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Tini v Police

Tini v Police

Case [2013] NZHC 2143 22 August 2013

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-197 [2013] NZHC 2143

BETWEEN TAGIILIMA TINI Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 August 2013

Counsel:

W M Ryan for the Appellant
A Boberg for the Respondent

Judgment:

22 August 2013

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 22 August 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors / Counsel:
Mr W M Ryan, Barrister, Auckland
Ms A Boberg, Meredith Connell, Office of the Crown Solicitor, Auckland

TINI v POLICE [2013] NZHC 2143 [22 August 2013]

[1] The appellant appeals against a sentence of 7 months imprisonment for indecent assault of a girl aged 12.1 The principal submissions for the appellant are that the starting point of 10 months imprisonment was too high and that the Judge’s decision declining home detention was wrong.

The facts

[2] The appellant pleaded guilty. The offence occurred in October 2011. The

Judge summarised the facts, taken from the police summary of facts, as follows:

[2] The summary of facts discloses that at the time of this offence you were 28 years of age and a part-time courier driver. The victim was 12 years old at the time and attending intermediate school in Howick. At 7.15 am on the day in question the victim was walking along the road to catch a bus to school. She was in her school uniform and walking alone. You stopped the courier van and went to talk to her. You asked her if she would like a ride and she said, “No.” You got out of your vehicle and approached her. You placed your hand on her shoulder and said, “Come, I’ll drop you off.” The victim was frightened and got into the front seat of your vehicle. You commenced driving the victim towards her school in Howick. You asked for her hand, she put her hand out and you reached over to hold it. She then pulled her hand away and placed her hands in the pockets of her skirt. You reached out and touched her school logo on the left side of her sweatshirt, and then reached over and rubbed her right breast on the outside of her sweatshirt. She asked you to stop which you did. You then asked her a number of questions, some of which were of a personal nature, and as you dropped her at the school you asked her if she wanted you to pick her up after school.

[3] When you were spoken to by the police you said the victim had got into your vehicle willingly, and that you thought she was older than she was.

[3] The Judge summarised the victim impact statement as follows:

[4] As a result, your offending has had a significant affect on the victim. She was scared and stressed, and is taking herbal supplements to assist with stress and anxiety. She has had to attend counselling, and the victim…

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.

Continue reading Tini v Police

Details

AGLC: Tini v Police [2013] NZHC 2143
Case: [2013] NZHC 2143
Decision Date: 22 August 2013

CaseChat Overview and Summary

In Tini v Police, the appellant, Tagiilima Tini, appealed against a sentence of 7 months imprisonment for indecent assault of a 12-year-old girl. The primary arguments were that the starting point of 10 months imprisonment was too high and that the Judge’s decision to decline home detention was erroneous. The court had to decide whether the starting point and the decision to decline home detention were legally sound.

The court found that the starting point of 10 months imprisonment, while seemingly high when considering only the indecent act, was justified when taking into account other aggravating factors such as the predatory nature of the offence and the significant impact on the victim. The court emphasised that sentencing involves a holistic assessment of the offence and its context, rather than an isolated evaluation of individual facts. Moreover, the court upheld the Judge's discretion in declining home detention, noting that it is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending. The court concluded that the Judge did not err in applying the relevant principles and that the sentence was appropriate given the circumstances.

The final orders of the court were to dismiss the appeal, thereby affirming the District Court's sentence. The Judge's assessment of the starting point and the decision on home detention were both upheld as legally sound and appropriate in the context of the case.

Orders