Metekingi v Police

[2025] NZHC 1097

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-10

[2025] NZHC 1097

BETWEEN

KEANE METEKINGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 May 2025
Counsel:	J H Waugh for Appellant I Barfucci for Respondent
Judgment:	8 May 2025

JUDGMENT OF GRAU J

[1]                  Mr Metekingi pleaded guilty to a charge of injuring with intent to injure.1 The charge resulted from an incident outside a party where he punched the victim’s head causing the victim to fall to the ground and lose consciousness. Mr Metekingi then twice punched the victim’s head again, while the victim lay on the ground. The victim sustained a concussion, a fractured nose, and lacerations to his mouth and lower chin. He lost two teeth and a third had to be removed.

[2]                  At sentencing Mr Metekingi sought a discharge without conviction under s 106 of the Sentencing Act 2002, primarily on the basis of the consequences of a conviction to his promising rugby career. Judge Marinovich declined to discharge Mr Metekingi, after concluding that the gravity of offending and the consequences of conviction were both moderate.2 That meant the consequences were not out of all proportion to the gravity of the offending. The Judge instead imposed a sentence of 12 months’

1      Crimes Act 1961 s 189(2): maximum penalty five years’ imprisonment.

2      Police v Metekingi [2025] NZDC 2747.

METEKINGI v NEW ZEALAND POLICE [2025] NZHC 1097 [8 May 2025]

supervision (with conditions to attend programmes)3 and ordered payment of $1,840 in reparation.

[3]                  Mr Metekingi appeals the Judge’s refusal to discharge him without conviction. He says the Judge erred in his assessment of both the gravity of the offending, which should have been assessed as low, and the consequences of conviction, which were high. The respondent supports the District Court’s decision. It says the Judge correctly identified that the consequences of conviction were not out of all proportion to the offending.

Legal principles

[4]                  Appeals against a refusal to grant a discharge without conviction pursuant to s 106 of the Sentencing Act 2002 are considered as a composite appeal against conviction and sentence.4 As the Court of Appeal explained in Jackson v R, the principled basis on which to determine a s 106 appeal is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering the conviction.5 In the alternative, it can be argued that a miscarriage has occurred for any reason if the Judge has erred in applying the principles for discharge without conviction set out in s 107 of the Sentencing Act.6

[5]                  If satisfied either error is established, the appellate court must set aside the conviction, with the result that the sentence appeal does not require determination.7 A s 106 appeal is not an appeal against an exercise of discretion. The satisfaction of the threshold requirements for discharge in accordance with s 107 is a matter of fact requiring judicial assessment, and general appellate principles apply.8

3      These conditions included attending assessments for an Alcohol and other Drug (AOD) programme, a tikanga programme, and for a departmental programme, as directed by a probation officer, and to attend and complete any counselling, treatment or programme as recommended by those assessments as directed by and to the satisfaction of a probation officer.

4      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].

5 At [12].

6 At [12].

7 At [13]. It is only if the conviction appeal fails that the Court must proceed to the second stage of determining whether the end sentence imposed was correct. I note in this case the sentence of supervision is not challenged on appeal.

8      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

[6]       The assessment of an application for discharge without conviction involves a well settled three-step process.9 First, the gravity of the offending is determined, with a consideration of all the aggravating and mitigating features of the offence and the offender. Next, the identification of the direct and indirect consequences of conviction is required. There must be a “real and appreciable risk” that the identified consequences will occur. The nature, seriousness, and degree of likelihood of the identified consequences is material.10 The third step is to evaluate whether those consequences are out of all proportion to the gravity of the offence. If the Court decides that they are out of all proportion it must still consider, as a matter of residual discretion, whether to grant a discharge without conviction (although it would be rare to decline to do so).11

Decision under appeal

[7]Judge Marinovich undertook the three-step test set out above.

[8]        He began the assessment of the gravity of the offending by reminding himself that s 106 concerns the gravity of the particular offence, not the offence type. He then recited the summary of facts in detail, which included the harm caused to the victim. He also set out Mr Metekingi’s explanation that he had punched the victim believing he posed a threat to Mr Metekingi’s younger brother, but he realised he had overreacted when he punched the victim to the ground.

[9]        The Judge’s assessment of the facts led him to describe the offending as “serious street violence with some particularly concerning aspects”. Those aspects included the force of the punch which rendered the victim unconscious and could, of itself, have had catastrophic consequences. He also noted the victim had no time to protect himself. His Honour considered there was little to minimal provocation, or a threat by the victim, to Mr Metekingi’s brother. He observed Mr Metekingi had also directed violence towards the victim’s associate who was simply standing there. Most significantly, Mr Metekingi returned to the victim who was lying on the ground, injured and defenceless, and he delivered two further punches to the victim’s head and

9      Prasad v R [2018] NZCA 537 at [11].

10     R v Hughes, above n 8, at [82].

11     [D] v R [2024] NZCA 297 at [9].

face. The Judge described those actions as “particularly aggravating and appalling”. The Judge also described the injuries to the victim which he had seen in a “graphic” photograph, as well as the concussion which had a significant impact. As well, there was an emotional impact on the victim, as he had described in his victim impact statement.

[10]      His Honour assessed the offending as at the cusp of bands 2 and 3 of the sentencing bands in the guideline decision of Nuku v R, warranting a starting point sentence in the vicinity of two to three years’ imprisonment.12 At this point he assessed the offending as serious.

[11]      Judge Marinovich then reassessed the seriousness of the offending in light of Mr Metekingi’s personal mitigating factors. Those were his youth (19 years old at the time), his previous good character (with material suggesting Mr Metekingi was thought of highly), remorse—including an offer to attend restorative justice and pay reparation, self-referral to local mental health and addiction services, and the acknowledgment of responsibility through the guilty pleas.

[12]      The Judge then referred again to the issue of excessive self-defence or some provocation, which had been said to render the offending less serious. Observing that Mr Metekingi had, after the first punch, tried to punch another person before returning to the prone victim and punching him again, he said he did not place significant weight on that factor.

[13]      The matters personal to Mr Metekingi reduced the gravity of the offending to a “moderate level of seriousness”.

[14]      Next, the Judge considered the consequences of a conviction. He noted that Mr Metekingi’s primary employment was secure, and the concern was about the potential impact of a conviction on Mr Metekingi’s pursuit of a potential rugby career. He set out as follows:

I note in terms of your rugby, you play for the Border premier team. You were selected in the Whanganui under-20s, the Hurricanes under-20s, and trialled

12     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

for the New Zealand under-20s. You were also selected in the Whanganui Heartland squad. You hope to continue playing rugby and aspire to be a professional rugby player one day if possible. You are concerned that a conviction would make that impossible.

[15]      The Judge referred to an affidavit from Todd Cowan, the head coach of a number of teams Mr Metekingi had been involved with.  Mr Cowan deposed that  Mr Metekingi was a talented, diligent and hardworking player who definitely had a professional future in rugby. However, a criminal conviction would prove “very difficult in terms of opportunities to progress, obtain sponsorship, travel, general reputation”, and obtaining contracts outside of New Zealand. Mr Cowan had commented that Japan, the USA and Canada were not giving professional contracts to players with criminal convictions and Europe was “fast going the same way”. The Judge observed, however, that it would have been helpful, or preferable, for the rugby unions to have corroborated that information.

[16]      The Judge described the consequence of conviction on Mr Metekingi’s rugby career as somewhat speculative, as it depended on many factors. Mr Metekingi would continue to play rugby whether convicted or not. He held a strong reputation in the teams he played for, and the Judge expected that would remain, with a conviction having a limited impact on the ability to be selected in those clubs, provincial or national teams. While there might be adverse consequences for playing overseas, a conviction would not be a blanket barrier to travel or pursuing a career in the future.

[17]      Turning to the impact on Mr Metekingi’s position within his family, and, as had been submitted, his position as a leader in the community, Judge Marinovich said that was also difficult to quantify. However, on the information available, his Honour considered Mr Metekingi’s good character, employment and community involvement would continue irrespective of conviction, although there might be some impact.

[18]      Finally, the Judge also recognised that, of itself, a conviction would be a stain on Mr Metekingi’s record and was something keenly felt by young people beginning to make their way in the world.

[19]      Assessing all of the information, his Honour assessed the consequences of a conviction as moderate.

[20]      At the third step in the analysis, the Judge described the case as “finely balanced”. On the one hand, there was serious street violence with a significant impact on a victim. On the other hand, Mr Metekingi was young with aspirations. When both the gravity of the offending and the consequences of conviction were moderate, the essential element of “out of all proportion” was not made out.

Positions of the parties

[21]      Mr Waugh, on behalf of Mr Metekingi, criticised the Judge’s assessment of the gravity of the offending. In his submission, the Judge misapplied the guideline decisions of Nuku and Taueki.13 Mr Waugh put it this way:

In the scheme of injuring with intent to injure offending 2 lost teeth, a concussion, some cuts and broken nose cannot properly be characterised as “serious injury” in terms of the aggravating feature as referenced in Taueki.

[22]      In contrast, the respondent says the injuries were significant, requiring hospital admission. The respondent also points out the victim was still undergoing dental treatment some 10 months after the incident.

[23]      For Mr Metekingi, it is said that the conduct of the victim was provocative, and Mr Metekingi acted in the defence of his younger brother and then himself. That should have reduced the seriousness of the offending. The respondent’s position is that the victim’s conduct did not remain an operative cause in the offending throughout its duration. Nor was it a case of excessive self-defence, as the victim was prone on the ground.

[24]      It is said for Mr Metekingi that the correct assessment of the offending would place it in band one of the Nuku sentencing bands and it can be considered as no more than moderate, before personal mitigating features are taken into account. The respondent endorses the Judge’s placement on the cusp between bands two and three, making it serious.

[25]      In terms of the personal matters reducing the seriousness of the offending,  Mr Waugh submitted that the circumstances involved a young impulsive man who was

13     Nuku v R, above n 12; R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372.

defending his brother and mitigation should have been given for that, applying Churchward.14 There were also many other factors personal to Mr Metekingi that mitigated the seriousness of the offending, and the Judge did not give adequate credit. Once all of the factors were taken into account the gravity of the offending should have reduced to low.

[26]      The respondent says the Judge’s assessment of personal mitigating factors was considered and correct and mitigated the gravity of the offending from serious to moderate.

[27]      In terms of the consequences of a conviction, Mr Waugh said there will be damage to Mr Metekingi’s future career prospects outside of rugby, as well as to his prospects of a professional rugby career. While it is accepted that there an element of speculation is involved, the evidence was that a conviction would be “catastrophic” to prospects of a professional career overseas. Mr Metekingi is currently playing in teams from which players can be selected to play professionally, and at that level they may be selected to play overseas, which is where he would like to go. The combination of the general effect on a young person with leadership potential and real prospects, both in general and in rugby, mean it would be out of all proportion to take that potential away, when Mr Metekingi acted out of character, made immediate admissions, was immediately remorseful and has done all he can to make things right.

[28]      The respondent says the Judge’s assessment of moderate consequences was correct, and it follows that the application could not succeed.

Analysis

[29]      The Court may always consider a discharge without conviction regardless of the type of offending involved.15 However, as offending increases in seriousness, it becomes more difficult to find the consequences of conviction to be out of all proportion to the gravity of the offending. As Downs J has explained:16

14     Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.

15     See Basynat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [16-20].

16     Sheers v R [2016] NZHC 2353 at [22](a).

…In part, this is because the consequences of conviction are less likely to be disproportionate when the offending is serious. More importantly, this is also because there is a heightened public interest in the conviction of those who commit serious criminal offences.

[30]      Some discussion of the guideline case of Nuku is appropriate here.17 In that decision, the Court of Appeal provided guidance on how the sentencing guideline decision of Taueki (which set out the guidelines for grievous bodily harm offending) could be adapted to the lesser charge of injuring with intent to injure. The Court set out three sentencing bands. Those bands are as follows:18

Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[31]      The aggravating factors set out in Taueki, referred to above, relevantly include extreme violence, serious injury, attacking the head (which may be treated similarly to offending involving the use of a weapon), and the vulnerability of the victim.19

[32]      Bearing those decisions in mind, I immediately reject the suggestion that the offending should have been categorised as being in the least serious sentencing band above. First, the injuries to the victim in this case were undoubtedly serious. A three- day stay in hospital was necessary for a concussion that may have long-term consequences. There was significant facial injury, and the loss of teeth, with ongoing dental treatment required 10 months after the incident. I also accept the respondent’s submission that the loss of teeth may be considered as disfiguring. I accept that injuries caused by violence can be more serious (and much more serious) than those

17     Nuku v R, above n 12.

18 At [38].

19     R v Taueki, above n 13, at [31].

caused in this this case. But that does not mean the injuries in this case were minor. There is also the emotional impact which is significant.

[33]      I also reject the suggestion that the victim was not vulnerable. That might have been so at the start of the incident, although I also note the first punch was in the nature of a “king hit” when it was sudden and delivered before the victim had any chance to protect himself. Most seriously, the additional punches to the head were delivered while the victim was lying on the ground, injured and utterly defenceless. Vulnerability is a significant factor in the assessment of culpability, as the Court of Appeal said in Taueki.20 The description of vulnerability in that case included “victims who are disabled in some way or otherwise defenceless”.

[34]      The offending also involved an attack to the head. Twice. That factor is self- evidently aggravating. As explained in Taueki, an attack to the head is more serious because of the potential for particularly serious consequences.21 The Courts are sadly well aware of the potential for fatality.

[35]I refer here to the comments of Kόs J in another case:22

Too many people seem to think that we live in a cartoon world where we can hit someone, or drop them to the ground, and they just get up, dust themselves off and carry on. But all too often they don't get up, and never do again. The human skull is a remarkably fragile instrument. It is high time that that fact is more widely appreciated than it is.

[36]This factor is seriously aggravating in the circumstances of this case.

[37]      Nor do I accept there was provocation to a degree that would lower the culpability in this case. As the Court of Appeal said in Taueki:23

Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

20     Taueki, above n 13, at [31](i).

21     At [31](e).

22     R v King [2012] NZHC 3072.

23     Taueki, above n 13, at [32](a).

[38]      It cannot be said that there was serious provocation in this case. The victim only “walked aggressively towards” Mr Metekingi’s younger brother. If Mr Metekingi had done nothing more after he pushed the victim away, his response might be considered as reasonable. But after that point, Mr Metekingi’s actions were more consistent with retaliation. They were an extreme response to the victim’s conduct.

[39]      It follows I do not consider the Judge erred in his assessment of the gravity of the offending itself. I add that there is a particular need to denounce and deter such offending, which is all too commonly committed by intoxicated young men, and, as I have said, potentially has fatal consequences.

[40]      Nor was the adjustment for personal mitigating factors inadequate. The Judge referred to youth, previous good character, remorse, self-referral to counselling and the guilty plea. He also addressed the issue of self-defence/provocation again. It appeared to be put forward both as mitigating the offending itself, and as a personal mitigating factor. That approach was maintained on appeal. I have also rejected self- defence/provocation. Even if I had not, it would not be appropriate to double count it. I note that provocation has generally been considered as a mitigating factor in respect of the offending, rather than in respect of the offender themselves.24

[41]      I observe here that the Judge said those personal matters reduced the gravity of the offending to a “moderate level of seriousness”. But by the time the Judge had assessed proportionality as the final step, he had substituted “moderate level of seriousness” for “moderate” gravity of offending, which is self-evidently less serious.

[42]      I cannot fault the Judge’s assessment of the consequences of a conviction either. I make the following points:

(a)Mr Metekingi’s current employment is secure. He is well thought of and has prospects for advancement. That appears to remain the case regardless of whether he has a conviction or not. I accept he may one day wish to change jobs. However, that is in the future, when his employer’s regard will, in my view, go a long way towards reducing or

24     Wairau v R [2015] NZCA 215 at [28].

even neutralising the effect of a conviction for a (it is to be hoped) one- off incident when Mr Metekingi was younger. There is also the future ability for Mr Metekingi to remove his conviction from his record under the Clean Slate scheme.25

(b)Mr Metekingi’s rugby career likewise currently appears to be secure. There is no evidence it has been, or will be, affected by his conviction. Rather, it appears he may continue to play—and flourish—without suffering any selection consequences, at least in terms of local rugby.

(c)While there is evidence that some countries, Japan, USA and Canada, will not give professional contracts to players with criminal convictions, there is no evidence of overseas selection being currently in prospect. There is also no evidence from those sources, which would have made the position clearer. Nor is it clear what the position is in other countries. In any event, as the respondent points out, given the significance of a player’s social image within high profile rugby teams, potential employers have a legitimate interest in knowing a player’s history. The recent remarks of another Judge of this Court are apt here:26

… if the Rugby Union, and its sponsors, seek to present their players as objects of admiration, it would be wrong for the courts to be complicit in concealing information which may be relevant to that narrative. [The defendant’s] offending is now part of his background. Prospective sponsors are entitled to know about aspects of his history which are inconsistent with any marketing campaign he may be attached to. It follows that even if there were clearer evidence that a conviction may make it harder for him to persuade selectors or attract sponsors, it would by no means be clear that the consequences of a conviction would be out of all proportion to the seriousness of his offending.

[43]      Accordingly, I am not persuaded that the Judge’s assessment of “moderate” consequences was an error.

25     See the Criminal Records (Clean Slate) Act 2004.

26     Barrowcliffe v R [2024] NZHC 3061 at [53].

[44]      Finally, I note that I am not persuaded there is any real issue of disparity with cases that the Judge was provided, which would mean the result for Mr Metekingi should also have been a discharge. One case involved a drink driving charge, which is not comparable to the offending in this case.27 One was an internet article reporting on a case; Judges should be provided with court decisions, not media reports. The other is a District Court decision, where “by a very small margin” the Judge was prepared to grant a discharge to a promising rugby player, a decision I consider particularly generous I observe there also appears to be a complete absence in that decision of any assessment of the gravity of the offending.28

[45]      In contrast there are more comparable and persuasive decisions of this Court which have dismissed appeals by promising rugby players against refusals to discharge.29 That said, all have different facts. The real point is that each case is unique.30

[46]      In summary, I can find no error in the Judge’s decision. It follows that the appeal must be dismissed.

Grau J

Solicitors:

Crowley Waugh Barristers and Solicitors, Whanganui for Appellant Crown Solicitor, Whanganui for Respondent

27     Dennis v Police [2016] NZHC 1768.

28     Police v Oliver-Davies [2025] NZDC 3123.

29     Police v Filipo [2016] NZHC 2573; Barrowcliff, above n 26; and McCaw v Police [2012] NZHC 127.

30     McCaw, above n 29, at [32].