Pio v Police - [2014] NZHC 2047

NOTE: EXISTING INTERIM ORDER FOR NON-PUBLICATION OF THE APPELLANT'S NAME AND IDENTIFYING PARTICULARS UNDER S 200
OF THE CRIMINAL PROCEDURE ACT 2011 WILL CONTINUE UNTIL
5.00PM, 3 SEPTEMBER 2014.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-031 [2014] NZHC 2047

BETWEEN
SETU PIO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 August 2014

Appearances:

J G Krebs for the appellant
G R J Thornton for respondent

Judgment:

28 August 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Setu Pio, pleaded guilty to a charge of male assaults female. In sentencing Mr Pio in the District Court at Hastings on 17 July 2014 Judge Rea declined Mr Pio’s application under s 106 of the Sentencing Act 2002 for a discharge without conviction.1 The Judge convicted Mr Pio and ordered him to pay a fine of
$1,000 and Court costs of $130. The Judge also declined permanent suppression of

Mr Pio’s name.

[2] In this appeal, Mr Pio argues that the Judge was wrong to decline his application for a discharge without conviction and also wrong to decline his application for permanent name suppression. Mr Pio does not otherwise challenge
the sentence imposed.

1 Police v Pio DC Hastings CRI-2014-020-000548, 17 July 2014.

Mr Pio’s offending – the facts

[3] Mr Pio is a police constable. That fact is of obvious significance in the context of Mr Pio’s offending, and this appeal.

[4] Based largely on the statement of facts to which Mr Pio pleaded guilty, Mr Pio’s offending can be described in this way.

[5] Mr Pio had previously been in a relationship with the mother of his two year old daughter, the complainant in this matter. Mr Pio and the complainant have separated. At the time of Mr Pio’s offending Mr Pio’s former partner had custody of the daughter on an informal basis. Mr Pio looked after her from time to time when not engaged in his employment as a police constable.

[6] One such occasion was the morning of Sunday 2 March 2014. On that day Mr Pio had collected his daughter from her grandparents,2 where she had stayed overnight when her mother had gone out with her new partner. Mr Pio’s former partner arrived to take their daughter to a birthday party. Mr Pio was not happy with that arrangement as he had expected he would be caring for the child for the whole day. As the complainant was preparing to place the child in her car Mr Pio grabbed the child. The complainant tried to hang on to the child, and a brief tug of war occurred.

[7] During this time, Mr Pio pushed the complainant forcefully with an open hand to force her to let the child go. That blow hit the complainant on the top of her chest. Mr Pio then started to push the complainant away by pushing her throat area. The complainant let go of the child and, as she did so, Mr Pio again pushed her forcefully in the…

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 Pio v Police

Details

AGLC: Pio v Police [2014] NZHC 2047
Case: [2014] NZHC 2047
Decision Date: 28 August 2014

CaseChat Overview and Summary

Setu Pio, a police officer, pleaded guilty to a charge of assaulting a female, his former partner, and was sentenced by the District Court at Hastings. The appellant, Mr Pio, appealed the District Court's decision to convict him and order a fine, as well as the decision to not grant permanent suppression of his name. The appeal was heard by Clifford J in the High Court of New Zealand, Napier Registry. Mr Pio argued that the District Court judge was wrong to decline his application for a discharge without conviction and also wrong to decline his application for permanent name suppression. The court considered the appeal on the basis that the decision under s 107 of the Sentencing Act 2002 was a decision involving judicial evaluation, and not a discretionary one. The court assessed the gravity of the offence committed, taking into account aggravating and mitigating factors relating to the offending, and found that the consequences of a conviction for Mr Pio were out of all proportion to the gravity of his offending. The appeal was allowed, the conviction was quashed, and Mr Pio was discharged without conviction. However, the appeal against the Judge's decision on name suppression was dismissed, and the interim suppression order was continued until 5.00 pm, 3 September 2014. If no appeal against this decision has been filed by then, suppression will automatically lift.

Orders