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…

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: [2015] NZHC 2851
Decision Date: 17 November 2015

CaseChat Overview and Summary

In the case of Taufalele v Police, Mirza Abbas Langaola Taufalele appealed against a sentencing decision of the North Shore District Court, where he was convicted of common assault and sentenced to 60 hours of community work and ordered to pay $500 in reparation. The appellant argued that the Judge erred in assessing the gravity of the offending and in weighing the consequences of conviction against the gravity of the offending. The appeal was heard by Toogood J in the High Court of New Zealand.

The legal issues before the court were whether the Judge erred in assessing the gravity of the offending by not taking all relevant matters into account and whether the Judge erred in weighing the consequences of conviction against the gravity of the offending. The appellant argued that the assault was not overly serious, particularly when the role which the victim played in aggravating the incident is considered. The respondent argued that the offending was moderately serious and that the consequences of a conviction were not out of all proportion to the gravity of the offence.

The court held that 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. The court found that the offending was moderately serious, and that there was no evidence of a real and appreciable risk that Mr Taufalele would lose his job as a consequence of a conviction. The court dismissed the appeal and upheld the original sentence.

The court found that the consequences of conviction were not out of all proportion to the gravity of the offence, and that the appellant's alcohol issues and previous convictions for drink-driving suggest that his anti-social behaviour will continue until he deals with the underlying alcohol issue. The court held that the consequences of conviction were not out of all proportion to the gravity of the offence.

Orders