Kolo v The King - [2023] NZHC 2037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000168

[2023] NZHC 2037

BETWEEN
TUPAI KIETA KOLO

Appellant

AND

THE KING

Respondent

Hearing: 24 July 2023

Appearances:

Appellant in Person

C Purdon for Respondent

Judgment:

2 August 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 2 August 2023 at 4.00 pm.

Registrar/ Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

KOLO v R [2023] NZHC 2037 [2 August 2023]

[1] Mr Tupai Kolo (the appellant) has pleaded guilty to two charges of assaulting a constable acting in the execution of his duty1 and one charge of disorderly behaviour.2 He appeals against the decision of Judge M-E Sharp delivered in the District Court at Auckland on 17 March 2023 declining his application to be discharged without conviction under s 106 of the Sentencing Act 2002 (the Act), and sentencing him to 12 months’ supervision.3

[2] The appellant is self-represented. The appellant appeals on the grounds that the decision of Judge Sharp declining his application for discharge without conviction was unfair, and he alleges errors by his former trial counsel, including a failure by his trial counsel to formally apply for a discharge pursuant to s 106 of the Act.

[3] The Crown oppose the appeal and submit that the Judge did not err in declining the appellant’s application to be discharged without conviction.

Alleged offending

[4] Around 11.30 pm on 24 January 2020 the appellant and two associates were on Takapuna Beach, Auckland. The appellant and his associates were consuming alcohol and were in a highly intoxicated state.

[5] A member of the public complained to the Police that the three men were making a lot of noise and disturbing the peace. Two Police officers arrived and attempted to speak with one of the appellant’s associates. Judge Sharp summarised the appellant’s offending as follows:

[2] The facts are pretty uninteresting, really, but suffice to say that at 11:38 pm on 24 January 2020, Mr Kolo was at Takapuna Beach with two friends, all were consuming alcohol and highly intoxicated. Police were called by a member of the public. Mr Kolo began shouting at the police officers, telling them to go away and leave his friends alone. He was warned of arrest but did not stop shouting. He was told to move away but did not, was arrested and handcuffed for disorderly behaviour and whilst seated next to a constable in the back seat of the police car, he spat at the constable’s face and whilst being transported to the Henderson custody unit at 12.05 am on 25 January, while Mr Kolo was sitting in the rear passenger seat, he lifted up his right leg and kicked another constable with full force to his left shoulder, as a result of

1      Summary Offences Act 1981, s 10. Maximum penalty six months’ imprisonment.
2      Section 4(1)(a). Maximum penalty $1,000 fine.
3      R v Kolo [2023] NZDC 8897.

which that constable temporary…

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 Kolo v The King

Details

AGLC: Kolo v The King [2023] NZHC 2037
Case: [2023] NZHC 2037
Decision Date: 2 August 2023

CaseChat Overview and Summary

Tupai Kolo appeals against his conviction and sentence for assaulting a police officer and disorderly behaviour. Kolo had pleaded guilty to two charges of assaulting a police officer and one charge of disorderly behaviour. He appeals against the decision of Judge M-E Sharp in the District Court declining his application to be discharged without conviction under s 106 of the Sentencing Act 2002, and sentencing him to 12 months' supervision. Kolo contends that the Judge's decision was unfair and alleges errors by his former trial counsel, including a failure to formally apply for a discharge. The Crown opposes the appeal and submits that the Judge did not err in declining Kolo's application for a discharge. Davison J found that the appellant's trial counsel, Mr Kilian, had not erred in any material respect. The Court found that the appellant's failure to take the steps required to provide a proper foundation for the proposed s 106 application, which was his responsibility and outside the control of Mr Kilian, was the reason the proceedings were prolonged. The Court was also satisfied that there was no miscarriage of justice as a result of a material error by the Judge in entering a conviction. The Court found that the appellant's failure to do the CADS course was what removed the possibility of a discharge without conviction being considered and any likelihood of it being granted. The appeal against conviction and sentence was dismissed.

Orders