convicted on two counts, including the unlawful importation of two .22 rifles from New Zealand to Vava'u, after the Appeal Court quashed a Supreme Court sentence that discharged him without conviction.
The Appeal Court in a judgment on 6 April convicted Finau on both counts and fined him $400 on count one and $300 for the second count. The rifles were forfeited to the Crown.
Finau had initially pleaded pleaded guilty to two counts: unlawful importation of the restricted goods, and not declaring the rifles to Customs.
He was then sentenced on 14 October 2022 at the Supreme Court, when the sentencing judge exercised his power under s.204 of the Criminal Offences Act to discharge him without conviction, and ordered him to pay $200 in costs.
This resulted in the Crown appealing against the Supreme Court's sentencing on the grounds that the judge erred in law, when he discharged Finau without conviction, and stated reasons why.
The offending was that on 10 June 2019 a cargo box with Finau's name arrived in Vava'u on the sea vessel Imua II.
“A few days later on 13 June, Finau attended to have the cargo cleared and released to him. When asked by a Customs officer if he had restricted cargo, he said he did not, and went further to state that his cargo did not contain a gun. That was untrue as the cargo contained two .22 rifles. On 5 August 2019, he was arrested and taken to the police station,” stated the Court.
He cooperated with police and admitted his offending.
The Appeal Court stated in their view and on reasons given on a 13-pages written judgment found that the sentencing judge fell into error by sentencing on an incorrect factual basis.
"It therefore falls to this Court to re-sentence him."
The Appeal Court stated that in Finau's favour are the facts that he has no prior convictions, pleaded guilty at an early stage, cooperated fully thereafter with police, and is remorseful.
“Apart from this incident his work history and personal life were creditable, and there is some reason to conclude that a conviction will have an impact upon the respondent's employment in New Zealand. In his sentencing submissions it was asserted that a conviction would mean the loss of his New Zealand job because of the alteration in his immigration status.
“Further, it was said that his ability to travel overseas would be affected, thus impacting on his career. However, no proof of those matters was offered. It remained as mere assertion short of acceptable proof.
“There was also no finding by the learned sentencing judge that a conviction would have the suggested impact on him. Otherwise, the consequences of recording a conviction will have the same consequences on the respondent as it does on all offenders. There is nothing particular to warrant special treatment,” stated the Appeal Court.
"In our view, it cannot be concluded that the consequences of recording a conviction out of all proportion to gravity of the offending. In the circumstances, s.204 of the Criminal Offences Act is not engaged.
“Taking into account all of the above matters it is our view that a conviction should be recorded in respect of each count, and a fine imposed. The fines should be at the lower end of penalty range to recognise the respondent's mitigating factors, including the lack of impact on the public of the importation of the rifles."
Finau was then convicted and fined.