Likiliki v Police - [2023] NZHC 1428

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-171

[2023] NZHC 1428

BETWEEN
ANTHONY LIKILIKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 April 2023

Appearances:

H L Beaven and O K Jarvis for the Appellant G E R Alloway for the Respondent

Judgment:

9 June 2023

JUDGMENT OF HARLAND J

Introduction

[1] Anthony Likiliki appeals the decision of Judge Zohrab dismissing his application for discharge without conviction1 following his plea of guilty to a charge of assault with intent to injure 2 where the victim was his former partner. He says that the Judge was wrong to dismiss his application because he will likely face deportation to Tonga and this, he says, is a consequence of the conviction out of all proportion to the gravity of his offending.3

[2] Appeals against a refusal to grant a discharge without conviction proceed by way of rehearing.4 That means this Court, on appeal, must look at the matter afresh.

1      New Zealand Police v Anthony Likiliki [2022] NZDC 19385.
2      Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3      Sentencing Act 2002, ss106 and 107.
4      H v R [2012] NZCA 198 at [35]-[36].

LIKILIKI v POLICE [2023] NZHC 1428 [9 June 2023]

If it concludes that a discharge without conviction should have been granted, the appeal must be allowed.5

[3] I have decided to grant the appeal. This Judgment sets out my reasons for doing so.

Gravity of the offence6

[4] Mr Likiliki is Tongan and the eldest of five children. He and his family moved to New Zealand in 2019 under the Pacific Access Category Resident Visa programme, which operates by way of ballot. The Likiliki family had registered for this programme for almost 10 years before receiving an opportunity to apply for New Zealand residency, following which they completed their compulsory two year stay before being eligible to apply for residency. Mr Likiliki and his family members are now in receipt of resident visas. Mr Likiliki would have been either 18 or 19 years of age when the family moved to New Zealand.

[5] Mr Likiliki completed his education in Tonga. It was a great achievement for his family that he was able to do so at what the s 27 report writer said is the top school in Tonga. He additionally represented his country in football between the ages of 15 and 18.

[6] In 2019, Mr Likiliki moved from Auckland, where he had been living with his family, to Christchurch because he had been invited to play for a football team at premier level and because of his relationship with the victim of his offending. It appears that Mr Likiliki and the victim had been in a relationship since they were 18 years of age. While in Christchurch, in addition to playing football, he worked part- time and started studying to become a pilot.

[7]The month prior to his offending, Mr Likiliki turned 22 years…

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: [2023] NZHC 1428
Decision Date: 9 June 2023

CaseChat Overview and Summary

Anthony Likiliki appeals against his conviction for assault with intent to injure, arguing that the court was wrong to dismiss his application for discharge without conviction. Likiliki contends that the risk of deportation to Tonga, which he believes to be a consequence of his conviction, is out of proportion to the gravity of his offending. The appeal was heard and determined on 9 June 2023. The court considered the legal issues of the gravity of the offence, the consequences of conviction, and the proportionality of the consequences to the offending. The court found the offending to be at the lower end of moderate, but concluded that the risk of deportation, given Likiliki's previous conviction, was a severe consequence that was out of proportion to the gravity of the offending. The court allowed the appeal, quashed the conviction, and discharged Likiliki without conviction. The court confirmed the order for the payment of $1,500 emotional harm reparation to the victim.

Orders