Tialata v Police - [2017] NZHC 3096

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-360 [2017] NZHC 3096

BETWEEN
JOSHUA TIALATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2017

Counsel:

Y Lee for appellant
D Houghton for respondent

Judgment:

11 December 2017

ORAL JUDGMENT OF KATZ J

Solicitors: Meredith Connell, Crown Solicitor, Auckland

TIALATA v NEW ZEALAND POLICE [2017] NZHC 3096 [11 December 2017]

Y Lee, Barrister & Solicitor, Auckland

Introduction

[1] Joshua Tialata pleaded guilty to a charge of indecent assault and was sentenced by Judge D J Sharp to 18 months’ imprisonment.1 His conviction was for a stage-2 offence,2 under the three strikes regime. As a result, Mr Tialata must serve the full term of his sentence and must not be released before its expiry.3

[2] Mr Tialata appeals against his sentence, primarily on the ground that the

Judge’s decision not to grant home detention was in error.

[3] Section 80A(4) of the Sentencing Act 2002 (“Act”) requires the Court to specify the home detention address when sentencing an offender to home detention. Mr Tialata does not currently have an approved home detention address available. Rather, he hopes that if his appeal is successful he will be able to arrange accommodation in a halfway house or rehabilitation facility in order to undertake a long-term rehabilitation programme. Mr Tialata appears to be a chronic user of synthetic cannabis and possibly also other drugs.

[4] I proceed on the basis that the relief sought in the appeal is for leave to be granted pursuant to s 80I of the Act for Mr Tialata to apply for cancellation of his sentence of imprisonment and substitution of a sentence of home detention, in the event that a suitable home detention address can be found.

Facts

[5] Judge Sharp summarised the relevant facts as follows:

[3] … at about 6 o’clock in the evening, there was a female walking down Canal Road in Avondale. She had been walking down the road and she noticed a male following her. She continued walking down the street and noticed that you had been following her for a period of time. Then you grabbed the victim from behind and put both your hands between the tops of her thighs near her vagina in an attempt to pull the victim’s trousers down. At this point the victim has started to scream and turn around and you have grabbed her around the torso and she has ended up on the ground. You were lying on top of her and she was still screaming. The victim felt you trying to get control of her then suddenly you have gotten up and ran away. The victim had minor injuries to her knees. …

1      Police v Tialata [2017] NZDC 21385.
2      Sentencing Act 2002, definition of “stage-2 offence” in s 86A.
3      Sentencing Act 2002, s 86C(4).

District Court Decision

[6] The Judge noted that the attack was both premeditated and violent. There were no…

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.

Keep reading for free

Create a free CaseChat account to read Tialata v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 3096
Decision Date: 11 December 2017

CaseChat Overview and Summary

Joshua Tialata appeals against his sentence of 18 months imprisonment imposed by Judge Sharp for indecent assault under the three strikes regime. The appeal focuses on the Judge’s decision not to grant home detention. The appellant argues that the Judge did not adequately consider the possibility of restorative justice processes and the appellant’s rehabilitative prospects. The court found that the Judge did not err in deciding not to grant home detention. The court held that the Judge was entitled to conclude that the purposes and principles of sentencing could not be achieved in a way other than by imposing a sentence of imprisonment. The seriousness of the offending, the appellant’s history of non-compliance with community-based sentences, and the high risk of reoffending and causing serious harm all justified a sentence of imprisonment. The appeal is dismissed.

Orders