Afele v Police - [2014] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000136 [2014] NZHC 1186

BETWEEN
TAMALII AFELE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 May 2014

Appearances:

E Te Whata and V Withy for Appellant
A Pollett for Respondent

Judgment:

30 May 2014

(ORAL) JUDGMENT OF ANDREWS J [Appeal against refusal to grant bail]

AFELE v NEW ZEALAND POLICE [2014] NZHC 1186 [30 May 2014]

Introduction

[1] The appellant was convicted after a jury trial in the District Court at Manukau on 5 May 2014 on a charge of sexual violation by unlawful sexual connection. He has appealed against the refusal of the presiding Judge, Judge Taumaunu, to allow him bail pending his sentencing on 15 August 2014.

District Court decision

[2] The Judge noted that under the Bail Act there is a presumption in favour of a remand in custody, after conviction, unless it is in the interests of justice to grant bail. One of the important factors to be considered is the likelihood of a custodial sentence being imposed. The Judge recorded the submission for the appellant that there was every possibility of an end sentence being within the two-year threshold for home detention to be considered, and the submission for the Crown that there is a presumption that a term of imprisonment should be imposed for this type of offence.

[3] The Judge also noted that the appellant was 19 at the time of the offending, has no previous convictions, and is otherwise of good character and with an unblemished record. The Judge noted the submission for the appellant that in the circumstances of the offending a custodial sentence was far from inevitable. The Judge did not accept that submission, noting that the jury had by their verdict found that the complainant did not consent to the sexual connection, and that the appellant did not have reasonable grounds to believe she had consented. The Judge concluded that a term of imprisonment was highly likely as an outcome.

[4] The Judge also noted that sentencing could not be completed until August

2014, but concluded that a remand in custody was justified, and that the matters raised on behalf of the appellant did not override the presumption in favour of a remand in custody, and the need for the appellant to be remanded in custody for sentencing.

Appeal submissions

[5] For the appellant, Ms Te Whata submitted that having regard to the particular circumstances of the offending, the appellant’s personal circumstances, and the length of time until sentencing, it is in the interests of justice to grant bail.

[6] Ms Te Whata referred to the appellant’s age, the absence of any previous convictions, his involvement in his local church, and the dependence of his mother on him to help provide for the family. Ms Te Whata noted that since January 2014, the appellant had been working in Masterton.

[7] As to the facts of the offending, Ms Te Whata submitted that the appellant’s defence was that he had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Afele v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 1186
Decision Date: 30 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Tamalii Afele appealed the decision of the District Court judge, Judge Taumaunu, to deny him bail pending sentencing for his conviction on a charge of sexual violation by unlawful sexual connection. The appeal was heard on 30 May 2014, with E Te Whata and V Withy appearing for the appellant and A Pollett for the respondent. The primary issue before the court was whether the District Court judge erred in his discretion when deciding that it was not in the interests of justice to grant bail to the appellant. The court had to consider the likelihood of a custodial sentence being imposed, the appellant's personal circumstances, and the time elapsed before sentencing.

The High Court found that the District Court judge had exercised his discretion appropriately. The judge had considered the presumption in favour of a remand in custody after conviction and the appellant's personal circumstances, including his age, lack of previous convictions, and good character. The court noted that the appellant had an honest belief that the complainant had consented to his touching her, but the jury had rejected this defence. The District Court judge concluded that a term of imprisonment was highly likely as an outcome, and the appellant would be remanded in custody pending sentencing.

The High Court found that the District Court judge had taken all relevant considerations into account, including the appellant's age, good character, and the nature of the offence. The court was satisfied that the District Court judge was not plainly wrong in deciding that it was not in the interests of justice to grant bail to the appellant. The appeal was dismissed, and the appellant would remain in custody pending sentencing.

Orders