Muatabu v Police - [2022] NZHC 2535

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-485-44

[2022] NZHC 2535

BETWEEN
MARIKA MUATABU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 September 2022

Appearances:

A Peter and O M Crosse for Appellant R G Buckman for Respondent

Judgment:

4 October 2022

JUDGMENT OF McQUEEN J

[1] The appellant, Marika Muatabu, pleaded guilty to one charge of assault on a person in a family relationship.1 He appeals against his conviction and sentence on the basis that the District Court Judge erred in declining his application to be discharged without conviction, instead convicting him and imposing 12 months’ supervision.2

[2] The appellant argues that the Judge erred in his assessment of the gravity of the offending and his assessment of the consequences of a conviction on the appellant in determining a discharge was unavailable. In the alternative, the appellant submits that the sentence of supervision imposed was manifestly excessive in the circumstances.

1 Crimes Act 1961, s 194A, maximum penalty two years’ imprisonment.
2 Police v Muatabu [2022] NZDC 13666.

MUATABU v NEW ZEALAND POLICE [2022] NZHC 2535 [4 October 2022]

Background

[3] In the early hours of Friday 27 August 2021, the appellant knocked on the door of the flat of the victim, where she was at home asleep. He demanded entry to the flat. The victim asked Mr Muatabu to leave but he refused, saying that he needed to have a discussion with her. The victim let him inside the flat and then prepared to leave the property herself. Mr Muatabu grabbed her to prevent her from doing so. The victim told him again to leave the property but again he refused, and this time Mr Muatabu grabbed her and forced her to the ground. In the process he landed on top of the victim, as a result of which she received bruising to her hip and arm.

[4] The appellant has no previous convictions but there is a background of family violence matters. The appellant was granted diversion in 2017 for wilful damage in a family violence context. There is a family violence bail report that records several incidents after the diversion in 2017 and before the current matter, involving family violence.

[5] The appellant pleaded guilty to the offending on 22 November 2021. Following his guilty plea, he completed a 16-week “Living Without Violence” programme, to which he self-referred. Following completion of the course, the appellant applied for a discharge without conviction. This was considered by the Wellington District Court on 20 July 2022.

[6] Mr Muatabu swore an affidavit in support of his application. In that affidavit, Mr Muatabu expresses his shame and remorse at his offending and takes full responsibility for it. He explains that on 27 August he had consumed significant amounts of alcohol and kava, which contributed to the offending. He asks the Court to take into account the efforts he has made to address his behaviour and ensure that it never…

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: [2022] NZHC 2535
Decision Date: 4 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Marika Muatabu appealed against his conviction and sentence for assault on a person in a family relationship. Muatabu pleaded guilty and sought a discharge without conviction, which the District Court declined, convicting him and imposing 12 months’ supervision. The appeal centred on whether the District Court Judge erred in assessing the gravity of the offending and the consequences of a conviction, and whether the sentence was excessive. The High Court found the District Court erred in assessing the consequences of conviction as speculative and concluded the consequences of conviction were out of all proportion to the gravity of the offence. The High Court discharged Muatabu without conviction, allowing the appeal and ordering that Muatabu be discharged without conviction. The Court emphasised that this outcome was specific to the circumstances of this case and that a similar outcome may not be expected if Muatabu were to come before the courts again for family violence offending.

Orders