IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-419-97 [2024] NZHC 2914
BETWEEN DANIEL FRANSICO TANIELU
Appellant
AND
THE KING
Respondent
Hearing: 2 October 2024 Appearances:
M James for the Appellant
A Penney for the Respondent
Judgment:
8 October 2024
JUDGMENT OF GORDON J
This judgment was delivered by me on 8 October 2024 at 3.30 pm
Registrar/Deputy Registrar Date:
Solicitors/Counsel: Hamilton Legal, Hamilton
M James, Barrister, Hamilton
TANIELU v R [2024] NZHC 2914 [8 October 2024]
Introduction
[1] The appellant, Daniel Fransico Tanielu, pleaded guilty to a charge of indecent assault on a person over 16.1 His application to be discharged without conviction was declined by Judge R G Marshall in the District Court at Hamilton.2 He now appeals that decision.
Background
[2] On 15 December 2023 at approximately 11.12 pm, Mr Tanielu and the victim were both outside The Bank on Victoria Street, Hamilton.
[3] Mr Tanielu and his friend were sitting behind the victim who was carrying out his duties as a Police officer.
[4] Mr Tanielu reached out with his left arm and used his finger to poke the anus area of the victim.
District Court decision
[5] Judge Marshall first referred to s 107 of the Sentencing Act 2002 (Act) which sets out the threshold test that must be met before the discretion under s 106 can be exercised. The Judge then referred to the Court of Appeal’s three-stage approach set out in Z v R:3
(a)First, the Court must consider the gravity of the offending which includes all the aggravating and mitigating factors relating not only to the offending but also to the offender.
(b)The Court, as the second step, should then identify the direct and indirect consequences of a conviction for the offender.
1 Crimes Act 1961, s 135. Maximum penalty: seven years’ imprisonment.
2 Police v Tanielu [2024] NZDC 18379.
(c)Thirdly, consider whether those consequences are out of all proportion to the gravity of the offence.
[6] The Judge noted that if the Court considers the consequences to be out of all proportion, it must consider whether it should exercise its residual discretion to grant a discharge.
[7] In relation to the aggravating and mitigating factors, the Judge set out the submissions made by the Police about the impact of the offending on the victim. It was noted that the victim was left feeling violated, has trouble trusting people he does not know that are behind him, and it has affected his head space at work. The Judge considered a further aggravating feature of the offending to be the fact that the victim was acting in the course of his duties as a Police officer at the time of the offending. The Judge considered there to be no mitigating factors, particularly where intoxication was involved. The Judge also noted the Police’s acknowledgement of an early guilty plea, the lack of any previous convictions and…
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- Case
- [2024] NZHC 2914
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the District Court had erred in assessing the gravity of the offence and the consequences of a conviction, and whether these consequences were disproportionate to the offence's gravity, justifying a discharge without conviction. The appellant's counsel argued the offence was low in seriousness due to its spontaneous nature, lack of sexual motivation, and the appellant's remorse and efforts to address alcohol use. They also submitted the consequences of the conviction, particularly the loss of employment, were significant and disproportionate.
The court found that the District Court had overstated the gravity of the offence by not adequately considering mitigating factors such as the appellant's lack of criminal history, remorse, and efforts to address alcohol use. The court also noted the significant consequences of the conviction, including the loss of employment, which it found to be disproportionate to the low seriousness of the offence. Consequently, the court allowed the appeal, quashed the conviction, and discharged the appellant without conviction.
The final orders were that the appeal was allowed, the conviction was quashed, and Mr Tanielu was discharged without conviction under s 106 of the Sentencing Act 2002.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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