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…

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 Tuimavave v Police

Details

AGLC: Tuimavave v Police [2019] NZHC 470
Case: [2019] NZHC 470
Decision Date: 18 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Tuimavave v Police was heard and decided on 18 March 2019. The appellant, Cole Tuimavave, appealed the decision of the Waitākere District Court, which had refused his application for a discharge without conviction under sections 106 and 107 of the Sentencing Act 2002. Tuimavave had pleaded guilty to assaulting his wife and was sentenced to 40 hours of community work and eight months of supervision. The legal issues before the court were whether the District Court judge had made a material error in considering an unsigned victim impact statement and in assessing the consequences of a conviction on Tuimavave's employment.

The court found that the District Court judge had not made a material error in considering the unsigned victim impact statement. The judge had acknowledged that the victim stated there had been no other physical violence, and the court did not believe the judge relied on the statement in assessing the seriousness of the assault. Regarding the consequences of conviction, the court held that the letter from Tuimavave's employer did not establish a real and appreciable risk of losing his job or facing difficulties in finding another job. The court compared the consequences in this case to those in Oxenham v Police and Mallon v Police, where the consequences of conviction were more severe.

The court declined the appeal, finding that there was no material error resulting in a miscarriage of justice. The court did not consider the consequences of conviction to be out of all proportion to the gravity of the offence, and therefore, the refusal to grant a discharge without conviction was upheld.

Orders