Gasu v Police - [2021] NZHC 2948

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-386

[2021] NZHC 2948

BETWEEN
SELENI GASU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 November 2021

Appearances:

A Naseri for the Appellant

A Kempster for the Respondent

Judgment:

2 November 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 2 November 2021 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors / Counsel:
Mr A Naseri, Public Defence Service, Henderson, Auckland
Ms A Kempster, Meredith Connell, Office of the Crown Solicitor, Auckland

GASU v NEW ZEALAND POLICE [2021] NZHC 2948 [2 November 2021]

Introduction

[1] Seleni Gasu pleaded guilty to one charge of assault on a person in a family relationship. On 9 August 2021 Judge K J Glubb declined Mr Gasu’s application for a discharge under s 106 of the Sentencing Act 2002.1 Mr Gasu appeals that decision.

Background

[2] The victim was Mr Gasu’s partner. At the time of the offending they had been together for approximately two years. Mr Gasu’s partner had a four year old child from another relationship, and they had a one year old daughter together. At the time of the hearing before Judge Glubb his partner was seven months’ pregnant.

[3] On 1 January 2021 at approximately 11.00 pm the defendant and victim were together at a family gathering. The appellant had been drinking and became intoxicated. The appellant’s partner took exception to him dancing with another female family member and slapped him once to the face and then walked away. Mr Gasu then followed his partner into the garage of the address and slapped her forcefully to the face with an open palm, causing her nose to bleed. After a brief pause he then slapped her three further times about the head. She raised her hands to protect herself. Mr Gasu stopped when other family members at the address intervened and physically removed him.

[4] As a result of the assault Mr Gasu’s partner received swelling to her left temple area, bruising to her left hand where she had attempted to shield herself, a cut upper lip and a sore neck. She felt dizzy and was unsteady and an ambulance was called due to those concerns.

[5] In explanation Mr Gasu stated he punched her twice because he was angry that she had slapped him.

[6]Mr Gasu has not previously appeared before the Court.

1 Police v Gasu [2021] NZDC 16319.

The District Court decision

[7] Judge Glubb considered the domestic setting was an aggravating factor. Mr Gasu’s partner was vulnerable and should have been safe in his company. However, he noted that, in her victim impact statement, she had said that being separated from him as a result of the incident had caused her stress and hardship and that she supported his application for a discharge without conviction. She did not seek a protection order.

[8] The Judge considered the offending…

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.

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Details

Case: [2021] NZHC 2948
Decision Date: 2 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Seleni Gasu appealed against the decision of Judge K J Glubb, who had declined his application for a discharge without conviction following a guilty plea to a charge of assault on a person in a family relationship. Gasu was unlawfully in New Zealand and had previously applied for a visa in the Minister's discretion under s 61 of the Immigration Act 2009, but that application had been declined. Gasu argued that the consequences of conviction would be out of all proportion to the gravity of the offending.

The legal issues for the court to decide were whether the offending was of low to moderate seriousness, and whether the consequences of conviction were out of all proportion to the gravity of the offending. The court found that the offending was of low to moderate seriousness, taking into account the mitigating factors. However, the court also found that the consequences of conviction were not out of all proportion to the gravity of the offending. The court was not satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

The court dismissed the appeal, and upheld the decision of the District Court. The final orders were that the appeal be dismissed and the decision of the District Court be upheld.

Orders