Taufalele v Police

[2015] NZHC 2851

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2015-404-279

[2015] NZHC 2851

BETWEEN

MIRZA TAUFALELE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 November 2015
Appearances:	MJ Utting for Appellant C Cross for Respondent
Judgment:	17 November 2015

ORAL JUDGMENT OF TOOGOOD J

TAUFALELE v NEW ZEALAND POLICE [2015] NZHC 2851 [17 November 2015]

Introduction

[1]    Mirza Abbas Langaola Taufalele pleaded guilty in the North Shore District Court to one charge of common assault. He applied for a discharge without conviction but Judge JC Down sentenced him to 60 hours’ community work and ordered him to pay $500 in reparation.

[2]He now appeals, arguing that the Judge erred:

(a)in assessing the gravity of the offending by not taking all relevant matters into account; and

(b)in weighing the consequences of conviction against the gravity of the offending.

[3]    The appellant suggests that a conviction may affect his current employment or his future employment, and will affect his standing in his family and have a detrimental effect on his mana.

Relevant Facts

[4]    On the evening of 6 February 2015, Mr Taufalele and an associate were walking on the street outside the victim’s home. As they walked past they made several offensive comments to the victim’s granddaughter, who was on the road outside the house.  The victim came  out  of the  house  and asked  them to leave.   Mr Taufalele responded by taunting the victim, saying “Why don’t you try move me along?” The victim approached Mr Taufalele and extended his arm. Mr Taufalele grabbed the victim’s arm and tried to punch him in the head but the blow was blocked. Mr Taufalele was then pushed to the ground by the victim.

[5]    The pair walked away quickly, only to return and make repeated threats to the victim. Mr Taufalele’s associate then struck the victim in the head with a blunt object. The pair then fled when police arrived.

District Court Decision

[6]    After setting out the facts of the assault, Judge Down noted that the appellant had been a leader in the assault, as the oldest member of the group. However, the Judge also noted that Mr Taufalele had apologised and had attended a Living Without Violence programme prior to sentencing. The Judge took those factors into account, as well as the evidence that Mr Taufalele had ongoing issues with alcohol which led to the present offending, and he considered also the age and vulnerability of the victim. He treated it as a relatively serious assault.

[7]    In terms of the consequences, the Judge accepted there would be impacts for Mr Taufalele in terms of employment and travel, as well as his family relationships. The evidence in this regard was limited, however, and balancing all of the factors, the Judge considered that a discharge without conviction was not warranted and declined the application.

Appellant’s Submissions

[8]    The appellant says that the assault is not overly serious, particularly when the role which the victim played in aggravating the incident is considered. Counsel for the appellant, Mr Utting, accepts that the evidence of consequences of a conviction is not specific because Mr Taufalele has been unable to approach his employer to get confirmation of the impact of an assault conviction on his employment; nevertheless he argues that the likely consequences warrant a discharge. In particular, the appellant relies on the potential for adverse employment consequences of a conviction: dismissal and difficulty in obtaining other employment. Counsel submits that the Court may discharge an offender “if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.”1

Respondent’s Submissions

[9]    For the respondent, Ms Cross submits that the offending is moderately serious, involving an assault by a group of people on an older victim at his home address. She accepts there are several mitigating factors, including an early plea, the fact that

1      Alshamsi v New Zealand Police HC Auckland CRI-2007-404-62, 15 June 2007.

Mr Taufalele attended an anti-violence programme and that he was suffering from work and family stress at the time. However, counsel submits that the fact that the attack was provoked to some degree does not markedly alter its seriousness. This is particularly the case, given that it was Mr Taufalele and his associate who initiated the interaction with a series of insults.

[10]   But, counsel says, the consequences are entirely speculative and there is no reason to consider that this conviction will be treated differently from Mr Taufalele’s earlier drink-driving convictions.

The approach to the appeal

[11]   Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction, subject to the test in s 107 being satisfied. That test provides:

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[12]   The test sets a high threshold. When the s 107 test is met, the court then has a discretionary power to discharge the offender under s 106. Satisfying the first part of the test usually results in a discharge.

[13]   An appeal against a refusal of a discharge is by way of rehearing with the appellate court making a new assessment in accordance with its own opinion.2 The Court of Appeal in R v Hughes concluded that, as the s 107 test was not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion,3 which would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.

[14]   The approach to be followed in applying the s 107 test requires the court to determine the seriousness of the offence, having regard to both the aggravating and

2      R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].

3     R v Hughes, above n 2.

mitigating factors of the offence, and also to those factors which apply to the appellant personally. The court should then determine the direct and indirect consequences of conviction and assess whether they are out of all proportion to the offending.4

Employment prospects

[15]   It is not unusual for persons requesting a discharge without conviction to do so on the basis that it will make it harder for them to find employment or to retain it. In Amstad v Police, Whata J held that the relatively serious offending in that case (which included the taking of a motor vehicle and drink driving) was out of all proportion to the consequence that Mr Amstad would be completely barred from fulfilling his aspirations and joining the army.5

[16]   Similarly, in R v Tahitahi, Allan J considered that the difficulty the offender would have in finding work was out of all proportion to her offending,6 particularly given the fact that she had been on a benefit seeking work for twelve months.7 The offending in that case involved throwing a rock at her ex-partner’s car window and breaking it as he drove out of the driveway.8 In that case, Allan J accepted that the risk of difficulty securing employment was a general consequence of a criminal conviction, but that it was still relevant. In doing so he relied on the decision in Nash v Police where Mallon J observed that general consequences, including effects on employment, insurance and immigration, could all be weighed in the balance.9

Discussion

[17]   The appellant’s direct involvement in the assault was limited, but he was part of the plan to attack the victim and it was his party that began the altercation. It is significant, in my view, that the appellant and his associate returned to continue the assault after having been repelled initially. I agree with Ms Cross’s characterisation of Mr Taufalele’s offending as moderately serious.

4      Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]

5      Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at 28.

6      Tahitahi v Police [2012] NZHC 663 at [31].

7 At [23].

8 At [4].

9      Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].

[18]   It seems that alcohol was a significant factor in this case. The appellant does not have a history of violent offending, but his previous convictions for drink-driving suggest the consumption of alcohol presents an ongoing issue for him. His decision to plead guilty and his engagement with an anti-violence programme are positive. But until Mr Taufalele deals with the underlying alcohol issue, it is probable that his anti- social behaviour will continue. That is at least as likely to affect his standing among his family members as is conviction for assault.

[19]   There is no evidence of a real and appreciable risk that Mr Taufalele will lose his job as a consequence of a conviction; merely general speculation that this may occur. Despite Mr Utting’s best endeavours, I am satisfied that the risk, such as it is, does not take this case anywhere near the threshold for a discharge. Balancing the risk of dismissal against the seriousness of the offending, the consequences are not, in my view, out of all proportion.

Result

[20]I dismiss the appeal.

……………………………..

Toogood J