Tavai v Police - [2023] NZHC 2077

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-108

[2023] NZHC 2077

BETWEEN
DYLAN TYSON AMATAGA TAVAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 August 2023

Appearances:

J M Campbell for Appellant

G E R Alloway for Respondent

Judgment:

7 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 7 August 2023 at 10.40 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

TAVAI v NEW ZEALAND POLICE [2023] NZHC 2077 [7 August 2023]

Introduction

[1] Dylan Tavai was sentenced to 21 months’ imprisonment in the District Court on 13 June 20231 on a charge of impeding breathing2 and a charge of breaching a protection order.3 He appeals his sentence of imprisonment, saying that, in all the circumstances, a sentence of home detention was the least restrictive sentence that was appropriate.

Facts

[2] Mr Tavai and his partner, the victim in this case, have been in a relationship for around 14 years and have several children between them, though these children are not currently in their care. There has been a protection order in place in favour of the victim since 2009.

[3] In early December 2022, an argument developed between Mr Tavai and the victim. It continued over the course of the night and, the next morning, Mr Tavai threatened to shoot himself if the victim left the address as she intended.

[4] During the escalating argument, Mr Tavai stood in front of the victim and twice placed his hands around her throat. The second time, he applied sufficient pressure to the front of her throat such that she could not breathe.

District Court decision

[5] The Judge, in setting the starting point, noted the particular harm associated with strangulation offending, especially the psychological harm. She considered the victim to have been a vulnerable person, and the offending to have been aggravated by virtue of the violence used against her in the past by Mr Tavai.

[6] A starting point of 24 months was adopted. An uplift of four months was applied to reflect the breach of the protection order.

1      New Zealand Police v Tavai [2023] NZDC 12004.
2      Crimes Act 1961, s 189A; maximum penalty 7 years’ imprisonment.
3      Family Violence Act 2018, s 112; maximum penalty 3 years’ imprisonment.

[7] The Judge referred to Mr Tavai’s recognition that violence and drug use were problematic aspects of his relationship. In particular, he struggled with methamphetamine abuse. The Judge congratulated Mr Tavai on engaging with a Salvation Army addiction service.

[8] The Judge allowed a discount of 20 per cent for Mr Tavai’s guilty pleas and five per cent for his rehabilitative efforts. The 28-month sentence was therefore reduced to 21 months.

[9] Turning to whether home detention should be imposed, the Judge acknowledged Mr Tavai should have the least restrictive sentence possible and one which facilitated his rehabilitation. Against this, the sentence needed to make clear the offending was…

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: [2023] NZHC 2077
Decision Date: 7 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Dylan Tyson Amataqa Tavai appeals against his imprisonment sentence for impeding breathing and breaching a protection order. Tavai contends that home detention was the least restrictive sentence appropriate for his circumstances. The District Court Judge had sentenced him to 21 months imprisonment, considering the gravity of the offences and Tavai's history of violence against his partner.

The central issue in this appeal was whether the District Court erred in not imposing a sentence of home detention instead of imprisonment. Tavai's counsel argued that the imprisonment undermined his client's rehabilitative efforts, and that home detention was the appropriate sentence. On the other hand, the respondent argued that imprisonment was necessary to protect the victim, ensure Tavai's rehabilitation, and denounce the offending.

The High Court found that the District Court judge had reasonably balanced the need for rehabilitation and protection of the victim. The Court held that Tavai's history of violence and drug use made it necessary for him to be in a structured environment to address his issues effectively. The Court also noted that Tavai's history of resuming his troubled relationship with the victim, despite court intervention, made it difficult to trust his promise of compliance with a non-association clause. The appeal was declined as the High Court was not satisfied that the District Court judge had erred in determining that imprisonment was the least restrictive sentence.

The High Court declined the appeal, upholding the District Court's decision to sentence Tavai to imprisonment for 21 months.

Orders