Tuumaga v Police - [2015] NZHC 1695

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000123 [2015] NZHC 1695

BETWEEN
NELI DOMINIQUE TUUMAGA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 July 2015

Appearances:

Mark Wotherspoon for the Appellant
Rosemary Gibson for the Respondent

Judgment:

22 July 2015

JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by me on 22 July 2015 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

TUUMAGA v NEW ZEALAND POLICE [2015] NZHC 1695 [22 July 2015]

Introduction

[1] The appellant, Neli Dominique Tuumaga, pleaded guilty in the District Court at Auckland on one charge of male assaults female.1 Judge Paul declined Mr Tuumaga’s application for a discharge without conviction. He convicted Mr Tuumaga and sentenced him to 60 hours’ community work. Mr Tuumaga now appeals that conviction and sentence. He argues that a discharge without conviction should have been granted under s 106 of the Sentencing Act 2002 (“the Act”) or,
alternatively, the sentence was manifestly excessive and a lesser sentence should have been imposed.

Factual background

[2] Mr Tuumaga does not accept certain aspects of the summary of facts. However, the compass of those areas of dispute is relatively narrow and, in my view, has little or no effect on an assessment of the totality of the offending. The account set out below is drawn from what I understand are the undisputed assertions of fact.

[3] On the morning of 7 June 2014, Mr Tuumaga was at home with his then partner, the victim in this case, and two flatmates. An argument broke out between the couple when Mr Tuumaga’s partner threatened to show an expired Police Safety Order (“PSO”) against Mr Tuumaga to his employer and friends. This angered Mr Tuumaga who threw the victim onto the bed and held her down by her wrists and applied his body weight over her.

[4] There then followed a tussle during which Mr Tuumaga hit the victim’s head with his elbow. The victim shouted at him to get off her. He bit her on her left side in an attempt to get her to drop the PSO which she was holding. The bite caused her to scream loudly, thereby alerting the flatmates.

[5] When the flatmates entered the room, the victim escaped and ran downstairs towards the front door, still clutching the PSO. Mr Tuuamaga caught up with her
and forced her into the bathroom, closing and locking the door behind him. He then

1 The maximum penalty for this offence is two years’ imprisonment. See Crimes Act 1961,
s 194(b).

stood over her and, with an open hand, hit her hands and kicked at her legs. He pulled her hand out from behind her back and managed to retrieve the PSO from her. The victim then called the Police.

[6] As a result of the attack, the victim suffered some pain from where

Mr Tuumaga bit her. She was distraught and extremely upset.

District Court decision

[7] Judge…

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 Tuumaga v Police

Details

AGLC: Tuumaga v Police [2015] NZHC 1695
Case: [2015] NZHC 1695
Decision Date: 22 July 2015

CaseChat Overview and Summary

The appeal in Tuumaga v Police concerns the conviction and sentence imposed on Neli Dominique Tuumaga by the Auckland District Court. The appellant, Tuumaga, pleaded guilty to male assaults female and appealed against both his conviction and the sentence of 60 hours of community work. The primary issues before the court were whether a discharge without conviction should have been granted under s 106 of the Sentencing Act 2002, and if not, whether the sentence imposed was manifestly excessive.

Moore J, delivering the judgment, first considered the appropriate approach to the appeal against the refusal to grant a discharge without conviction. The court must assess the gravity of the offence and the direct and indirect consequences of conviction to determine if they are out of all proportion to the gravity of the offence. The appeal against a refusal to grant a discharge is by way of re-hearing, requiring the appellate court to make its own assessment.

Moore J concluded that the offending was moderately serious, involving sustained actual violence and a breach of trust. While Tuumaga's personal circumstances, including his previous good character and guilty plea, were mitigating factors, they did not outweigh the seriousness of the offence. The court found that the consequences of conviction, while potentially inconvenient, were not out of all proportion to the gravity of the offence. Therefore, the appeal against the refusal to grant a discharge without conviction was dismissed.

Next, the court examined the sentence appeal, considering whether there was an error in the sentence imposed and if a different sentence should be imposed. The court found that the sentence of 60 hours of community work was well within the acceptable range for the type of offending. The court concluded that the sentence did not represent a manifest excess and reflected a proper assessment of Tuumaga's personal circumstances. Consequently, the appeal against the sentence was also dismissed.

In summary, the appeal against both the conviction and the sentence was dismissed by Moore J, affirming the District Court's decision.

Orders