Asiata v The Queen - [2019] NZHC 1045

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-9

[2019] NZHC 1045

LOGOVA FAFA ASIATA

v

THE QUEEN

Hearing: 16 April 2019 via AVL

Appearances:

R M Gould for Appellant

C R Walker for Respondent

Judgment:

30 April 2019

Reasons:

14 May 2019

REASONS JUDGMENT OF CLARK J

Introduction

[1] Mr Asiata, the appellant, appeals a sentence of three years eight months imprisonment imposed in the District Court at Napier on 1 March 2019 on one charge of sexual violation by rape.1

1 Crimes Act 1961, ss 128(1)(a) and 128B (maximum penalty: 20 years imprisonment).

ASIATA v R [2019] NZHC 1045 [14 May 2019]

[2] The offending occurred in Napier on 16 July 2005 when the appellant was almost 21. He was charged in 2016 following a DNA match after his arrest for theft and convicted following a two-day Judge alone trial in September 2018.

[3] The principal question on appeal is whether the District Court Judge erred in his application of R v AM, the guideline case for sexual offending.2

[4] The appeal was heard shortly before the Easter break. I indicated to counsel I would provide before the Easter break, at least the result with reasons to follow if necessary. In the event, the appeal was dismissed.3 In this judgment I provide my reasons for having dismissed the appeal.

Background to the offending

[5] The background facts are taken from Judge Rea’s reasons for verdict.4 In sentencing Mr Asiata Judge Rea read from [22]–[24] of his reasons for verdict so that his findings of fact, in relation to the sexual violation itself, would be clear.5

[6] On 16 July 2005 M, the complainant (then aged 15), went to a high school house party in Taradale, Napier. She later left the party with friends and went to a friend’s house in Nelson Crescent. M planned to stay the night at the Nelson Crescent house and had taken an overnight bag with her. There were no adults present and M and her friends (all girls between the ages of 15 and 16) decided to have a party and consume alcohol. The party was cut short when a neighbour noticed the noise and contacted the older sister of one of the girls. The older sister came to the house to shut down the party. Upon the sister’s arrival, the girls scattered in different directions to avoid being caught. M was concerned her parents would be contacted and that she would be punished. She hid in a walk-in-wardrobe. When she was sure no one would catch her she left the property leaving behind her change of clothes, her bag, cell phone and other personal items.

2      R v AM [2010] NZCA 114, [2010] NZLR 750.
3      Asiata v R [2019] NZHC 934.
4      R v Asiata [2018]…

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.

Continue reading Asiata v The Queen

Details

AGLC: Asiata v The Queen [2019] NZHC 1045
Case: [2019] NZHC 1045
Decision Date: 30 April 2019

CaseChat Overview and Summary

Logova Fa'a Fa Asiata appeals against the sentence of three years and eight months imprisonment imposed on him by Judge Rea in the District Court at Napier on 1 March 2019. He was convicted of one charge of sexual violation by rape. The appeal was heard on 16 April 2019 and judgment was delivered on 30 April 2019 with reasons to follow. Asiata contends the District Court Judge erred in his application of the guideline case of R v AM. The appeal was dismissed. The appellant was almost 21 years of age at the time of the offending. He followed the complainant, M, a 15-year-old girl, and raped her. The offending was aggravated by the appellant's persistent interest in M and her extreme vulnerability at the time. The District Court Judge identified a starting point of seven and a half years imprisonment and applied a 40 percent discount for mitigating factors. A further four months reduction in light of the appellant's willingness to pay emotional harm reparation in the sum of $5,200, was calculated to bring the end sentence to a term of three years eight months imprisonment. Asiata submits the starting point should have been four to five years. The appeal court considered the sentencing judge had properly applied the principles set out in R v AM and that the starting point was appropriate. The appeal court found no error in the Judge's approach to the mitigating factors. The appeal was dismissed.

Orders