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 respondentJudgment:
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…
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- [2017] NZHC 3096
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