Tafea v Police
[2024] NZHC 3593
•28 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-362
[2024] NZHC 3593
BETWEEN ISIKELI TAFEA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 September 2024 Appearances:
M W Ryan and L J Jackson for appellant T Veikune for respondent
Judgment:
28 November 2024
JUDGMENT OF JOHNSTONE J
(appeal against refusal to grant s 106 application
This judgment was delivered by me on 28 November 2024 at 3pm
Registrar/Deputy Registrar
Solicitors: MC, Auckland
TAFEA v POLICE [2024] NZHC 3593 [28 November 2024]
[1] Isikeli Tafea pleaded guilty to a charge of recklessly impeding breathing. He applied in the District Court at Waitākere for discharge without conviction, but his application was declined.1 Mr Tafea appeals against that decision.
Background
[2] Mr Tafea was a relieving teacher at a primary school in Auckland. When he was teaching a class during the afternoon of 5 July 2022, he heard a 13-year-old student behind him say “fuck you”. He mistakenly assumed the comment was addressed to him.
[3] Mr Taefa turned around, grabbed the boy’s collar, and pushed him against a wall, applying pressure to his neck. The pressure was applied for around 10 seconds. The boy had difficulty breathing, and felt that he might pass out.
[4] Afterwards, Mr Tafea continued teaching. The boy went back to his seat and cried.
Approach on appeal
[5] An appeal against a refusal to discharge a defendant without conviction under s 106 of the Sentencing Act 2002 is properly characterised as an appeal against both conviction and sentence.2 The appeal may be granted if the appellant establishes a “miscarriage of justice”, in terms of s 232(2)(b) of the Criminal Procedure Act 2011, occurring by virtue of a material error by the sentencing judge in entering a conviction. Or alternatively, a “miscarriage of justice” in terms of s 232(2)(c), occurring “for any reason”, in the sense that the Judge has erred in applying the discharge principles found in s 107 of the Sentencing Act.3
[6] Under s 107, the sentencing court “must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a
1 New Zealand Police v Tafea [2024] NZDC 14902.
2 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].
3 At [12].
conviction would be out of all proportion to the gravity of the offence”. The court should adopt a three-stage approach:4
(a)First, the court considers the gravity of the offence, taking into account all of the aggravating and mitigating features of the offending and the offender.5
(b)Next, it identifies the direct and indirect consequences of a conviction, and assesses their nature, seriousness and likelihood.6 A “real and appreciable risk” of a consequence is appropriately taken into account.7
(c)Finally, it evaluates whether the consequences of conviction are out of all proportion to the gravity of the offence.
[7] If the threshold is met, the sentencing court must still consider, as a residual matter of discretion, whether a discharge should be granted.8
[8] The sentencing court’s application of s 107 is subject to full appellate review by way of rehearing.9
The decision appealed against
[9] Assessing the gravity of Mr Tafea’s offending, the Judge observed, acknowledging its aggravating features, that “the offending starts out as moderately
4 Prasad v R [2018] NZCA 537 at [11].
5 At [11]; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82].
7 DC (CA47/2013) v R [2013] NZCA 255 at [43] citing Iosefa v Police HC Christchurch CIV-2005- 409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009 at [49].
8 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]; Z (CA447/2012) v R, above n 5, at [27];
and Prasad v R, above n 4, at [11].
9 Viewing the issue as one of identifying a miscarriage under s 232(2)(b) of the Criminal Procedure Act, the appeal will be allowed if the appellate court takes a different view on the evidence, the sentencing judge in that case necessarily having erred. It is for the appellant to show that an error has been made: Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [38]. Viewing the issue as one of miscarriage under s 232(2)(c), the appeal court must determine whether there was an error, irregularity or occurrence in, or in relation to or affecting, the decision to refuse a discharge, creating a real risk that the outcome was affected: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25].
serious”.10 Then acknowledging its mitigating factors, the Judge found that it “still sits in the moderately serious range”.11
[10] On the consequences of a conviction, the Judge referred to the submission for Mr Tafea that there would be adverse impact on his current and future employment as a teacher, and his ability to obtain future employment generally. Mr Tafea’s submission acknowledged that his offending would be disclosed to the Teaching Council and to prospective employers, but it was said that a conviction would result in the Council declining his necessary, ongoing registration as a teacher and future employers preferring others without conviction. The Judge “accept[ed] … the real and appreciable risk of those consequences set out occurring”.
[11] Turning to the issue of whether the consequences of conviction were out of all proportion to the offence’s gravity, the Judge cited R v Middleton, where the Court of Appeal observed:12
The consequences of the offence are likely to be more serious for a teacher than for someone who does not have a professional obligation of care to children. But the potential seriousness of consequences is a product of the essentially high standard of responsibility expected of persons in the position of the appellant. Understandable though the appellant’s sense of frustration at the child’s conduct is, we take the view that this physical treatment of a small, young pupil, emotionally and otherwise psychologically suffering and known to be so, cannot be dismissed as insignificant. A discharge without conviction might suggest otherwise.
[12] The Judge reminded himself of his finding that the gravity of the offending, despite significant mitigating factors, remained “moderately serious weighed against the essentially high standard of responsibility expected of persons in [Mr Tafea’s] position of trust”.13 And the Judge concluded as follows:
[38] Against that background, the Teaching Council in my view is best placed to determine whether you should be registered as a teacher with knowledge that a conviction has been entered in recognition of this significant offending.
[39]Accordingly, I am not prepared to discharge you without conviction.
10 New Zealand Police v Tafea, above n 1, at [35].
11 At [35].
12 R v Middleton CA393/00, 28 November 2000 at [15].
13 New Zealand Police v Tafea, above n 1, at [37].
Mr Tafea’s case on appeal
[13]Mr Tafea appeals on the basis that:
(a)While the offending in and of itself was moderately serious, Mr Tafea’s mitigating personal circumstances brought its overall gravity to “the low to moderate end of the spectrum”. The Judge was wrong to describe it as “still sit[ting] in the moderately serious range”.
(b)The potential consequences of conviction are significant, there being real and appreciable risks that Mr Tafea will lose his career, and that he and his family will suffer serious financial hardship.
Position for New Zealand Police
[14]For the police, Mr Veikune submits that:
(a)the Judge was right to find that Mr Tafea’s mitigating personal circumstances did not lower the moderate seriousness of the offending itself so that its overall gravity remained “in the moderately serious range”; and
(b)in the absence of evidence of “actual certain consequences”, the real and appreciable risk in this case of employment consequences is likely to be related to the offending itself, rather than to conviction for the offending.
Gravity of offending (including personal mitigating features)
[15] Mr Tafea’s personal circumstances confirm that his offending was entirely out of character. Having worked for four years as a teacher in Tonga before coming to New Zealand in 2002, he worked in other roles, before completing tertiary study and then qualifying as a teacher via postgraduate study. In 2015 and 2016, he worked fulltime at a secondary school. From 2016, he worked as a relieving teacher, contracted to an educational recruitment agency which offers its contracted teachers’ services to schools. He commenced that work to spend more time parenting his four
sons while his wife continued in her senior teaching role. At the age of 49, he has no previous convictions.
[16] Mr Tafea was the subject of numerous positive references offered to the sentencing court. His commitment to community education has been demonstrated by the voluntary after-school maths classes he conducted for his wife’s students, and then students from other schools.
[17] Mr Tafea’s response to his offending has been creditable. He pleaded guilty following a sentence indication. He sought to engage with restorative justice processes and expressed his deep remorse for his offending by way of letters to the Court and to the victim, the latter of which he recognised should be conveyed by the police only if the victim and his family were receptive. And he undertook a range of anger-management rehabilitative programmes.
[18] Against these factors, the Judge was right to observe the high standard of responsibility expected of teachers. They occupy positions of trust. Their conduct should reflect the faith that students and their parents place in them. While Mr Tafea’s offending was spontaneous and brief, the breach of trust inherent in his loss of control rightly formed part of the assessment that this was moderately serious offending.
[19] But this first stage of the analysis, where all aspects of the offending and the offender and their response to their offending are taken into account to arrive at an assessment of overall gravity, should not be dominated by one factor over others. In the circumstances of this case, where the offending was indeed spontaneous and brief, Mr Tafea’s personal circumstances — confirming its out of character nature, his acceptance of wrongdoing and remorse, and his efforts to rehabilitate his instincts — deserved greater recognition than mere re-positioning of the overall assessment within a theoretical band of “moderate seriousness”.
[20] In summary, I consider the combination of Mr Tafea’s offending and his circumstances to present an overall picture substantially less serious than that described by the Judge.
Consequences of offending?
[21] Having heard Mr Ryan’s submissions for Mr Tafea at the hearing of this appeal, I invited the filing of updating evidence not put before the Judge in the District Court.
[22] Mr Tafea’s further affidavit confirmed that he elected to allow his teacher registration to lapse in June 2024, rather than to seek renewal pending final determination of his application for discharge without conviction. The upshot has been that Mr Tafea has not continued as a contracted relieving teacher. Despite his mature age and diabetes, he commenced part-time labouring for his brother-in-law. That work ceased when his brother-in-law became unwell.
[23] The manager of the educational recruitment agency to which Mr Tafea was contracted has filed an affidavit stating that it would contract with him again, provided Mr Tafea is discharged without conviction and can renew his teaching registration. The manager does not say, expressly, that the agency would not re-contract Mr Tafea if he is not discharged without conviction. As the Judge observed, Mr Tafea accepts there is a possibility the Teaching Council will renew his registration even if he is convicted. I consider it unhelpful for prospective employers or contracting agencies to inform the Court that they would engage with defendants if they are not convicted, implying they would not do so otherwise. I put this affidavit to one side.
[24] Be that as it may, the requirement at this stage of the three-stage analysis is that the Court assesses the “real and appreciable risk” of a consequence of conviction. It is not necessary, first, that the consequence should be certain.14
[25] That a conviction may well affect a person’s employment prospects is ordinarily viewed as the usual consequence of committing a criminal offence, and by itself will not usually impinge on an employer’s right to know.15 However, as the Court of Appeal recognised:16
… the consequences for an individual may be particularly severe if employers are unwilling to look behind the conviction, and where the circumstances of
14 DC (CA47/2013) v R, above n 7, at [43].
15 Meijler v R [2021] NZCA 472 at [19], citing R v Taulapapa [2018] NZCA 414 at [42(a)].
16 At [19], citing R v Taulapapa, above n 15, at [42(b)].
the offending, if known, would be likely to exclude the person from the particular type of employment being sought. Such a risk may arise where the conviction labels a person as dishonest or violent but does not fairly reflect the offender’s character or culpability.
[26] In that situation, it is not necessary for defendants to adduce specific evidence of potential employers’ attitudes.17 I consider that a conviction for impeding breathing would be likely, in effect, to prevent Mr Tafea from teaching, notwithstanding re- registration as a teacher, and to severely limit his opportunities to obtain other work for which he might be qualified, because the conviction itself would label him as violent without fairly reflecting his overall character.
Out of all proportion?
[27] Since it is clear any application by Mr Tafea to the Teaching Council for re-registration will require disclosure of his offending, the notion of the council’s “right to know” does not amount to a factor in favour of conviction. Nor should it be seen as a factor in favour of discharge, as the Council will need to form its own view of Mr Tafea’s conduct and circumstances when considering independently of this Court whether re-registration is available.
[28] It remains, then, to consider whether the real and appreciable risk of serious employment-related consequences arising because of the conviction itself, rather than the uncertainty around re-registration, are out of all proportion to the overall gravity of Mr Tafea’s offending in light of his mitigating personal circumstances.
[29] Here, as noted above (at [11]), the Judge relied heavily on the cited passage from the Court of Appeal’s judgment in R v Middleton. In that case, however, the Court approached its task on the basis that the appellant was seeking to review the exercise of judicial discretion. And it found the appellant had failed to demonstrate reviewable error.18 That approach on appeal is no longer considered to be correct.
[30] Further, the cited passage of Middleton appeared under the Court’s supplementary observation that it would not necessarily have discharged the appellant
17 Meijler v R, above n 15, at [21].
18 R v Middleton, above n 12, at [14].
without conviction had it been called upon to reach its own judgment. Thus, the cited passage can be seen simply to state the Court’s concern that a discharge in that case might have suggested the offending could be dismissed as insignificant.
[31] In my view, informed understanding of the Court’s judgment in the present case will not suggest Mr Tafea’s offending has been dismissed as insignificant. It involved a wholly inappropriate response to an imagined slight. It had considerable, unwarranted impact on Mr Tafea’s victim, who would naturally have had their trust in adults responsible for their wellbeing and education seriously undermined.
[32] But Mr Tafea’s offending was spontaneous and entirely out of character, and he has responded to his wrongdoing in an appropriate, positive and substantial way.
[33] I consider the real and appreciable risk of seriously harmful financial consequences of conviction for both Mr Tafea and his family to be out of all proportion to the overall gravity of the offending when it is assessed together with Mr Tafea’s personal circumstances.
Result
[34] For the above reasons, Mr Tafea’s appeal is allowed. I quash Mr Tafea’s conviction and consequent sentence of intensive supervision. In place of the conviction, I direct under s 106 of the Sentencing Act 2002 that Mr Tafea is discharged without conviction.
Johnstone J
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