Taumalolo v Police - [2016] NZHC 1525

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000143 [2016] NZHC 1525

BETWEEN
SIMIONE TAUMALOLO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 July 2016

Appearances:

A F McLean for the Appellant
J Simpson for the Respondent

Judgment:

6 July 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 6 July 2016 at 3.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Public Defence Service, Auckland
Crown Solicitor, Auckland

TAUMALOLO v NEW ZEALAND POLICE [2016] NZHC 1525 [6 July 2016]

Introduction

[1] The appellant, Mr Taumalolo, appeals a decision given by Judge A J Fitzgerald in the District Court at Auckland on 13 April 2016.

[2] Mr Taumalolo pleaded guilty to one charge of contravening a protection order, contrary to s 49(1)(a) of the Domestic Violence Act 1995, and two charges of failing to answer bail, contrary to s 38(a) of the Bail Act 2000. He applied to be discharged without conviction under s 106 of the Sentencing Act 2002. Judge Fitzgerald refused that application. Rather he convicted Mr Taumalolo on the charge of contravening the protection order and ordered him to pay $500 emotional harm reparation to the victim. He convicted and then discharged him for the breaches of bail.

[3] Mr Taumalolo appeals Judge Fitzgerald’s decision not to grant discharges without conviction. He argues that the Judge erred in his assessment when he concluded that the direct and indirect consequences of the convictions were not out of all proportion to the gravity of the offending.

Background

[4] A temporary protection order was made against Mr Taumalolo on 3

September 2014. The order protected his former partner – the victim – and her and

Mr Taumalolo’s son.

[5] On 22 January 2015 – a few days after his son’s first birthday – Mr Taumalolo called the victim on her cellphone. There were four separate calls made between 9.13 and 9.14am. She did not answer. He then entered into an exchange of texts with her. At 10.17am he sent a text message saying “Do it my fukn sonnnn”. The victim replied, advising Mr Taumalolo that if he breached the protection order too often, he could end up back in jail. Mr Taumalolo then replied “Careeee what breechh?? Nigga u don’t hava non contact order on me lmao”. He then sent two further texts saying “Nooooo I dont careeee send the police to my gfz house”, and a little later, “Anyways cyaaaaahaha”.

[6] In explanation, Mr Taumalolo said that he believed that the protection order was no longer valid, and that it had only been in force when he was on bail.

[7] The two charges of failing to answer bail involved Mr Taumalolo failing to appear at the Auckland District Court on two occasions:

(a) on 30 June 2015, for a monitoring appearance; and

(b)on 21 December 2015, when the discharge without conviction application was first scheduled to be heard.

District Court judgment

[8] Judge Fitzgerald set out the relevant…

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: [2016] NZHC 1525
Decision Date: 6 July 2016

CaseChat Overview and Summary

Simione Taumalolo appealed a decision given by Judge A J Fitzgerald in the District Court at Auckland on 13 April 2016. Mr Taumalolo pleaded guilty to contravening a protection order and two charges of failing to answer bail. He applied to be discharged without conviction under s 106 of the Sentencing Act 2002. Judge Fitzgerald refused that application. Rather he convicted Mr Taumalolo on the charge of contravening the protection order and ordered him to pay $500 emotional harm reparation to the victim. He convicted and then discharged him for the breaches of bail. Mr Taumalolo appealed Judge Fitzgerald’s decision not to grant discharges without conviction. He argued that the Judge erred in his assessment when he concluded that the direct and indirect consequences of the convictions were not out of all proportion to the gravity of the offending. Wylie J held that the appeal was dismissed. The consequences were speculative and unclear. There was insufficient evidence to support the assertions alleged on Mr Taumalolo’s behalf. In such circumstances, the Courts should be cautious. A discharge without conviction can only be granted if the consequences of a conviction are out of all proportion to the gravity of the offence. For the reasons he had given, he did not consider that it can be said that the consequences were out of all proportion to the gravity of the offence. The threshold requirements set out in s 107 of the Act were not met.

Orders