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Tafea v Police

Tafea v Police

Case [2024] NZHC 3593 28 November 2024

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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…

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 Tafea v Police

Details

AGLC: Tafea v Police [2024] NZHC 3593
Case: [2024] NZHC 3593
Decision Date: 28 November 2024

CaseChat Overview and Summary

The appeal, heard in the High Court of New Zealand, concerns a decision by the District Court to refuse a discharge without conviction for Mr. Isikeli Tafea, who pleaded guilty to recklessly impeding a 13-year-old student's breathing. The central legal issue was whether the District Court's refusal to grant a discharge without conviction constituted a miscarriage of justice, either due to a material error in assessing the gravity of the offence or an error in applying the principles for granting a discharge under section 107 of the Sentencing Act 2002. The appeal required the High Court to evaluate if the consequences of a conviction were out of all proportion to the seriousness of the offence, considering Mr. Tafea's personal mitigating circumstances.

The High Court found that the District Court had erred in its assessment of the overall gravity of Mr. Tafea's offence. While the Judge correctly identified the offence as moderately serious, the court found that Mr. Tafea's personal circumstances, including his out-of-character conduct, remorse, and efforts at rehabilitation, warranted a more lenient overall assessment. The court also held that the risk of serious employment-related consequences due to a conviction was out of all proportion to the gravity of the offence when considered with these mitigating factors. The High Court quashed the conviction and substituted it with a discharge without conviction under section 106 of the Sentencing Act 2002.

This decision highlights the importance of a balanced assessment of both the offence's gravity and the offender's personal circumstances when deciding on a discharge without conviction. It underscores that even offences of moderate seriousness can, in the right context, result in a discharge if the consequences of a conviction are deemed disproportionate.

Orders