Lopati v Police - [2019] NZHC 198

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0356

[2019] NZHC 198

BETWEEN
ULA LOPATI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 February 2019

Appearances:

P K Hamlin for the appellant H T Reid for the Respondent

Judgment:

18 February 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
P K Hamlin, Barrister, Auckland Meredith Connell, Auckland

LOPATI v NEW ZEALAND POLICE [2019] NZHC 198 [18 February 2019]

Introduction

[1] On 18 May 2018, in the District Court at Auckland, Ula Lopati pleaded guilty to one charge of indecent assault.1 On 5 October 2018, he was convicted and ordered to make an emotional harm payment of $500 to the victim. His application for a discharge without conviction under s 106 of the Sentencing Act 2002 was refused by Judge A C Roberts.2 Mr Lopati now appeals that decision.

Approach on appeal

[2] Courts may discharge an offender without conviction only if the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3 Only then may the Court consider whether to exercise its residual discretion.4

[3] The proportionality test is a question of fact requiring judicial assessment. There must be a “real and appreciable” risk any given consequence will happen: this recognises the court is assessing future likelihood.5 The offender should put information before the court to provide a factual basis for a decision the test has been satisfied. But there is no legal onus on the offender to do so; all that is required is the judge be satisfied s 107 is met.6

[4] If Mr Lopati can establish Judge Roberts’ decision was wrong, I will consider the matter afresh.7

1      Crimes Act 1961, s 135. Maximum sentence of imprisonment is seven years.
2      New Zealand Police v Lopati [2018] NZDC 25782.
3      Sentencing Act 2002, s 106; Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
4      An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; see
Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
5      DC (CA47/2013) v R [2013] NZCA 255 at [43].
6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R,
above n 5, at [43].
7      Austin, Nicholls & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

Gravity of offending

—the offending

[5] Early on Saturday morning, 21 April 2018, Mr Lopati approached the victim at the bar of Chapel Bar on Ponsonby Road. When she turned to buy drinks, he grabbed her right breast over her clothing, lifting it away from her body. In the following altercation, both people were removed from the bar. On his subsequent arrest, Mr Lopati said he could not remember much but, if he inappropriately touched the victim, he took “the onus on that”.

—District Court…

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: [2019] NZHC 198
Decision Date: 18 February 2019

CaseChat Overview and Summary

In the case of Lopati v Police, the appellant, Ula Lopati, appealed against a decision of the District Court, which had refused his application for a discharge without conviction under section 106 of the Sentencing Act 2002. Mr Lopati had pleaded guilty to one charge of indecent assault, for which he was convicted and ordered to make an emotional harm payment of $500 to the victim. The central issue before the court was whether the consequences of conviction were out of proportion to the gravity of the offence. The court considered the factors relevant to assessing the gravity of the offence and concluded that the offending was of low gravity, taking into account the lack of premeditation and the victim’s lack of vulnerability. The court then assessed the consequences of conviction, primarily focusing on the risk to the appellant’s employment prospects. The court concluded that the consequences of conviction were not out of proportion to the gravity of the offence, and dismissed the appeal. The court held that the appellant’s shame was commensurate with the actual offending’s low gravity, as was the less than 'real and appreciable' risk the identified employment consequences would eventuate or Mr Lopati’s other employment prospects would suffer. The conviction was not at all disproportionate.

Orders