DANIEL FRANSICO TANIELU AND THE KING - [2024] NZHC 2914

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.
3      Z v R [2012] NZCA 607.

(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…

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.

Keep reading for free

Create a free CaseChat account to read DANIEL FRANSICO TANIELU AND THE KING and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 2914
Decision Date: 8 October 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Fransico Tanielu appealed against the District Court's decision to deny his application for discharge without conviction after he pleaded guilty to indecent assault. The District Court had found the offence moderately serious, noting the victim was a police officer on duty and the act was degrading and humiliating. The court also considered the consequences of the conviction on the appellant's employment, finding them not disproportionate to the gravity of the offence.

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