Tupu v Police - [2014] NZHC 743

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000001 [2014] NZHC 743

GABRIELLE ETEVISE TUPU

v

NEW ZEALAND POLICE

Hearing: 2 April 2014

Appearances: B P Kilkelly for Appellant
CER Power for Respondent

Judgment: 9 April 2014

JUDGMENT OF DUNNINGHAM J

[1] This is an appeal against a decision of the District Court given on

20 December 2013 declining to discharge the appellant, Ms Tupu without conviction, under s 106 of the Sentencing Act 2002.

[2] The notice of appeal asserts that the Judge erred in finding that the consequences of conviction would not be out of all proportion to the gravity of the offence, and also in not exercising his discretion to discharge the appellant without conviction.

Background

[3] The appellant was charged with injuring with intent to injure under s 189(2)

of the Crimes Act 1961.

[4] The incident occurred at about 4.00 am on Sunday 25 August 2013, when she and a co-offender were in a bar in The Octagon, Dunedin. The appellant and co-

TUPU v NEW ZEALAND POLICE [2014] NZHC 743 [9 April 2014]

defendant were sitting with the victim when words were exchanged and as a result both the appellant and her co-defendant hit the victim. The victim defended herself and the appellant used both hands to push the victim backwards into her seat and against the wall. The appellant then grabbed the victim by her hair and dragged her forward onto the floor, where the victim lay face down. The appellant then held the victim by her hair, lifted the victim’s head up and shoved her face into the floor. Although both the appellant and her co-offender were then restrained, further aggression ensued where the appellant grabbed the victim’s hair and struck the victim several times in the back of the head. The appellant was then restrained for a second time, but she broke away, grabbed the victim by the hair for a third time and struck the victim in the back before being restrained again.

[5] As a result of the assault, the victim received a number of injuries. She had a large patch of hair torn from the fringe area of her head and her whole scalp was left sore. She had sore fingers from fingernails being broken and a numb right middle finger. Her nose and temple were sore and she suffered a bruise to the left side of her lower lip. She also suffered scrapes and bruises to her knees.

[6] The victim suffered a number of effects from the offending in addition to the injuries she suffered. She experienced a fear of persons of Pacific Island descent, panic attacks, anxiety and sleep deprivation. She suffered self-esteem and confidence issues and did not want to be touched. She also suffered financial costs because she had 10 days off work as a result of the assault and embarrassment at being assaulted when she was 31 years of age.

The District Court decision

[7] The District Court Judge noted that…

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 Tupu v Police

Details

AGLC: Tupu v Police [2014] NZHC 743
Case: [2014] NZHC 743
Decision Date: 9 April 2014

CaseChat Overview and Summary

The appellant, Ms Tupu, appeals against the decision of the District Court to decline her application for discharge without conviction under s 106 of the Sentencing Act 2002. The appellant was charged with injuring with intent to injure under s 189(2) of the Crimes Act 1961. The appellant was involved in an assault on a victim in a bar, where she struck the victim several times in the back of the head, causing significant injuries. The District Court Judge declined to discharge the appellant without conviction, finding that the consequences of conviction would not be disproportionate to the gravity of the offence.

The legal issues before the court were whether the District Court Judge correctly applied the test under s 107 of the Sentencing Act 2002 in deciding whether the consequences of conviction would be out of all proportion to the gravity of the offence and whether the Judge should have exercised his discretion to discharge the appellant without conviction under s 106. The court must consider three factors when determining whether the consequences of conviction are disproportionate to the gravity of the offence: the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offence. The court may also exercise its residual discretion to grant a discharge if the consequences are out of all proportion.

The court found that the District Court Judge incorrectly placed weight on the need to convict to ensure that the Air Force was properly informed of the circumstances of the incident. The court held that the full circumstances of the matter had been drawn to the attention of the Air Force, and the outcome of the restorative justice conference was significant in ameliorating the gravity of the offending. The court also found that the Judge understated the consequences of a conviction, which included a certain consequence of a year's stand-down before joining the Air Force and the real prospect of being precluded from overseas postings if convicted. The court concluded that the consequences of conviction were disproportionate to the gravity of the offending.

The appeal was allowed, and the appellant was discharged without conviction. An order was made quashing the conviction and the sentence of 300 hours community work which was imposed in the District Court on 20 December 2013.

Orders