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Cabuyao v The Queen

Cabuyao v The Queen

Case [2021] NZHC 3395 10 December 2021

Aggravated & Exemplary Damages

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-000040

[2021] NZHC 3395

BETWEEN
ADRIAN CASTILLO CABUYAO

Appellant

AND

THE QUEEN

Respondent

Hearing: 7 December 2021

Appearances:

A Pinnock for Appellant

C J Bernhardt for Respondent

Judgment:

10 December 2021

JUDGMENT OF EATON J

This judgment was delivered by me on at pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CABUYAO v R [2021] NZHC 3395 [10 December 2021]

Introduction

[1] Adrian Cabuyao pleaded guilty to a charge of indecent assault and was sentenced by Judge Robinson to community work, supervision and ordered to pay reparation.1 The Judge declined to grant a discharge without conviction. Mr Cabuyao appeals against that decision principally because he says a consequence of conviction is that he will face the prospect of deportation to the Philippines.2

Background

[2] Mr Cabuyao is a 41-year-old male from the Philippines and is currently in New Zealand on a working visa. The victim, aged 32, is known to Mr Cabuyao as they are both part of a small Filipino community in the Cromwell area. Mr Cabuyao and the victim’s husband were close friends prior to the offending.

[3] The offending occurred on 13 June 2020 when Mr Cabuyao was at a birthday party held at the victim’s home. The victim, her husband and flatmates were also present. Large quantities of alcohol were consumed throughout the evening.

[4] At around 10.30 pm the victim was walked to her bedroom by her husband. He returned to the party. She lay on the bed on her stomach trying to sleep. Mr Cabuyao entered her bedroom. He touched her on the abdomen, causing her to awaken. He then pulled down her pyjama pants with his right hand, while using his left hand to reach under her and touch her vagina through her clothing for approximately five seconds. This caused the victim to fully awaken. She rolled over and kicked Mr Cabuyao in the stomach which propelled him backwards. He said “I’m sorry… I’m sorry”.

[5] The victim went to the kitchen where she stared angrily at Mr Cabuyao, causing others in the vicinity to ask her what was wrong. The victim saw Mr Cabuyao

1 R v Cabuyao [2021] NZDC 18960.
2 The appeal is properly characterised as an appeal against conviction and sentence however the appellant does not challenge the sentence imposed in the event the appeal against conviction is not upheld.

put his finger to his mouth and gesture for her to keep quiet.3 He then sat down, closed his eyes and pretended to be asleep.

[6] The victim proceeded to punch Mr Cabuyao twice. He was also struck in the head by a pot which was wielded by the victim’s husband. Mr Cabuyao again repeated “I’m so sorry… I didn’t mean to. Kill me now. Kill me now.” He continued to apologise.

[7] Mr Cabuyao suffered a wound to his head and burns to his shoulder. He told…

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 Cabuyao v The Queen

Details

AGLC: Cabuyao v The Queen [2021] NZHC 3395
Case: [2021] NZHC 3395
Decision Date: 10 December 2021

CaseChat Overview and Summary

Adrian Castillo Cabuyao pleaded guilty to indecent assault and was sentenced to community work, supervision, and ordered to pay reparation. The District Court declined to grant a discharge without conviction, a decision Mr Cabuyao appeals on the grounds that the consequence of conviction is a real risk of deportation to the Philippines. The appeal raises questions about the legal test for granting a discharge without conviction under s 106 of the Sentencing Act 2002, and whether the consequences of conviction are out of all proportion to the gravity of the offending.

In Cabuyao v R, Eaton J dismissed the appeal. The judge held that while deportation would have very real consequences for Mr Cabuyao and those who depend on his employment, the risk of deportation arose as a consequence of the offending and not the conviction. The court found that the offending was moderate to high in seriousness, and the consequences of conviction were not wholly disproportionate to the gravity of the offence. Eaton J held that the court should not shut the door on discharges in immigration cases, but the cases allowing discharges tended to involve lower level offending. This case did not. The appeal was dismissed.

No orders were made as the appeal was dismissed.

Orders