Tuhi v Police - [2019] NZHC 2046

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-18

[2019] NZHC 2046

BETWEEN
TATYANA TUHI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: on the papers

Counsel:

E R Fairbrother QC for the Appellant C R Stuart for the Respondent

Judgment:

20 August 2019

JUDGMENT OF CULL J

[1] Ms Tuhi appeals against her conviction and sentence, having pleaded guilty to a charge of wounding with reckless disregard, at the conclusion of the evidence at a Judge alone trial in the Hastings District Court on 18 February 2019. A conviction was entered, and on 5 April 2019, Ms Tuhi was sentenced to 12 months’ intensive supervision. She was also given a first strike warning.

[2] Of the five grounds of appeal filed, the police accept the validity of one ground, namely, that Ms Tuhi should have been informed by her counsel of the opportunity to seek a discharge without conviction and that an application should have been made. On that basis, the Crown respectfully submits that the appeal should be allowed on that issue alone and without prejudice to the other grounds of appeal.

[3] Ms Tuhi’s presently-instructed counsel supports the submission of the Crown, on the basis that:

TUHI v NEW ZEALAND POLICE [2019] NZHC 2046 [20 August 2019]

(a)Ms Tuhi’s sentence appeal be allowed, on the papers;

(b)the matter be returned to the District Court for the hearing of an application for discharge without conviction under s 106 of the Sentencing Act 2002; and

(c)Ms Tuhi’s conviction appeal rights are not prejudiced, should the application for a discharge without conviction be dismissed.

[4] By consent, I have allowed Ms Tuhi’s appeal and directed that the matter be remitted to the District Court for the hearing of an application for discharge without conviction under s 106 of the Sentencing Act. My reasons follow.

Background

[5] Ms Tuhi pleaded guilty to a charge of wounding with reckless disregard.1 She was 19 at the time of the offending and has a one year old child. She has no prior convictions. Ms Tuhi is of Ngāti Kahungunu iwi, and lives in a supportive living environment where she attends the Teen Parent Unit at William Colenso College.

[6] The offending took place on the night of 28 April 2018. Ms Tuhi had gone over to a friend’s house in the early hours of the following morning in search of another friend. Her friend invited her in, and they went to his bedroom. Other relatives and friends were drinking in the house at the time.

[7] After Ms Tuhi and her friend had been in his room for about 30 minutes, a group of those drinking in the lounge came into the room. One of these people, known as Isaac, attempted to playfully jump on Ms Tuhi’s friend. When Ms Tuhi and her friend asked the group to leave, Isaac became angry. He started yelling and swearing at Ms Tuhi, asking her to leave. A verbal…

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: [2019] NZHC 2046
Decision Date: 20 August 2019

CaseChat Overview and Summary

In the case of Tuhi v Police, the appellant, Tatyana Tuhi, appealed against her conviction and sentence for wounding with reckless disregard, which she pleaded guilty to at a Judge alone trial in the Hastings District Court. The appeal was heard in the High Court of New Zealand, Napier Registry, on the papers. Tuhi's appeal was supported by her presently-instructed counsel, who agreed with the Crown that the appeal should be allowed on the issue of counsel's failure to inform Tuhi of the opportunity to seek a discharge without conviction and make an application for it. The Crown and Tuhi's counsel submitted that the conviction, sentence, and first strike warning should be quashed, and the matter be remitted back to the District Court to consider an application for discharge without conviction under s 106 of the Sentencing Act 2002.

The court found that there had been a miscarriage of justice, as it was accepted by the Crown that Tuhi's counsel failed to inform her and/or make an application for a discharge without conviction. The court allowed the appeal on the issue of counsel's failure to pursue a s 106 application for Tuhi. Under s 232 of the Criminal Procedure Act, the appeal was allowed on that ground, and the other grounds of appeal were treated as withdrawn. The conviction, sentence, and first strike warning were quashed, and the case was directed to be remitted back to the District Court to determine whether Tuhi should be discharged without conviction under s 106 of the Criminal Procedure Act 2011. Depending on the outcome in the District Court, Tuhi may, if necessary, pursue other grounds of appeal.

Orders