Alapati v Police
[2020] NZHC 614
•24 March 2020
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 the shed, causing it to smash. As a result of the incident, the victim sustained bruising to her forehead. She had bruising to the left and right side of her
1 Police v Alapati [2019] NZDC 26356.
2 Ovtcharenko v Police [2017] NZCA 65.
3 R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at [35]–[36].
head, scratch marks on her shoulder and abrasions to her body. That was the background to the offending.
Applicable law
[4] A judge may grant a discharge without conviction if the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.4 In determining whether the consequences would be so disproportionate, the Judge must assess the gravity of the offending having regard to the aggravating and mitigating factors of the offending and offender; identify the likely direct and indirect consequences of a conviction; and then assess whether the latter are out of all proportion to the former.5
November/December 2019
[5] Mr Alapati appeared before the Court in relation to these charges on several occasions. At the outset of his sentencing note on 12 December 2019, the Judge recorded that he had advised Mr Alapati, at an appearance on 20 November 2019, that the Judge would not be willing to grant a discharge without conviction.6 This is relevant to a matter I come to below regarding Mr Alapati’s employment. As it turned out, it was not possible for the Judge to sentence Mr Alapati on 20 November 2019 and the Judge remanded Mr Alapati for sentencing in December 2019 and it is the December note which sets out the Judge’s reasons for declining the discharge without conviction.
District Court decision
[6] In assessing the gravity of the offending, the Judge had regard to Mr Alapati’s attacks to C’s head; her pregnancy; the abuse of trust inherent in offending in a domestic relationship; Mr Alapati’s continued assaults despite the presence of the niece; and C’s injuries.
[7] Equally, Mr Alapati had undertaken extensive rehabilitation by way of a men’s development programme, counselling with Community Alcohol and Drug Services,
4 Sentencing Act 2002, ss 106 and 107.
5 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
6 Police v Alapati, above n 1, at [2].
an anger management course, and a parenting programme, and the couple were having relationship counselling. Mr Alapati has no prior convictions and, by the time the Judge considered the application (although not before), C was supportive of the discharge and was pregnant again. Corrections’ pre-sentence reports were also favourable to Mr Alapati.
[8] The Judge considered these significant and very worthwhile steps by Mr Alapati reduced the gravity of the offending from “serious” to “moderate to serious”.7
[9] The next issue for the Judge was to identify the consequences of conviction and, if any, whether these would be out of all proportion to the gravity of the offending.
[10] The consequence relied upon was Mr Alapati’s loss of employment, and in respect of a position he had held since 2013. For reasons addressed below, the Judge was not persuaded that the loss of employment, and likely difficulty in obtaining subsequent employment, would be out of all proportion to the gravity of the offending. Accordingly, the Judge declined to discharge Mr Alapati.
Submissions
[11] In her written submissions, counsel for Mr Alapati, Ms Ratima, contends the Judge made two errors in his judgment.
[12] In her oral submissions, Ms Ratima added a third, namely that the Judge erred in assessing the gravity of the offending as moderate to serious, as it should have been “low to moderate”. I do not accept this submission. As Crown counsel, Ms Sullivan, submitted, this was serious and dangerous offending. As Ms Sullivan also submitted, Mr Alapati’s substantial rehabilitative efforts reduced the offending to moderate severity which, realistically, was the best possible outcome achievable.
[13] Coming back to Ms Ratima’s written submissions, the first error relied upon is immaterial, in that the Judge assumed C’s niece was a teenager. Apparently that was
7 Police v Alapati, above n 1, at [13].
incorrect as the niece is the same age as Mr Alapati who is in his late-20s. As I have said, that error was of no consequence.
[14] The second alleged error concerns the Judge’s assessment of matters relating to Mr Alapati’s employment.
[15] At the time of the offending, Mr Alapati was employed as a “core worker” under what was formerly the Vulnerable Children Act 2014, but which is now the Children’s Act 2014. Amongst other things, this role required Mr Alapati to go to schools and engage with students.
[16] When Mr Alapati appeared on 20 November 2019, the Judge had before him a letter from Mr Alapati’s manager dated 15 October 2019, and which I understand was written at the Judge’s request. This letter was to the effect Mr Alapati was highly regarded; had achieved good results with those with whom he worked, including the children at the various schools; the employer had redeployed Mr Alapati to a non- contact role pending the Court’s determination of matters relating to the charges; the employer could not afford to retain Mr Alapati in this non-contact role and needed to make a decision as to whether or not Mr Alapati’s employment should be terminated; and, if Mr Alapati were convicted, the employer would be terminating his contract immediately. As Ms Sullivan submitted on appeal, the offences committed by Mr Alapati were not such as to automatically preclude him from continuing as a core worker, at least not under the legislation, but this point is not addressed in the letter.
[17] Given the content of the letter, the Judge accepted that Mr Alapati would lose his position if convicted. However, the Judge was not satisfied this consequence, or any future difficulty convictions would cause vis-à-vis employment, would be out of all proportion to the gravity of the offending.
[18] Having received that indication from the Judge on 20 November 2019, ie that no discharge would be forthcoming, Mr Alapati resigned his employment. Accordingly, the consequence of loss of employment has already been suffered, some five months ago.
[19] Before me, Ms Ratima focused on a particular aspect of the Judge’s decision, namely his questioning of why the employer would terminate only if Mr Alapati were convicted, given it knew the circumstances of the offending. Ms Ratima submitted it is not for the Court to criticise an employer, particularly one who writes a letter at the Court’s request. Ms Ratima also submitted the Judge’s remarks indicated he had been overly influenced by the (highly critical) submissions of the prosecutor. I take both of Ms Ratima’s points, and note particularly that the language the prosecutor used in his or her submissions lacked objectivity and would be best avoided in the future.
[20] The critical point on appeal, however, is whether the loss of employment would be a consequence out of all proportion to the gravity of the offending. The Judge determined it would not and I agree with him.
Result
[21]I dismiss this appeal.
Peters J
0