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 fight broke out between the two. Ms Tuhi alleges Isaac threw a beer bottle at her in this skirmish. Isaac denies this. In any event, the other men in the room took Isaac out of the room. This left Ms Tuhi alone in the room with Isaac’s partner, the victim in this matter.

1      Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.

[8]                The skirmishing continued between Ms Tuhi and the victim. They were both yelling and swearing at one another. It is common ground that the victim pushed Ms Tuhi on the shoulder, causing her to fall back against the bed. She then reached down and grabbed or pulled Ms Tuhi’s hair. Ms Tuhi pulled the victim’s hair in retaliation and the two continued to scuffle.

[9]                Ms Tuhi then picked up a bottle and threw it at the victim. She says it was a quick reaction without any thought other than for her own safety. The bottle hit the victim in the head and caused a gash to the left-side of her head. Soon after, Ms Tuhi left the house. She was later charged with wounding with intent, though this was amended to wounding with reckless disregard by the Judge in the District Court.

The appeal

[10]            Ms Tuhi initially pleaded not guilty to the charge, but later pleaded guilty when the charge was amended to wounding with reckless disregard. Ms Tuhi asserts she did so on her lawyer’s advice. Her lawyer admits this. It is common ground that he did not discuss her option to proceed to verdict as an alternative to pleading guilty. Ms Tuhi was then sentenced to 12 months’ intensive supervision and given a first strike warning.

[11]            Ms Tuhi appeals against her conviction and sentence. The grounds of appeal largely relate to issues regarding competence of trial counsel. In particular:

(a)the defence of self defence was not adequately put to the Court, and character and propensity evidence was available but not called.

(b)Ms Tuhi was not informed of her right to elect jury trial on the charge and that she would have availed herself of that opportunity given the chance.

(c)Ms Tuhi has also provided a full narrative of her version of events in relation to the offending which is not entirely consistent with what she said at trial. She has provided an explanation for that.

(d)There are other matters regarding poor contact with trial counsel, an allegation that counsel failed to take a proper brief of evidence from her, and miscommunication regarding when the trial was taking place.

(e)Finally, it is submitted that Ms Tuhi’s counsel failed to make an application for a discharge without conviction.

[12]            Ms Tuhi’s former counsel has provided an affidavit to the Court and does not accept many of the allegations made by Ms Tuhi on appeal. However, the circumstances relating to the entry of Ms Tuhi’s guilty plea and his decision not to apply for a discharge without conviction correspond with Ms Tuhi’s version of events.

The parties’ positions

[13]            Given Ms Tuhi’s personal circumstances, the police accept that she should have been informed of the opportunity to seek a discharge without conviction and that an application should have been made. The police submit that the appeal should be allowed on that issue alone and without prejudice to the other grounds of appeal.

[14]            Both parties submit that the conviction, sentence and first strike warning should be quashed and that the matter be remitted back to the District Court to consider an application pursuant to s 106 of the Sentencing Act 2002 (the Act). It is necessary for the trial judge to consider the s 106 application as there were no factual findings following the conclusion of the evidence or at sentencing that would allow any meaningful assessment of the gravity of the offending at this stage.

[15]            Once Ms Tuhi’s s 106 application has been determined, and depending on that outcome, Ms Tuhi may pursue other grounds of appeal.

Decision

[16]            I am satisfied that there has been a miscarriage of justice in these circumstances. It has been accepted by the Crown that of the five grounds advanced by Ms Tuhi, her counsel failed to inform her and/or make an application for a discharge without conviction. In these circumstances, I am satisfied that the appropriate course

is to allow the conviction and sentence appeals; quash the conviction, sentence, and first strike warning; and remit the matter to the District Court, under ss 233(3)(e) and 251(2)(c) of the Criminal Procedure Act 2011. In that way, the District Court may determine Ms Tuhi’s s 106 application.

[17]            By consent, this appeal is therefore allowed on the issue of counsel’s failure to pursue a s 106 application for Ms Tuhi. Under s 232 of the Criminal Procedure Act, I am allowing the appeal on that ground, and I am, as Mr Fairbrother suggests, treating the other grounds of appeal as withdrawn. Depending on the outcome in the District Court, Ms Tuhi may, if necessary, pursue other grounds of appeal.

Result

[18]The appeals against conviction and sentence are allowed.

[19]Ms Tuhi’s conviction, sentence, and first strike warning are quashed.

[20]            I direct that this case be remitted back to the District Court to determine whether Ms Tuhi should be discharged without conviction under s 106 of the Criminal Procedure Act 2011.

Cull J

Solicitors:

Elvidge & Partners, Napier for the Respondent