Taavili v Police - [2012] NZHC 2323

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-219 [2012] NZHC 2323
BETWEEN AILEPATA TAAVILI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 September 2012

Counsel: V Reid for Appellant
W N Fotherby for Respondent

Judgment: 11 September 2012

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 11 September 2012.

Solicitors: Public Defence Service, Auckland – vikki.reid@justice.govt.nz
Crown Solicitor, Auckland – william.fotherby@meredithconnell.co.nz

TAAVILI V NEW ZEALAND POLICE HC AK CRI-2012-404-219 [11 September 2012]

Introduction

[1] The appellant, Ms Taavili, is a 37 year old solo mother of three. She is the main breadwinner for her family (including her parents). Ms Taavili is employed as an administrator and has been studying towards a Diploma in Business Administration, in order to improve her future career prospects. She is actively involved with her church. Ms Taavili has no previous convictions. However, in November 2010, Ms Taavili made a grave error of judgment. She became involved in a serious family incident during which Ms Taavili’s cousin was assaulted.

[2] Although her own role in the incident was relatively minor, Ms Taavili now has a conviction for common assault. She is concerned that such a conviction will impact on her future career prospects. Ms Taavili accordingly appeals to this Court from a decision of the District Court not to discharge her without conviction.

Facts

[3] Ms Taavili’s cousin (then aged 19 or 20) had recently upset her extended family by moving out of the family home. On 26 November 2010, the victim was waiting for her sister on the front lawn of the property. A group came out of the house and dragged her along concrete ground for about 20 metres into the house. Her knees scraped on the ground through her clothing and her left elbow hit the ground. She was crying and asking her family to let her go.

[4] Ms Taavili came out of the house after the assault and dragging had occurred. She told the victim to shut up and briefly placed her hand over her mouth. The reason that Ms Taavili gave for this was that her cousin was “screaming and crying and making a lot of noise”. As it was very late, Ms Taavili’s evidence was that she was concerned the noise would wake the neighbours. When Ms Taavili’s cousin was inside the house, Ms Tiotala, the victim’s aunt, threw a jandal at her upper chest.

[5] The various offenders’ roles in this incident were as follows:

(a) Ms Reupena is the victim’s sister. She persuaded the victim to go to the address. She grabbed the victim’s hair, forced her to the ground, and participated in the dragging.

(b)Ms Dateline Taavili is the victim’s cousin. She slapped the victim on the side of her face and participated in the dragging.

(c) Ms Tiotala is the victim’s aunt. She came out of the house and watched the incident and later…

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: [2012] NZHC 2323
Decision Date: 11 September 2012

CaseChat Overview and Summary

Ms Ailepata Taavili appeals a decision of the District Court to not discharge her without conviction after she pleaded guilty to common assault. The appeal raises questions about the application of the disproportionality test in s 107 of the Sentencing Act 2002. The High Court found that the consequences of a conviction for Ms Taavili would be out of all proportion to the gravity of her offending and that she should be discharged without conviction. Ms Taavili was involved in a family dispute in November 2010. She was one of five family members who assaulted her cousin, who had recently moved out of the family home. Ms Taavili's role was relatively minor. She came out of the house after the assault and dragging had occurred, briefly placed her hand over her cousin's mouth, and told her to "shut up." Ms Taavili and the other family members pleaded guilty to their respective charges. At sentencing, Ms Taavili's counsel submitted that she should be discharged without conviction. The police had no objection to this. However, on the day of sentencing, the police opposed the application. Judge McAuslan declined the application for a discharge without conviction. She found that the incident was not a minor one and that it was appropriate to deal with all the offenders in the same way. Ms Taavili appeals the decision of the District Court. The High Court found that the appeal should be allowed. The Court found that Ms Taavili's involvement in the incident was at the lower end of the gravity scale. She had no involvement in the earlier assaults on the victim, which were committed by other family members. The direct and indirect consequences of a conviction for Ms Taavili would be out of all proportion to the gravity of her offending. Ms Taavili is the main breadwinner for her family. She is studying for a Diploma in Business Administration which she hopes will assist her to secure more senior positions in the future. The Court found that the existence of a conviction will likely hinder the appellant's career progression and impact adversely on her ability to secure administrative roles in the future. The Court found that the principle of parity of sentencing did not require all of the offenders to be sentenced in the same way. Ms Taavili's level of culpability was less than that of the other defendants. The appeal is allowed. Ms Taavili's conviction is quashed and she is discharged without conviction.

Orders