Loimata v The King - [2024] NZHC 1388

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]…

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 Loimata v The King

Details

AGLC: Loimata v The King [2024] NZHC 1388
Case: [2024] NZHC 1388
Decision Date: 29 May 2024

CaseChat Overview and Summary

Faita Loimata appealed against the decision of the District Court to decline his application for discharge without conviction, following his guilty plea to two charges of sexual connection with a young person and two charges of an indecent act on a young person. The District Court convicted Mr Loimata and sentenced him to 200 hours of community work and 14 months intensive supervision. The appellant contended that the Judge erred in her assessment of the gravity of the offending as moderately serious, the direct and indirect consequences of conviction, and by declining to discharge the conviction. The Crown opposed the appeal, asserting there was no miscarriage of justice.

The High Court found no error in the Judge's assessment of the gravity of the offending, considering the appellant's youth, early guilty plea, absence of previous convictions, and remorse and rehabilitation. The Court also found no error in the Judge's assessment of the direct and indirect consequences of a conviction as moderate. The Court held that the appellant had not provided evidence of specific employment prospects imperilled by a conviction, and tentative future travel plans carried little weight. The Court found that the special non-association condition of the intensive supervision sentence was an essential element of any community-based penalty and did not meet the threshold of "out of all proportion". Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

Orders