Kahu v The Queen - [2018] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-16

[2018] NZHC 2521

STEFAN JOHN HIPIRINI KAHU

v

THE QUEEN

Hearing (via AVL): 25 September 2018

Counsel:

S W O Campbell and V C Nisbet for Appellant M H Cooke for Crown

Judgment:

26 September 2018

JUDGMENT OF CHURCHMAN J

[1] On 12 July 2018, the appellant, Mr Stefan Kahu, pleaded guilty in the New Plymouth District Court to one charge of common assault.1 His application for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) was declined by Judge Barkle; Mr Kahu was convicted of assault and fined $1000, of which $750 was to be paid to the victim.2

[2] Mr Kahu appeals this decision to decline the discharge without conviction.3 He does so on the basis that:

1      Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
2      R v Kahu [2018] NZDC 14293.
3      The Court fine and payment to the victim are not appealed; Counsel for Mr Kahu confirms the fine and payment to the victim have been paid.

KAHU v R [2018] NZHC 2521 [26 September 2018]

(a)the Judge failed to properly consider all the evidence before him to the extent that a miscarriage of justice occurred; and

(b)fresh evidence is now available which confirms the consequence of a conviction is that he will effectively be unable to work for the Fire Service. He seeks leave for this fresh evidence to be admitted on appeal.

[3] The Crown submits that the Judge correctly found the consequences of a conviction are not out of all proportion to the gravity of the offending. The fresh evidence is opposed on the basis that it could have been obtained prior to sentencing. Even if admitted on appeal, it is submitted that the fresh evidence makes no difference to the position. The Fire Service has a legitimate interest in the conviction history of its employees. It is well established that the Court should be careful not to assist in concealing offending from the body responsible for vetting entry to a profession.

Approach on appeal

[4] An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.4 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:5

(a)by virtue of a material error by the sentencing Judge in entering a conviction; or

(b)as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Act.

4 Jackson v R [2016] NZCA 627 at [6]-[16].
5 At [12].

Background

[5] On 9 September 2017, Mr Kahu went with his father and three brothers to a bar in New Plymouth. A dispute arose between Mr Kahu’s brother, Hiwawa Kahu, and a bar patron. The patron then joined the table of the victim.

[6] Soon afterwards, Mr…

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 Kahu v The Queen

Details

AGLC: Kahu v The Queen [2018] NZHC 2521
Case: [2018] NZHC 2521
Decision Date: 26 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Stefan John Hipirini Kahu appealed against the decision of the New Plymouth District Court to decline his application for a discharge without conviction following a guilty plea to a charge of common assault. The appeal was based on the assertion that the District Court judge failed to properly consider all the evidence, resulting in a miscarriage of justice, and the availability of fresh evidence which suggested a conviction would effectively bar Kahu from joining the Fire Service. The Crown opposed the appeal, arguing that the judge correctly found the consequences of a conviction were not out of proportion to the gravity of the offending. The appeal court found that the District Court judge had considered all the mitigating factors, and the consequences of a conviction, while unfortunate, were not out of proportion to the gravity of the offending. The appeal was dismissed.

Orders