Talitua v The King
[2025] NZHC 2136
•1 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-000309
[2025] NZHC 2136
UNDER the Criminal Procedure Act 2011 BETWEEN
JORDAN TALITUA
Appellant
AND
THE KING
Respondent
Hearing: 22 July 2025 Appearances:
V Tava for Appellant
P Puertollano for Respondent
Judgment:
1 August 2025
JUDGMENT OF BECROFT J
This judgment was delivered by me on 1August 2025 at 4:00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
VI Tava, Barrister, Auckland Kayes Fletcher Walker, Auckland
TALITUA v R [2025] NZHC 2136 [1 August 2025]
This appeal and the result
[1] Mr Jordan Talitua pleaded guilty to one charge of common assault.1 He was sentenced by Judge Moala in the Manukau District Court to five months’ imprisonment.2 He now appeals that sentence.
[2]Mr Talitua argues that:
(a)the starting point was excessive;
(b)an uplift imposed for offending while on home detention (in respect of the same victim), had an element of double counting given there was also a separate uplift for prior, relevant offending; and
(c)the end sentence was manifestly excessive.
[3] I have reached the conclusion that the sentence was within the permissible range available to the sentencing Judge. It was not manifestly excessive. Neither was it inappropriate, nor was there any discernible error. My reasons follow.
The charge and the facts
[4] The victim of Mr Talitua’s offending was his then partner. They had been in a relationship together for several years. They have a young child. At the time of the offending, they resided separately.
[5] Mr Talitua was serving a sentence of home detention, with a condition not to associate with the victim.
[6] On 4 August, the victim visited Mr Talitua at his home in South Auckland for to’ana’i. This is defined in the summary of facts as a “Sunday feast”.
1 Crimes Act 1961, s 196. Maximum sentence one year’s imprisonment.
2 R v Talitua [2025] NZDC 13978.
[7] At about 6.00 pm, Mr Talitua looked through the victim’s phone, accused her of cheating, and told her to leave. The victim snatched her phone from Mr Talitua and went to leave.
[8] Mr Talitua grabbed hold of the collar of the victim’s jumper and shirt and demanded the phone back. The victim told Mr Talitua to let her go but he refused, until he had the phone.
[9] Mr Talitua then “dragged” the victim, by pulling on her jumper and shirt, causing her jumper and shirt to rip, exposing her breast.
[10]Mr Talitua’s family then entered the room and defused the situation.
[11] When spoken to by the police, Mr Talitua accepted there was a verbal argument only. This, of course, must now be accepted as contrary to his plea.
Personal circumstances
[12]Mr Talitua is aged 30.
[13] He has 42 previous convictions. These include the following five sets of violent offending listed chronologically starting with the most recent.
(a)First, in July 2024, Mr Talitua was sentenced to six months’ home detention for assault with intent to injure and wilful damage. These offences were committed against the same victim as this offending. It was nasty and serious offending. He grabbed the victim by her hair and forcibly pulled her downstairs. Ten minutes later, Mr Talitua approached her again and slapped her once to the left side of her face, followed by three punches to her head. The victim crouched down, covered her face, and attempted to protect herself. This was followed by Mr Talitua slapping her on more occasions and grabbing her hair and punching her in the head multiple times with his free hand. The victim suffered injuries.
(b)Second, in September 2023, Mr Talitua was sentenced to six months’ supervision for common assault. Again, this involved the same victim.
(c)Third, in August 2023, he was sentenced to one year and nine months’ imprisonment for demanding with intent to steal and unlawfully taking a motor vehicle.
(d)Fourth, in April 2019, Mr Talitua was sentenced to two years and ten months’ imprisonment for, among other charges, escaping lawful custody, aggravated robbery and three counts of unlawfully possessing firearms.
(e)Fifth, in June 2018, Mr Talitua was sentenced to six months’ home detention for threatening to kill and injuring with intent to injure.
[14] At the time of the index offending, Mr Talitua was only 11 days into his then six months’ home detention sentence for the first set of charges just discussed.
[15] After his arrest on the instant charge, although bail was opposed, he was granted bail on a 24-hour curfew and non-association with the victim, consistent with his then home detention sentence.
[16] On 11 September 2024, Mr Talitua breached his curfew and home detention sentence by failing to present at the door when checked by the police.
[17] On 18 November 2024, Mr Talitua was charged with aggravated robbery and unlawful taking of a motor vehicle relating to allegations that pre-date the offending for which he was sentenced. He is currently in custody awaiting trial for the more serious charges.
Victim impact
[18] The victim’s views, obtained in the pre-sentence report, clearly set out how Mr Talitua’s actions towards her have impacted on her life and the lives of her two young children.
[19] She describes the mental and physical effects. She said she took accountability for allowing herself and her kids to deal with Mr Talitua:
That’s something I am strongly not willing to go through if he were to be released. Even when my children and I am not living with him, we will still get hunted down, and my kids witness Mr Talitua smashing cars, etc, just to get to me. So yes, I strongly do fear for my life and the safety of my kids, not only that but also for my family, who he currently knows where they are residing.
[20]The victim concludes:
This situation has put a toll on my life financially trying to provide for my kids and let alone get by mentally. I hope his sentence is taken into consideration in regard to my safety and my kids.
District Court decision appealed against
[21] Judge Moala correctly summarised the facts and then turned to the victim impact report. She summarised the victim’s views and the victim’s concerns for her safety. The Judge mentioned Mr Talitua’s previous criminal history and concluded that Mr Talitua was a “violent person”.
[22]The Judge adopted the following sentencing structure:
(a)a starting point of four months' imprisonment (one month higher than the prosecution has submitted was appropriate);3
(b)a 20 per cent reduction for Mr Talitua’s guilty plea which, when
rounded down, reduced the sentence to three months’ imprisonment;
(c)a one-month uplift to reflect his history of violence; and
(d)a further one-month uplift for offending while on home detention for family violence offending.
[23] The end point was five months’ imprisonment. The Judge declined leave to apply for home detention, and also declined to impose release conditions.
3 By reference to Whichman v Police [2019] NZHC 3245 given the appellant’s offending involved a greater breach of trust.
[24] A protection order was not imposed because, as I understand it, a temporary protection order was already in place.
Law on appeal
[25] This appeal must be allowed if there has been an error in the sentence imposed and a different sentence should be imposed.4
[26] The sentence must be manifestly excessive before an appellate court can substitute its own views as to the appropriate sentence. Moreover, an appellate court will generally not intervene when the sentence is within a range that can be properly justified by accepted sentencing principles.5 Whether a sentence is manifestly excessive is to be primarily assessed in terms of the final sentence given, rather than the process by which it was reached.
Analysis
[27]I deal with each of Mr Tava’s carefully presented submissions in order.
Was the starting point too high?
[28] Mr Tava referred to seven cases, all of which he submitted were helpful “comparators”. In all but one case, the offending involved violence in the context of a domestic family relationship. Most involved charges of male assaults female and one involved common assault. They cases referred to were:
(a)Whichman v Police;6
(b)Skerten v Police;7
(c)Yeo v Police;8
4 Criminal Procedure Act 2011, s 250(2).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
6 Whichman v Police, above n 3.
7 Skerten v Police [2021] NZHC 3425
8 Yeo v Police HC Auckland CRI-2006-404-283, 14 September 2006.
(d)MacEwan v Police;9
(e)Wilson v Police;10
(f)Stuart v Police;11 and
(g)Dempsey v Police.12
[29] There is no need to set out a detailed analysis of all these cases nor the end sentence. In my view, all the cases depend on their own facts. There is little to be gained by microscopic analysis of their differences, especially when the end sentences were short periods of imprisonment in single figure months.
[30] So far as Mr Tava’s submission goes, I accept that when the starting point adopted by the District Court Judge for Mr Talitua is compared to starting points in other cases with more serious charges, it might be argued that the starting could have been, as Mr Tava suggested, two to three months’ imprisonment. But equally it could have been four months, as here.
[31] Both counsel focussed on Whichman, where a sentence of six months’ imprisonment was imposed on a charge, as here, of common assault. A starting point of six months’ imprisonment was taken in the District Court with an uplift of two months for previous offending and a reduction of two months for Mr Wichman’s guilty plea.
[32] In that case, the appellant was at an address operated by a rehabilitative counselling programme. He was the property manager. The victim was staying at the address, sleeping on a couch. An argument developed culminating in the appellant throwing her to the ground, pulling her through the lounge out onto the verandah, causing her to hit her head at right angles on the door as he dragged her through it. He then pulled her up by her hoodie before pushing her into a verandah railing.
9 MacEwan v Police [2019] NZHC 3320.
10 Wilson v Police [2022] NZHC 3087.
11 Stuart v Police [2023] NZHC 2867.
12 Dempsey v Police [2015] NZHC 2589.
[33] There, it was accepted there was no guideline judgement for common assault— which can encompass a vast range of offending. On appeal, the six-month starting point was accepted as being within the available range although the appellate Judge remarked that he may have taken a five month starting point.
[34] Relying on that case, Mr Tava submitted that, for Mr Talitua, a starting point should have been no more than two to three months, as it was a clearly less serious assault.
[35] In my view, that submission focusses too much on what Mr Talitua actually did—in terms of the mechanics of the assault—rather than the circumstances as a whole.
[36]In this case, there are five particularly important features:
(a)The victim was starting to leave the property and should have been allowed to do so. Mr Talitua invaded her privacy by grabbing her phone. Even when she snatched it back, he demanded she return the phone. He had no right to do so.
(b)Mr Talitua dragged her, in my view, in a clear attempt to prevent her from leaving. She was there voluntarily—but his interaction with her was in breach of his home detention conditions.
(c)Mr Talitua grabbed the collar of her jumper and shirt with sufficient force to rip both pieces of clothing, exposing her breast. Obviously, the force used was significant.
(d)There was a real breach of trust in this situation. There had been a long- term relationship, and they had a child together, even though the parties were living apart at the time. This seems to go beyond the situation in Whichman which was one of supervisor and occupant at what seems to be a supervised bail facility.
(e)The overwhelming inference is that the incident only stopped because of the intervention of family members.
[37] Those factors, taken together, suggest the assault had sinister undertones. It is a classic example of power, control and manipulation—all too often characteristic of family violence incidents.
[38]In my view, Mr Tava’s submissions downplay the incident.
[39] When properly assessed, a starting point of four months’ imprisonment is surely justified. This is Ms Puertollano’s submission for the Crown, and I accept it. She also refers to Kataina-Marii v Police.13 In that case, the appellant faced, among other charges, a charge of common assault pursuant to s 9 of the Summary Offences Act 1981. He had been intoxicated and attempted to strike a security guard at a bar. He missed and was restrained. The starting point of two months’ imprisonment was upheld on appeal. Mr Talitua’s offending is plainly more serious. I accept Ms Puertollano’s submission that this reinforces the appropriateness of the four-month starting point.
[40] In my view, the starting point is not excessive, inappropriate or wrong in principle. As I say, each case turns on its facts. While comparisons with like or apparently more serious offending is often the essence of establishing whether a prison sentence is manifestly excessive, the exercise becomes problematic where (as here) the offence is at the lower end of the spectrum of violent offences and the differences between end prison sentences are single figure months. Here, the suggested comparator cases only serve to emphasise that the starting point (although, perhaps, firm) is within range.
[41] I make one further comment. The Judge might have been wiser to note that some of what was contained in the victim impact report, particularly the reference in the report that her children witnessed this episode, was not part of the summary of facts. While Mr Tava did not raise this point, there is always a risk that extensive reference to the victim impact report might be seen as the basis for sentencing—rather than the summary of facts itself. But, in this case, the Judge correctly set out the summary of facts. It is clear that it is on this basis that Mr Talitua was sentenced.
13 Kataina-Marii v Police [2012] NZHC 3497.
Double counting in the uplifts?
[42] There is a clear basis for an uplift both for previous offending (which in this case is significant, and some of which relates to the same victim), and separately also for offending while on home detention for family violence.
[43]I do not see any double counting in this.
[44] The uplift for previous offending is inevitable. The uplift is for Mr Talitua’s violent past offending as a whole—not just because of offending against the same victim. As the Judge correctly remarked, Mr Talitua is a violent person.
[45] The uplift for offending while on home detention, in my view, clearly relates to the fact of offending having taken place while serving the sentence for family violence generally. Such a sentence is one step down from actual imprisonment. Offending while on home detention must be taken very seriously. I do not regard that uplift as having been imposed by the Judge because the home detention was in respect of offending against the same victim. It was simply a recognition that offending while on home detention for family violence is nowadays recognised as an aggravating personal feature justifying a discrete uplift. That approach, which it is clear the Judge took, cannot be faulted.
[46] Mr Tava was also concerned as to the total amount of the uplift. On his calculation, it constituted an uplift by more than 50 per cent of the three-month period—once the reduction had been calculated. I have reflected on that submission. I do not accept it for the following reasons.
[47] A structured approach to sentencing is important. The modern approach encourages uplifts and reductions to be expressed in percentage terms. However, the shorter the end sentence, the more a percentage approach becomes artificial. When single figure months are involved, a percentage approach could result in analysis of weeks and days. In my view, at the level of sentencing here, where the adjusted starting point had resulted in a provisional sentence of three months’ imprisonment, any uplift imposed had to be meaningful. It had to be significant. And, it had to
provide a clear message to Mr Talitua, consistent with the purposes and principles of sentencing.
[48] Even given the principle that uplifts should be modest, I see no problem in these circumstances in the Judge making two discrete uplifts of one month each. There were two different aggravating personal factors. They both justified separate uplifts. Lesser uplifts expressed in days or weeks would have been artificial. Sentencing should not be an unduly mathematical or microscopically calculated exercise.
[49]I support the Judge’s approach and see no error in it.
Conclusion
[50] In this case, I acknowledge that other District Court Judges may have imposed a slightly shorter end sentence including, as Mr Tava contended, end sentences of four months, or perhaps even three months’ imprisonment. But that is no more than to indicate there is a range within which District Court Judges can properly operate.
[51] The approach taken by the Judge here, while perhaps firm, in my view, is without error. It has not produced a manifestly excessive sentence. Mr Talitua simply needs to get the message that violence, particularly family related violence involving this victim, cannot continue. The courts must take such offending seriously. Any lesser sentence, in my view, would fail to respond to what Mr Talitua actually did to his partner, and the effects that it had on her. It would also fail to unequivocally denounce his conduct; and give effect to the need for individual and general deterrence.
[52] The Judge’s approach was perfectly consistent with the purposes and principles of sentencing.
[53]The appeal must be and is dismissed.
Becroft J
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