Loimata v The King
[2024] NZHC 1388
•29 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000091
[2024] NZHC 1388
BETWEEN FAITA LOIMATA
Appellant
AND
THE KING
Respondent
Hearing: 20 May 2024 Appearances:
V Letele for Appellant
J M Cassidy for Respondent
Judgment:
29 May 2024
JUDGMENT OF ANDREW
This judgment was delivered by Justice Andrew on 29 May 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………..
LOIMATA v R [2024] NZHC 1388 [29 May 2024]
Introduction
[1] The appellant, Mr Faita Loimata, pleaded guilty in the District Court to two charges of sexual connection with a young person1 (one specific and one representative charge) and two charges of an indecent act on a young person.2
[2] On 22 February 2024, the District Court Judge declined to discharge the appellant without conviction pursuant to s 106 of the Sentencing Act 2002 (the Act). Her Honour convicted the appellant and sentenced him to 200 hours of community work and 14 months intensive supervision.
[3] Mr Loimata appeals the decision not to discharge him without conviction on the following grounds:
(a)The Judge erred in her assessment of the gravity of the offending as moderately serious;
(b)The Judge erred in assessing the direct and indirect consequences of conviction; and
(c)The Judge erred by declining the application to discharge the conviction.
[4]The Crown opposes the appeal; it says there was no miscarriage of justice.
Factual background
[5] Mr Loimata was an uncle-figure to the victim. Between 2017 and 2020, he lived with the victim’s family in Otara, and during this time, sexually offended against her.
[6]The first time the offending occurred, the appellant was 17 and the victim was
11. Mr Loimata touched the victim’s breast over her clothing while she was watching a movie in his bedroom (charge 1 – indecent act on a young person). Mr Loimata then
1 Crimes Act 1961, s 134(1); maximum penalty ten years’ imprisonment.
2 Crimes Act 1961, s 134(3); maximum penalty seven years’ imprisonment.
directed the victim to lie on her back. He pulled her shorts and underwear down, pushed her legs apart and put his penis into the victim’s vagina. Mr Loimata stopped after 10 minutes when he heard someone walking up the stairs (charge 2 – sexual connection with a young person).
[7] When the victim was aged between 11 and 12 years old, Mr Loimata had sexual intercourse with her approximately two times (charge 3 – sexual connection with a young person) (representative). Mr Loimata was aged between 17 and 18 years old. During this period, Mr Loimata would also touch the victim’s thighs.
[8] On another occasion when Mr Loimata and the victim were in a bedroom playing a game, the appellant put his hand on the victim’s thigh and moved it towards her vagina. Mr Loimata stopped when a family member opened the bedroom door (charge 4 – indecent act on a young person).
Personal circumstances
[9] Mr Loimata is now 23 years old and has no previous convictions. He has a partner and two young children.
[10]He has successfully completed a SAFE network programme.
[11] In coming to my decision, I have had regard to all the additional materials filed by Ms Letele. That includes the references, the cultural reports, and the psychological reports.
Procedural history
[12] On 23 July 2021, Mr Loimata sought a sentence indication. This was given by Judge Harvey on 23 November 2021:
(a)A starting point of three years, six months’ imprisonment;
(b)A guilty plea discount of 25 per cent;
(c)The possibility of further discounts; and
(d)A potential end sentence of community detention and intensive supervision (with a condition to attend the SAFE programme).
[13]The appellant subsequently accepted this sentencing indication.
[14] The sentencing was adjourned on many occasions throughout 2022 and 2023 in order to enable Mr Loimata to obtain documentation in support of his s 106 application. A final adjournment was granted on 31 January 2024 to enable Mr Loimata to disclose the offending to his partner.
Decision under appeal
[15] In addressing the requirements of ss 106 and 107 of the Act, Judge Moala held that the gravity of the offending and the direct and indirect consequences of a conviction were both at the “moderate range”. Her Honour was not satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. She accordingly declined the application for a discharge.
[16] Her Honour then considered the sentence indication given by Judge Harvey and adopted a starting point of three years, three months’ imprisonment. She then allowed the following discounts:
(a)25 per cent for early guilty pleas;
(b)Lack of previous convictions;
(c)Youth, noting that the appellant was 17 years old at the time; and
(d)Remorse and rehabilitation.3
[17] Judge Moala noted that an electronically-monitored end sentence was not available (as the appellant had recently told his partner about the offending and the relevant address had not been canvassed).
3 The Judge gave no separate percentage figures for (b), (c) and (d), but held they should be significant. See [11] of the sentencing decision.
Legal principles
[18] An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence under s 232 of the Criminal Procedure Act 2011.4
[19] An appeal against conviction and sentence is dealt with by way of rehearing, with the appellate court making its own assessment on whether the criteria are established.5
[20]The decision was summarised by Gordon J in Singh v Police:6
[12] Under s 232(2), the court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any other reason. A “miscarriage of justice” is defined in s 232(4) as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or resulted in an unfair trial.
[13] There will have been a miscarriage of justice if there was a material error by the judge in entering a conviction (s 232(2)(b)); and there will have been a miscarriage of justice “for any reason” if the Judge erred in applying the principles under s 107 of the Act (s 232(2)(c)).
[14] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment which can be subject to appeal on normal appellate principles. If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed. But the appellant must show that an error has been made; the appeal court is not to consider the evidence de novo.
[21] A discharge without conviction is available when the threshold set out in s 107 of the Act is met:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[22]This provision requires consideration of three factors:7
4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32]; H v R [2012] NZCA 198 at [35]–
[36].
6 Singh v Police [2019] NZHC 2985 at [12]–[14] (footnotes omitted).
7 Z v R [2012] NZCA 599, [2013] NZAR 142.
(a)The gravity of the offence;
(b)The direct and indirect consequences of a conviction; and
(c)Whether those consequences are out of all proportion to the gravity of the offence.
[23] The Court of Appeal in Z v R,8 held that when considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offending and the offender.
[24] The Court should then identify the direct and indirect consequences of a conviction for the offender and consider whether those consequences are “out of all proportion to the gravity of the offence”.9
[25] The use of the expression “out of all proportion” means there must be significant disproportion of consequence in relation to the gravity of the offending before a court will be justified in exercising the discretion to discharge.10
[26] The likelihood of a risk materialising will also be relevant to the proportionality assessment.11
[27] If the Court determines that the consequences are out of all proportion to the gravity of the offence, it must still consider whether it should exercise its residual discretion to grant a discharge, although it will be a rare case where a court will refuse to grant a discharge in such circumstances.12
Analysis and decision
[28]I address each of the three grounds of appeal.
8 Z v R, above n 7.
9 Z v R, above n 7, at [27].
10 NI v New Zealand Police [2013] NZHC 2925 at [17].
11 Maraj v Police [2016] NZCA 279 at [31].
12 Z v R, above n 7, at [27] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
Issue (a) – The gravity of the offence
[29] I find that there was no error by Judge Moala in determining that the offending was at the moderate range.
[30] The offending involved the appellant indecently touching the victim and engaging in sexual intercourse with her at least three times while she was between 11 and 12 years old. She was highly vulnerable.
[31] In making her assessment about the gravity of the offending, the Judge properly took into account the various mitigating features of the offending, including youth, early guilty plea, absence of previous convictions, and remorse and rehabilitation.
[32] I note that the victim and her mother provided victim impact statements for sentencing. In the victim’s statement she said she was stripped of her childhood and innocence. The victim’s mother described being heavily affected by the changes she has seen in her daughter after the offending.
[33]There is no basis for disturbing Judge Moala’s finding on the issue of gravity.
Issue (b) – The direct and indirect consequences of a conviction
[34] The appellant contends that the consequences of the conviction for him will be severe. He and his family (i.e. his partner and two young children) wish to move to Australia to start a new life with his biological sisters. Mr Loimata is also concerned about the impact of a conviction upon his employment opportunities and is very concerned that Oranga Tamariki will either remove his children from him or make it impossible for him to live with his partner and their children.
[35] The special conditions of the intensive supervision sentence imposed include the following:
You [Mr Loimata] are not to associate or otherwise have contact with any person under 16 years of age except in the presence and under the supervision of an “approved informed adult”. An “approved informed adult” means a person who has been given prior approval in writing by a probation officer as being suitable for the purpose of this condition.
[36] Judge Moala assessed the direct and indirect consequences of a conviction as moderate. I again find that there was no error in that assessment.
[37] I accept it is important not to minimise the consequences of a conviction in the current circumstances. However, the courts have repeatedly cautioned against granting a discharge without conviction if the impact on the offender’s employment is unclear and there is insufficient evidence to support any consequences. Without more, impaired job opportunities are a general consequence of conviction to be weighed in the balance.13
[38] In this case, Mr Loimata has not provided evidence of any particular employment prospects which might be imperilled by a conviction.
[39] It is also unclear whether the appellant’s conviction will give rise to an automatic ban on his entry into Australia. Rather, an evaluative exercise will be undertaken by the Australian authorities to ascertain whether Mr Loimata meets the good character test.14
[40] In Brunton v Police,15 Clifford J observed that tentative future travel plans carry little weight in a s 107 context.
[41] Mr Loimata’s concerns about this ability to continue living with his children are understandable. However, the special conditions of the intensive supervision sentence do allow for Mr Loimata’s probation officer to address this issue and in a way which meets the interests and needs of all concerned. I note that the references provided, including one from Mr Loimata’s partner, speak of the compassion and support for him in the community.
[42] I find that there is no basis for disturbing the finding of Judge Moala on the issue of the consequences of the offending (both direct and indirect).
13 Chammaa v Police [2015] NZHC 1893 at [66] citing Nash v Police HC Wellington CRI-2009- 485-7, 22 May 2009 at [19].
14 Wainoa v New Zealand Police [2018] NZHC 259 at [36].
15 Brunton v Police [2012] NZHC 1197 at [16].
Issue (c) – Out of all proportion
[43] It is clear, in order to make out a proper basis for a discharge under s 107, that the Court must come to the conclusion that the consequences of a conviction would be “out of all proportion” to the gravity of the offending.
[44] I accept that the consequences of a conviction in this case for Mr Loimata will be of real impact. However, in my view, Judge Moala was correct in concluding that the threshold of “out of all proportion” is not made out.
[45] Given the nature of the offending in this case, the special non-association condition, as set out above, was inevitable and an essential element of any community- based penalty. Neither that special condition nor the other adverse impacts identified by the appellant, whether individually or cumulatively, meet the threshold of “out of all proportion”.
[46] I find that Judge Moala was not in error in concluding that the threshold in s 107 was not made out.
Conclusion
[47] As Judge Moala noted, sentencing in a case like this is very difficult. Her Honour stated:
Balancing what is right for you [the appellant] and what is right for the victim is extremely hard, and then applying the law needs to be done in a full way so that you and your lawyer can consider your options.
[48] The Judge was not in error in rejecting the application for a discharge without conviction. The appeal must accordingly be dismissed.
Result
[49]The appeal is dismissed.
Andrew J
8
0