Tuimavave v Police

[2019] NZHC 470

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-435

[2019] NZHC 470

BETWEEN

COLE TUIMAVAVE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 March 2019
Appearances:	J C Harder for the Appellant Y Y Wang for the Respondent
Judgment:	18 March 2019

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:

J C Harder, Barrister, Auckland Meredith Connell, Auckland

TUIMAVAVE v NEW ZEALAND POLICE [2019] NZHC 470 [18 March 2019]

What happened?

[1]                  On what must have been Saturday 28 April 2018, Mr Cole Tuimavave got into an argument with his wife at their home in West Harbour, Auckland. He pushed her down on a bed and threw a pillow at her. He struck her in the face with another pillow when she stood up. She pushed him. He punched her in the mouth with a closed fist, grabbed her and threw her on the ground, holding her there with a hand on her neck until interrupted by their daughter crying. His wife suffered a cut and swollen lip and bruising to her neck. Mr Tuimavave pleaded guilty to one charge of male assaults female.

The sentencing

[2]                  The proceeding was considered in what Mr Harder fairly described as the nuanced and sophisticated regime of the Family Violence Court in Waitākere. At a certain point, Mr Tuimavave applied for a discharge without conviction under ss 106 and 107 of the Sentencing Act 2002 (the Act).

[3]                  On 19 December 2018, in the Waitākere District Court, Judge K J Glubb refused Mr Tuimavave’s application.1 He identified the aggravating factors of the offending to be: the extent of the violence; the domestic nature of the relationship; the breach of trust of offending in the victim’s home; her vulnerability; and the impact on her.2 He identified the mitigating factors as being: the guilty plea; a very limited criminal history; completion of a 20-week anger management course; to which he self- referred, and an apology and attendance at restorative justice.3

[4]                  Judge Glubb considered the offending was in the low to moderate range.4 He was not satisfied there was a real and appreciable risk of Mr Tuimavave losing his employment or of an impact on his ability to travel.5 He was not satisfied the consequences of the conviction would be out of all proportion to the gravity of the

1      New Zealand Police v Tuimavave [2018] NZDC 26651

2      At [3]-[4].

3 At [6].

4 At [11].

5 At [16].

offending. Judge Glubb convicted Mr Tuimavave and sentenced him to 40 hours of community work and eight months of supervision.6

The relevant law of appeal

[5]                  A discharge without conviction is only possible, under s 107 of the Act, if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” and it exercises its discretion to discharge without conviction under s 106. Mr Tuimavave appeals the refusal to grant him a discharge without conviction.

[6]                  This is an appeal, by way of rehearing, against conviction and sentence under s 232(2) of the Criminal Procedure Act 2011. I must allow the appeal if satisfied a miscarriage of justice has occurred by virtue of a material error in entering the conviction or in applying s 107.7 Otherwise I must dismiss the appeal. A miscarriage of justice is defined to mean “any error, irregularity, or occurrence in or in relation to or affecting the trial” (including a proceeding in which the appellant has pleaded guilty) that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.

Submissions

[7]  Mr Harder, for Mr Tuimavave, submits the Judge made two errors. First, he submits the Judge erred in making multiple references, inappropriately, to an unsigned victim impact statement, which contributed to overstating the offending. Second, he submits the Judge erred in concluding there was no real and appreciable risk of Mr Tuimavave losing his job as a plumbing apprentice because there were at least moderately serious employment consequences which might blight or seriously compromise his career. He submits the s 107 threshold has been met and Mr Tuimavave should be discharged without conviction. Ms Wang, for the Crown, submits there was no error and the appeal should be declined.

6 At [17].

7      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

Was there a material error resulting in a miscarriage of justice?

[8]                  Section 8(f) of the Act required Judge Glubb to take into account “any information provided to the court concerning the effect of the offending on the victim”. But, as Ms Wang concedes, it would have been better not to have referred to the irrelevant facts in this victim impact statement. The facts upon which sentencing is based are those in the agreed summary of facts. A victim impact statement, particularly unsigned, cannot bear that weight. But, here, unlike the case of Parker v Police, there is nothing to suggest to me that the Judge relied on the suggestion in the victim impact statement that there had been previous violent incidents.8 He explicitly acknowledged the victim was saying, in an unchallenged affidavit, there had been no other physical violence.9 I do not consider Judge Glubb erred because I do not consider he relied on the victim impact statement in assessing the seriousness of Mr Tuimavave punching his own partner in the face in her own home and holding her down by the neck, partially in the presence of their young child.

[9]                  Nor do I consider he erred in assessing the consequences of conviction. The letter provided by Mr Tuimavave’s employer, stated a conviction would limit his progress and the employer would conduct an evaluation to assess his ongoing employment. That does not establish there is a real and appreciable risk of him losing his current job or not getting another one. It identified disadvantages, but they are not out of all proportion for this sort of assault. It explicitly involved the employer being willing to look behind a conviction which was not directly related to his job.

[10]              I accept Mr Tuimavave has undertaken a constructive path towards rehabilitation, to his credit, which will no doubt be considered favourably by his employer. The consequences of conviction were not nearly as real or appreciable as in the case of Oxenham v Police where there was a clear statement of intended termination of employment.10 Nor are they as real as in the case of Mallon v Police where an employee of a licensing trust was facing a second excess breath alcohol charge.11

8      Parker v Police [2016] NZHC 2524 at [14].

9 At [6].

10     Oxenham v Police [2015] NZHC 2156.

11     Mallon v Police HC Invercargill AP 76/95, 24 April 1996.

[11]I decline the appeal.

Palmer J