Simati v Police - [2025] NZHC 579

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-662

[2025] NZHC 579

BETWEEN
DANIEL SIMATI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 February 2025

Appearances:

L Burbage and J Liu for the Appellant A Lin for the Respondent

Judgment:

28 February 2025

JUDGMENT OF LANG J

[on appeal against refusal to grant discharge without conviction]

This judgment was delivered by Justice Lang On 28 February 2025 at 12.00 noon
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Public Defence Service, Auckland
Kayes Fletcher Walker, Crown Solicitor at Manukau

SIMATI v POLICE [2025] NZHC 579 [28 February 2025]

[1] Mr Simati pleaded guilty in the District Court to a charge of assault with a weapon.1 On 29 October 2024, Judge A M Wharepouri declined an application by Mr Simati for an order under s 106 of the Sentencing Act 2002 discharging him without conviction.2 Mr Simati appeals against the Judge’s decision.

[2] The principal ground relied on by Mr Simati in support of his application was the likelihood that a conviction would result in him being deported from New Zealand. Unfortunately, however, the parties did not make the Judge aware of Mr Simati’s correct immigration status at the time that he made his decision. It is therefore necessary to reconsider afresh the likely effect that a conviction will have in relation to the issue of deportation.

Approach

[3] An application for discharge without conviction is governed by s 106 of the Sentencing Act, which relevantly provides as follows:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

…

[4] In applying s 106, the Court must follow the guidance contained in s 107 of the Sentencing Act. This provides:

107 Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[5] A court considering an application for discharge under s 106 must consider three issues.3 It must first assess the gravity of the offending having regard to the facts

1      Crimes Act 1961, s 202C.
2      New Zealand Police v Simati [2024] NZDC 26033.
3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222, at [16]–[17].

of the particular case. This exercise is not restricted to the aggravating and mitigating features of the offending. It may also include aggravating and mitigating factors personal to the applicant. Next, the court must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that a particular consequence will occur.4 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion…

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 Simati v Police

Details

AGLC: Simati v Police [2025] NZHC 579
Case: [2025] NZHC 579
Decision Date: 28 February 2025

CaseChat Overview and Summary

The High Court was asked to review a decision by the District Court to deny Mr Simati a discharge without conviction for an assault with a weapon. Mr Simati argued that a conviction would likely result in his deportation from New Zealand, which he claimed would be disproportionate to the seriousness of his offence. The Court had to determine if the consequences of conviction, particularly the risk of deportation, were out of proportion to the gravity of the offence.

The Court considered the factors mitigating the seriousness of Mr Simati's offence, such as the degree of provocation, his early guilty plea, expressions of remorse, and his participation in restorative justice. It also assessed the likely consequences of a conviction, including the potential impact on his immigration status and application for a partnership work visa. The Court noted that Mr Simati's family circumstances and his willingness to work in New Zealand might influence a character waiver and any appeal against deportation. Given these factors, the Court concluded that the consequences of conviction were not out of proportion to the gravity of the offence. The appeal was dismissed, and Mr Simati was not granted a discharge without conviction.

The final orders of the Court were that the appeal against the refusal to grant a discharge without conviction was dismissed. This means that Mr Simati's conviction for assault with a weapon will stand, and he will not be discharged without a conviction.

Orders