Tahere v Police - [2013] NZHC 3391

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-55 [2013] NZHC 3391

BETWEEN VALDA TAHERE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 16 December 2013

Appearances: T Braithwaite for Appellant
N Tahana for Respondent

Judgment: 16 December 2013

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

TAHERE v NEW ZEALAND POLICE [2013] NZHC 3391 [16 December 2013]

[1] Ms Tahere pleaded guilty in the District Court to a charge of common assault. On 9 July 2013, Judge McGuire convicted her on that charge and ordered her to come up for sentence if called upon to do so within six months.1 She now appeals to this Court against conviction. She submits that the Judge ought to have discharged her without conviction pursuant to s 106 of the Sentencing Act 2002 (“the Act”).

The facts

[2] The facts on which the charge was based are contained in a summary of facts with which Ms Tahere takes no issue. It records that at about midday on 1 May
2013, Ms Tahere went to her sister’s address in Tokoroa. She went there to sort out

an issue relating to her son that had arisen the previous day.

[3] A short time after Ms Tahere arrived at the address, an argument occurred and Ms Tahere’s sister asked her to leave the property. She refused to leave, and a short physical altercation ensued. This involved pushing and shoving. At one stage, however, Ms Tahere struck her sister in the face with her fist. She then pushed her sister out of the way, and left the property.

[4] Both parties were charged with assault. The incident did not leave Ms Tahere with any injuries, but her sister was left with bruising to her neck, wrist and forehead.

The sentence

[5] The Judge did not have a great deal to say when he passed sentence on Ms

Tahere. His sentencing remarks are as follows:

[2] Today you will be convicted. You will be ordered to come up for sentence if called upon with six months. So that is basically a good behaviour bond for six months.

The appeal

[6] It now transpires that Ms Tahere is likely to lose her job as a result of the conviction. Ms Tahere is employed as a consumer advocate by an organisation that

1 New Zealand Police v Tahere DC Tokoroa CRI-2013-077-000470, 9 July 2013.

relies on a government contract for funding. She needs her job in order to support her family. If she loses the job, she would be forced to become a burden on the State, and her children are likely to suffer as a result.

[7] Ms Tahere’s employer has filed an affidavit confirming that her organisation receives its funding from the government on the basis of a contract containing the following provision:

The provider shall not employ staff (including volunteer workers) who to the best of the provider’s knowledge has a criminal conviction, relative to the role, for a crime against the person, a crime involving dishonesty…

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: [2013] NZHC 3391
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the case of Tahere v Police, Valda Tahere appealed against her conviction for common assault, arguing that the District Court Judge should have discharged her without conviction under section 106 of the Sentencing Act 2002. The incident involved a physical altercation between Tahere and her sister, which resulted in minor injuries to the sister. Both parties were initially charged with assault but the appeal pertains only to Tahere's conviction. The District Court had ordered Tahere to come up for sentence within six months if required.

The central legal issue in this appeal was whether the District Court Judge should have exercised his discretion under section 106 of the Sentencing Act to discharge Tahere without conviction, considering the disproportionate consequences a conviction would have on her life, particularly her employment and ability to support her family. The court had to weigh the gravity of the offence against the potential adverse outcomes of a conviction, including Tahere's risk of losing her job due to her employer's policy against hiring individuals with criminal convictions for crimes against the person.

The High Court found that the gravity of Tahere's offence was minimal, considering it was a brief altercation without serious injuries, and that the direct and indirect consequences of a conviction would be significantly disproportionate to the seriousness of the offence. The court noted that Tahere's employer would terminate her employment if she maintained the conviction, which would result in her inability to support her family. The court was satisfied that these consequences outweighed the minor nature of the offence, and allowed the appeal. Consequently, Tahere's conviction was quashed, and she was discharged without conviction under section 106(1) of the Act.

Orders