Tahitahi v Police - [2012] NZHC 663

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-10 [2012] NZHC 663

KAYLA MARIE TAHITAHI
Appellant
v

THE POLICE
Respondent

Hearing: 27 March 2012

Appearances: D Schellenberg for appellant
K Chang for the respondent

Judgment: 4 April 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of am on Wednesday 4 April 2012

Solicitors:
Public Defence Service Auckland Daniel.schellenberg@justice.govt.nz
Crown Solicitor Auckland Karen.chang@meredithconnell.co.nz

TAHITAHI V THE POLICE HC AK CRI 2012-404-10 [4 April 2012]

[1] Having pleaded guilty to two charges of wilful damage and one of common assault, the appellant appeared for sentence in the North Shore District Court before Judge Dawson on 11 January 2012. The Judge convicted her and ordered her to appear for sentence if called upon within six months. He imposed no other penalty.1

[2] On appeal, Mr Schellenberg argues that the appellant ought to have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Offending background

[3] The incident which gave rise to these charges occurred on 19 March 2011. The appellant was then 18 years old. She had been in a personal relationship with the victim for a period of some months, but the relationship had come to an end in circumstances that left the appellant somewhat distressed.

[4] On the day of the offending, the appellant’s ex-partner arrived at the appellant’s home accompanied by an associate who was driving his own car. Some of the ex-partner’s belongings were loaded into the car. An argument developed between him and the appellant, who became rather emotional. She picked up a full length mirror and smashed it against the rear left window of the vehicle. The victim and his associate got into the vehicle and reversed up the driveway. As they did so the appellant approached the car and threw a large rock at the passenger window, in an attempt to hit the victim. The window broke. Neither the victim nor his associate suffered any injuries in the incident, and there is no suggestion that either was actually struck by the rock or the mirror.

Procedural background

[5] The appellant appeared in the North Shore District Court on 25 March 2011 and was then remanded without plea for police diversion consideration. Diversion

1 Police v Tahitahi DC North Shore CRI 2011-044-1809, 11 January 2012.

was subsequently declined. She elected summary jurisdiction and entered not guilty pleas to the charges on 15 April 2011. That appears to have been because she disputed some aspects of the summary of facts.

[6] However, on 19 May 2011, the appellant was advised by a duty lawyer to plead guilty to the charges. She decided to do so because, although she still disputed some of the alleged factual material, she wanted to bring the Court proceedings to an end. Accordingly, she pleaded guilty to all three charges on that day.

[7] Judge Morris indicated at that time that a discharge without…

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 663
Decision Date: 4 April 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Tahitahi appealed against the sentencing decision of the North Shore District Court. The appellant, having pleaded guilty to charges of wilful damage and common assault, was convicted and ordered to appear for sentence within six months. The appeal focused on whether the appellant should have been discharged without conviction under Section 106 of the Sentencing Act 2002. The appellant's counsel argued that the consequences of conviction, particularly in terms of employment prospects, would be disproportionate to the minor nature of the offending. The legal issues centered on whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, as required by Section 107 of the Sentencing Act.

The court considered the domestic nature of the incident, the lack of injuries to the victims, and the appellant's efforts to address her behaviour through community work, anger management courses, and prompt payment of reparation. The court acknowledged the appellant's youth, lack of previous convictions, and her active attempts to reintegrate into society positively. The court also highlighted the significant impact that the convictions could have on her employment prospects, especially in a competitive job market. Ultimately, the court found that the appellant had met the statutory test for discharge without conviction, and the direct and indirect consequences of a conviction would indeed be out of all proportion to the gravity of the offence. The appeal was thus allowed, and the appellant was discharged without conviction.

The final orders of the court were to quash the convictions on each charge and to discharge the appellant without conviction pursuant to Section 106 of the Sentencing Act 2002.

Orders