Tumahai v The King - [2023] NZCA 431

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA276/2022
[2023] NZCA 431

BETWEEN	DANIELLE HIRA TUMAHAI Appellant
AND	THE KING Respondent

Hearing:	29 August 2023
Court:	Courtney, Whata and Downs JJ
Counsel:	M J Taylor-Cyphers for Appellant A M McClintock for Respondent
Judgment:	7 September 2023 at 11.30 am

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence is granted.
BThe appeal is allowed and the convictions are set aside.
CThe case is remitted to the District Court for redetermination.
DAny question of bail is remitted to the District Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Downs J)

Introduction

Danielle Tumahai pleaded guilty to one charge of supplying a small amount of methamphetamine, and a second charge of offering to supply a similarly small amount of that drug. She was convicted and sentenced to a term of 15 months’ intensive supervision.[1] Ms Tumahai appeals on the basis that given the unusual circumstances of her case, she ought to have been discharged without conviction. A Court may discharge a defendant without conviction if, and only if, the “direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.[2] Ms Tumahai does not challenge her sentence.
[1]R v Tumahai [2022] NZDC 10741.
[2]Sentencing Act 2002, s 107.
In this brief judgment, we explain why the appeal is allowed and the case remitted to the District Court for redetermination.

Background

Between 22 May and 9 June 2020, Ms Tumahai offered to supply at least 2.75 grams of methamphetamine. Between 27 and 29 May 2020, Ms Tumahai supplied at least 1 gram of the same drug.
Ms Tumahai was charged on 29 October 2020. She pleaded guilty on 12 November 2021, following plea negotiations. Sentencing was scheduled for 4 March 2022. Ms Tumahai sought, and was granted, an adjournment until 9 May 2022 to facilitate her completion of a rehabilitative programme.
On 9 May 2022, Ms Tumahai sought another adjournment on the basis her programme had not finished. The Crown offered no opposition to an adjournment. Judge A-M Skellern declined an adjournment and sentenced Ms Tumahai to a term of 15 months’ intensive supervision.
Ms Tumahai’s lawyer had been given permission to appear by VMR at sentencing. However, that technology was not available in the courtroom. Consequently, her lawyer appeared by telephone albeit, we gather, over a very poor line, such that she found it difficult to follow what was happening.
Ms Tumahai’s lawyer had signalled an application would be made for a discharge without conviction under s 106 of the Sentencing Act 2002. However, no such application or supporting evidence was ever filed. So, while the Judge had what she described as a “very thorough” pre-sentence report,[3] the Judge did not have the benefit of any evidence about the offending, Ms Tumahai’s background, or her rehabilitative progress to that point. Nor did the Judge have any evidence about the potential impact of a conviction on Ms…

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 Tumahai v The King

Details

AGLC: Tumahai v The King [2023] NZCA 431
Case: [2023] NZCA 431
Decision Date: 7 September 2023 at 11.30 am

CaseChat Overview and Summary

Danielle Tumahai appealed against her convictions for supplying and offering to supply methamphetamine, arguing she should have been discharged without conviction. She contended that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The Court of Appeal considered the circumstances of the offending and Ms Tumahai's background, including her abusive relationship, drug addiction, and efforts to rehabilitate. The appeal hinged on whether the sentencing process miscarried due to the absence of an application for a discharge without conviction and ineffective representation at sentencing.

The Court found that the sentencing process indeed miscarried because Ms Tumahai, who wanted to be discharged without conviction, was not given the opportunity to make such an application. Additionally, her lawyer was unable to effectively represent her due to technical difficulties with virtual magistrate representation, which led to a poor telephone connection during the sentencing hearing. The Court accepted that Ms Tumahai was not at fault for the absence of the application and the fresh evidence she provided was credible. The Court concluded that there was a real possibility the outcome might have been different had the process not miscarried. Consequently, the appeal was allowed, the convictions were set aside, and the case was remitted to the District Court for redetermination. The Court anticipated that both parties would provide additional evidence to assist the District Court in making its decision.

Orders