Tupu v Police

Case [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…

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Tupu v Police [2014] NZHC 743
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[2014] NZHC 743
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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