Alapati v Police - [2020] NZHC 614

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-0003

[2020] NZHC 614

BETWEEN
FOU ALAPATI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 March 2020

Appearances:

D J Ratima for Appellant

L J Sullivan for Respondent

Judgment:

24 March 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 24 March 2020 at 11.00 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Counsel: D J Ratima, Auckland

ALAPATI v POLICE [2020] NZHC 614 [24 March 2020]

[1] The appellant, Mr Alapati, appeals against a decision of Judge Earwaker declining Mr Alapati’s application for a discharge without conviction on one charge each of strangulation, assault with intent to injure, and wilful damage. The Judge convicted Mr Alapati and sentenced him to five months’ community detention and 12 months’ supervision.1

[2] The appeal proceeds as an appeal against both conviction and sentence.2 The appellate Court must be persuaded the Court below was wrong, but it reaches its decision on its own view of the merits.3

Background

[3] At the time of the offending, Mr Alapati and his partner, to whom I shall refer as C, had been living together for about two years. The offending occurred in mid-December 2018. Mr Alapati had been to a Christmas party and his partner, suspecting he might be becoming romantically involved with someone else, asked him why he was deleting text messages from his cellphone. The Judge described events thereafter as follows:

[5] The argument on this occasion, December 2018, escalated and she told you to get out of the house. You refused to get out of the house and you pushed the victim up against a wall and attempted to punch her in her face multiple times. You actually missed on that occasion and she managed to get away. You then pinned her to the bed and punched her multiple times in the head. You then placed both your hands around her neck area and applied pressure with your hands, causing her to struggle to breathe. As this was happening, the victim’s niece entered the room and yelled at you, telling you to get off the victim. You ignored this and proceeded to grab the victim by the hair with both of your hands, and pulled her towards your left side. As you held her by the hair with your left hand, you punched her about four times in the stomach area with your right hand. As I say, that is an aggravating factor, given she was pregnant at the time.

[6] After you punched her, you let her go and covered yourself up with a blanket. The victim’s niece then grabbed her and they both left the room together. She then took the keys and left the address. A short time later, you took the victim’s cellphone to the back of the house and threw it against…

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.

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Details

Case: [2020] NZHC 614
Decision Date: 24 March 2020

CaseChat Overview and Summary

Mr Alapati appeals against the decision of the District Court judge to decline his application for a discharge without conviction on charges of strangulation, assault with intent to injure, and wilful damage. The judge convicted Mr Alapati and sentenced him to five months' community detention and 12 months' supervision. The appeal proceeds as an appeal against both conviction and sentence. The court must be persuaded that the Court below was wrong, but it reaches its decision on its own view of the merits. Mr Alapati and his partner had been living together for about two years when the offending occurred in mid-December 2018. The offending included Mr Alapati punching his partner multiple times in the head and applying pressure with his hands around her neck, causing her to struggle to breathe. The appellant also threw his partner's cellphone against the shed, causing it to smash. The judge considered the gravity of the offending and the likely direct and indirect consequences of a conviction, and assessed whether the latter were out of all proportion to the former. The judge declined to grant a discharge without conviction, considering the loss of employment to be a consequence not out of all proportion to the gravity of the offending. The court dismissed the appeal.

Orders