Moala v Police - [2021] NZHC 1516

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-000031

[2021] NZHC 1516

BETWEEN
MAASI TOETUU TUKIPILI MOALA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 June 2021

Appearances:

S Bhardwaj for Appellant J Williams for Respondent

Judgment:

24 June 2021

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 24 June 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Hamilton

MOALA v NEW ZEALAND POLICE [2021] NZHC 1516 [24 June 2021]

[1] Mr Moala pleaded guilty in the District Court to a charge of assaulting a person in a family relationship, namely his wife. He also pleaded guilty to a charge of failing to answer his bail. On 25 June 2020 Judge J C Down declined an application by Mr Moala to be discharged without conviction under s 106 of the Sentencing Act 2002.1 The Judge then sentenced Mr Moala to nine months supervision and ordered him to perform 100 hours community work. The Judge also required Mr Moala to undertake and complete counselling and treatment.

[2] Mr Moala appeals against the Judge’s decision declining to grant him a discharge without conviction.

Leave to appeal out of time

[3] Mr Moala did not file his notice of appeal until 19 May 2021. It was therefore filed approximately ten months out of time. That is a lengthy period, and the Court would normally require a convincing explanation before granting leave to appeal out of time. Mr Moala has filed an affidavit in which he explains that he only had one brief meeting with his former counsel, Ms Senar, after being sentenced. He said she did not advise him of his right to appeal and subsequent approaches to other lawyers did not provide him with further assistance. It was not until he engaged Mr Bhardwaj that he received advice regarding his right to appeal.

[4] I do not find this explanation particularly convincing but given the issue at stake I consider it is appropriate to grant Mr Moala an extension of time within which to bring his appeal. I make an order accordingly.

Fresh evidence

[5] Mr Moala also seeks leave to adduce fresh evidence. This takes the form of an affidavit sworn by Mr Simon Laurent, a solicitor who specialises in immigration law. Mr Laurent has sworn an affidavit in which he sets out the likely consequences of a conviction so far as Mr Moala is concerned from an immigration perspective.

1 New Zealand Police v Moala [2020] NZHC 11999.

[6] The Court of Appeal has recently observed that material of this type may be helpful to a court considering an application for discharge without conviction in circumstances where the entry of a conviction may result in the offender being deported.2 Such evidence may assist the Court to identify an offender’s immigration status and associated rights, and it may also explain “otherwise opaque” administrative processes. In particular, it may identify considerations…

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 Moala v Police

Details

AGLC: Moala v Police [2021] NZHC 1516
Case: [2021] NZHC 1516
Decision Date: 24 June 2021

CaseChat Overview and Summary

In Moala v Police, Mr. Moala appealed against his conviction and sentence for assaulting his wife and failing to answer his bail. The appeal centred on the District Court's decision to decline a discharge without conviction under Section 106 of the Sentencing Act 2002. The High Court granted leave to appeal out of time and considered fresh evidence from a specialist immigration lawyer, which outlined the likely consequences of Mr. Moala's conviction from an immigration perspective. The Court assessed the overall gravity of the offending and the likely consequences of a conviction, considering factors such as Mr. Moala's prior convictions, his failure to modify his behaviour despite warnings, and the hardship his family would face if he were deported. The Court found that the consequences of conviction were not out of all proportion to the gravity of the offending and dismissed the appeal against conviction.

Orders