Tuumaga v Police
[2015] NZHC 1695
•22 July 2015
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 RespondentJudgment:
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 Paul considered the overall circumstances, including Mr Tuumaga being the subject of PSOs in the past, and the history of police call-outs to the couple’s address. While accepting there was no lasting injury to the victim, the Judge described the offending as “at least moderate”.2
[8] In relation to the application for a discharge without conviction, Judge Paul noted Mr Tuumaga’s concern that his plans for postgraduate travel and employment may be affected by a conviction. However, his Honour concluded these were inevitable consequences of a conviction for violence. Given the moderate level of violence involved, especially against the history of previous violence, the Judge concluded that the consequences were not out of all proportion to the seriousness of the offending and, as such, he declined to grant a discharge.
[9] The Judge was of the view that “a moderate punitive or deterrence type sentence is appropriate”,3 thus a sentence of 60 hours’ community work was imposed.
Appellant’s submissions
[10] Mr Wotherspoon, for Mr Tuumaga, submits that the Judge, in breach of s 24 of the Act, relied on unproven and challenged facts when determining both the application for discharge without conviction and the sentence which was imposed.
He claims these facts were challenged at the hearing.
2 Police v Tuumaga [2015] NZDC 7421 at [7].
3 At [10].
[11] Mr Wotherspoon also submits the fact that the relationship between Mr Tuumaga and the victim had ended was ignored. There was therefore no continuing threat or danger to the victim. The risk of re-offending has been eliminated, in Mr Wotherspoon’s submission.
[12] Furthermore, Mr Wotherspoon submits that the Judge wrongly placed the burden of proof on Mr Tuumaga to “make out” the future consequences. However, I note that it is now settled law that applicants for a discharge without conviction may be required to provide evidence of claimed consequences.4 I shall return to that topic later in this judgment. In any event, an appeal against a refusal to grant a discharge without conviction is by way of re-hearing. The Court on appeal is required to apply the test afresh and thus any criticisms of the Judge on this point are irrelevant to the
exercise engaged on this appeal.
[13] Mr Wotherspoon submits that the offending was not serious and was initiated by unlawful conduct on the part of the victim who refused to return the PSO to Mr Tuumaga, who was the legal owner of the document. The tussle which ensued was for the sole purpose of retrieving the document. Once Mr Tuumaga obtained possession of it, the altercation ended. Mr Wotherspoon disputes even the minor injuries described in the summary of facts, noting that Mr Tuumaga had never been violent in any previous relationship but responded violently in the present circumstances because the victim had been physically violent towards him on more than one occasion.
[14] Mr Wotherspoon submits this conviction will cause Mr Tuumaga significant difficulty in securing employment and travel plans “in the next two or three years”. He submits the offence, by its very name, implies offending involving domestic violence, a notion which attracts particular prejudice and censure.
[15] Thus Mr Wotherspoon submits the consequences of conviction are out of all proportion with the offending and the Court should impose the least restrictive
outcome, namely a discharge without conviction.
4 See for example Police v M [2013] NZHC 1101. But compare Harvey v Police HC Christchurch CRI-2007-409-234, 13 February 2008 at [13] where Fogarty J referred to the ability of the Court to take judicial notice of consequences and that “to that end formal evidence is not required”.
[16] Alternatively, Mr Wotherspoon submits that, if the Court is not inclined to discharge Mr Tuumaga without conviction, it should quash his sentence of community work and substitute it with an order that he come up for sentence if called upon or, alternatively, impose a fine or order reparation.
Crown submissions
[17] Ms Gibson, for the Crown, opposes the appeal noting, first, that an appeal against a decision not to order a discharge is by way of a re-hearing and thus any examination of possible error is irrelevant.
[18] Ms Gibson agrees with the Judge’s description of the offending as moderately serious. She submits it involved sustained actual violence. It also involved a breach of trust and was, plainly, deeply upsetting for the victim as is reflected in her victim impact statement. She submits that a conviction of male assaults female is serious and frequently leads to the imposition of sentences of imprisonment, noting that cases not substantially more serious than the present have attracted custodial sentences.
[19] Ms Gibson properly acknowledges that the offending is mitigated by Mr Tuumaga’s personal circumstances and, in particular, his previous good character and his guilty plea but submits that the sentence of 60 hours’ community work was well within the Judge’s sentencing discretion.
[20] On the question of future adverse consequences, Ms Gibson accepts these exist even if not supported by the evidence filed by Mr Tuumaga. However, in her submission, the consequences fall well short of being out of all proportion to the offending.
Discharge without conviction appeal
Approach to appeal
[21] Section 106 of the Sentencing Act 2002 gives the Court a discretion to discharge an offender without conviction. This discretion is subject to the test in s 107 being satisfied. That section provides:
“107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless 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.”
[22] When the s 107 test is met, the court then has a discretionary power to discharge an offender under s 106. However when the s 107 test is satisfied, this will usually result in a discharge.
[23] An appeal against a refusal to discharge is by way of rehearing, with the court hearing the appeal making a fresh assessment in accordance with its own opinion.5
The Court of Appeal in R v Hughes concluded that as the s 107 test is not discretionary; an appeal against the court’s decision is not an appeal against discretion.6 An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.
[24] The approach to be followed in applying the s 107 test is set out in Z (CA447/2012) v R, where Arnold J held:7
“[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge...”
[25] The abovementioned passage involves a three-step approach, whereby the court must:
(a) determine the gravity of the offence, having regard to both the aggravating and mitigating factors of the offence and also those of the
offender;
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
6 At [11].
7 Z (CA447/2012) v R [2012] NZCA 599 at [27].
(b)determine the direct and indirect consequences of conviction and whether they are out of all proportion to the gravity of the offending; and
(c) if (b) is answered in the affirmative, determine whether to exercise the residual discretion to grant a discharge
[26] What this approach requires is that the court must first determine the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offence and also to those factors which apply to the offender. The Court should then determine the direct and indirect consequences of conviction and determine whether they are out of all proportion to the gravity of the offending.
Analysis
[27] The first question is whether the Judge’s determination of step (b), which looks at the balancing of the seriousness of the offending and the consequences of conviction, was correct.
(a) The gravity of the offending
[28] The charge which Mr Tuumaga faced carries a maximum penalty of two years’ imprisonment. While the index offending is at the lower end of the range of seriousness across the spectrum of violence, it is still a relatively serious incident of male assaults female. The assault involved restraining the complainant both physically and by Mr Tuumaga locking himself in with the complainant (thereby detaining the victim and denying access to those who might have intervened), biting her, hitting her with an open hand and elbowing her in the head.
[29] While the complainant was not seriously hurt, the duration and sustained nature of the attack, as well as its context, increases its seriousness.
[30] As the Court of Appeal noted in R v Reihana, there is no tariff case for male assaults female. 8 The circumstances of its commission and of offenders can vary
8 R v Reihana CA143/03, 3 July 2003 at [43].
greatly. However, in offending which was less serious than the present, starting points in the vicinity of eight months’ imprisonment have been regarded as appropriate.9
[31] I accept Mr Wotherspoon’s submission that Mr Tuumaga is entitled to credit for his plea of guilty at the first opportunity, his previous good record and the fact that he has voluntarily attended a programme on domestic violence prevention. Furthermore, given the relationship is now at an end, the future risk to the victim posed by Mr Tuumaga is minimised. However, those factors, in my view, can be given only limited weight in the present exercise. I agree it would have been preferable if the Judge had not referred to the Police call-outs and the previous PSOs. However, I am satisfied that this reference did not materially affect the Judge’s overall decision not to discharge the appellant without conviction and, in any event, because this is a re-hearing, I can put this aspect to one side, which I do.
[32] Overall, I am satisfied that the end sentence of 60 hours’ community work was within the available range and, indeed, might have been higher.
(b) Direct and indirect consequences of conviction
[33] The likely consequences of conviction are to be weighed against the gravity of the offence. Mr Tuumaga advises he is shortly to resume his studies towards a Bachelor of Science degree. He has indicated he hopes to be a computer programmer and states that he would like to travel and live and work overseas “… possibly in the United States or Korea.” His ambition is to gain employment as a computer games programmer. He says he believes having a criminal conviction
will have a detrimental effect on his prospects of obtaining good employment.
9 Grayson v Police HC Hamilton CRI-2006-419-31, 6 April 2006. In that case, the offending involved a single slap to the face but also included associated charges of wilful damage. The defendant had previously been imprisoned for offences of violence.
[34] I accept that the difficulty of securing future employment is a general consequence of obtaining a criminal conviction. I also accept Mr Wotherspoon’s submission that “to prove things in the future is obviously impossible”.10
[35] In Tahitahi v Police, it was accepted that the obstacles in securing employment is a general consequence that may be weighed in the balance. In that case, Ms Tahitahi had been on a benefit seeking work for twelve months and presented evidence to show that she had been focused and conscientious in her attempts to find a job. Allan J held that the existence of the convictions (the offending involved throwing a rock at her ex-partner’s car window, breaking it as he drove out of the driveway) was “very real and important to her”. It was held that the difficulty Ms Tahitahi would have in finding work was out of all proportion to her offending.
[36] Of assistance to this case are the comments of Clifford J in Brunton v Police.11 There, his Honour declined to grant a s 106 discharge in the case of an 18 year old first year university student charged with drink driving, in circumstances where the offending was assessed to be at the lower end of seriousness. The appellant filed extensive evidence supporting his claim that if the conviction remained, the prospect of travelling to Canada, as part of his undergraduate studies,
would prove difficult, as well as his longer term goal of qualifying as a chartered accountant. Despite this, his Honour said:12
“The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often been seen as a universal consequence, and unless real evidence can be shown that a conviction would impede entry into another country such speculative consequences will not form the basis for a discharge without conviction.”
10 See too Harvey v Police HC Christchurch CRI-2007-409-236, 13 February 2008 at [13]: “It is very clear that Parliament intends the Court, when considering the application of s 107, to take judicial notice of direct and indirect consequences and to that end formal evidence is not required.”
11 Brunton v Police [2012] NZHC 1197.
12 At [16].
[37] With respect to his Honour, I agree. I am satisfied that, even in the absence of detailed and reliable evidence,13 travel and employment may be rendered more difficult for Mr Tuumaga. As this Court and others have previously observed in this context, it is inevitable there will be some negative consequences which flow from a conviction. However, it is far from clear whether Mr Tuumaga’s plans will be made substantially more difficult let alone impossible. Mr Tuumaga’s aspirations, at this
early stage, are to resume his tertiary studies from 2016. As his affidavit conveys, he has at least two more years of undergraduate study ahead of him. His future plans for postgraduate travel and employment are simply expressed as aspirational preferences and hopes. This is unsurprising given his age and the early stage of his tertiary education.
[38] As it stands, it cannot be said that the consequences of Mr Tuumaga’s
conviction are more than speculative or hypothetical.
(c) Balancing act
[39] On balance, I am not satisfied that the consequences of Mr Tuumaga’s conviction are out of all proportion to the offence. While not at the most serious end of the scale, the Judge’s description of the offending as moderately serious is accurate. Furthermore, domestic violence is a serious social issue in our society and the context of this offending is of concern.
[40] I accept the consequences for Mr Tuumaga may prove inconvenient but, at this stage, it is not possible to make any reliable assessment of the risks without venturing into the speculative and hypothetical.
[41] In all the circumstances, I am not satisfied that the consequences of conviction are out of all proportion to the gravity of the offence and, accordingly, the residual discretion under s 106 is not engaged. The appeal against conviction is
dismissed.
13 The following cases demonstrate that some evidence is necessary: Brunton, above n 11, at [16];
Han v Police [2012] NZHC 791; Police v M [2013] NZHC 1101 at [55].
Sentence appeal
[42] Mr Tuumaga also appeals, in the alternative, against the sentence of 60 hours’
community work.
Approach to appeal
[43] Section 250 of the Criminal Procedure Act 2011 provides that the Court may only allow an appeal against sentence if the Court is satisfied that:
(a) for any reason there was an error in sentence imposed conviction; and
(b) a different sentence should be imposed.
[44] It is only if both grounds are satisfied that an appeal should be allowed. In any other case the Court must dismiss the appeal.14
Analysis
[45] Mr Wotherspoon submits that no credit was given for his guilty plea or his voluntary engagement in a Stopping Violence programme. He submits the sentence imposed was at the very top of what would have been available for this kind of offending.
[46] That submission is incorrect. As noted earlier in this decision, the sentence is well within the acceptable range and the end sentence reflects a proper and complete assessment of Mr Tuumaga’s personal circumstances.
[47] A sentence of imprisonment would not have been out of place for this offending. A sentence in excess of the number of hours of community work Mr Tuumaga has received, or a short period of community detention or supervision,
would have been incapable of criticism and certainly not manifestly excessive.
14 Criminal Procedure Act 2011, s 250(3).
Decision
[48] I am not satisfied I should exercise my discretion and discharge Mr Tuumaga without conviction. The elements of s 107 are not met.
[49] Furthermore, I am not satisfied that a different sentence should have been imposed.
Result
[50] The appeal against conviction and sentence is dismissed.
Moore J
Solicitors:
Mr Wotherspoon, AucklandCrown Solicitor, Auckland
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