Uluave v Police

[2020] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000078

[2020] NZHC 1733

BETWEEN

JUDAH ULUAVE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 July 2020
Appearances:	S Brickell for the Appellant L Wilson for the Respondent
Judgment:	16 July 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 16 July 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland Counsel:     S Brickell, Auckland

ULUAVE v NZ POLICE [2020] NZHC 1733 [16 July 2020]

[1]    Following a Judge-alone trial on 8 July 2019, Judge C Henwood found a charge of doing an indecent act on a young person against Mr Judah Uluave proven beyond reasonable  doubt.   Mr  Uluave  applied  for  a  discharge  without  conviction.   On 7 November 2019, the Judge declined Mr Uluave’s application. Instead, she sentenced him to 12 months’ intensive supervision. He now appeals against the decline of his application for a discharge without conviction.

Factual background

[2]    On a date in 2014, when Mr Uluave was 18 years old and the complainant was 12 years old, he was seated next to the complainant in his mother’s shop, waiting for her to finish work so that she could take him home. His younger sister was also present in the shop, waiting for a ride home. The complainant was a friend of Mr Uluave’s sister and was intending to have a sleepover that night with the sister.

[3]    While seated on a couch with the complainant, he put his arm around her waist, moved his hand up, took hold of her breast and squeezed it, making it very uncomfortable for the complainant. She was shocked and traumatised, got up and walked away from him. The complainant did not make an immediate complaint to Mr Uluave’s mother or sister, but instead asked to be taken home rather than sleep over at his house.

[4]    The complainant only went  to  the  Police  in  2017  because  it  appeared  Mr Uluave continued to be infatuated with her, sending her texts telling her that she was sexy, and he was dreaming of her. She was very scared by this continuing sexual interest in her. When spoken to by the Police, Mr Uluave admitted putting his hand around the complainant’s waist and getting pretty close to touching her on the breast. He also gave evidence at trial and when it was put to him that he had squeezed her breast for one minute, he said:

No. That’s not true, not one minute, I don’t think I reached her breast, I didn’t touch it at all I think. Because all I remember was that I couldn’t reach it because I was trying to, but I didn’t reach it. She just grabbed my arm and put it back.

[5]    The Judge, however, accepted the evidence of the complainant that Mr Uluave held her breast and squeezed it.

Sexual conduct charge

[6]    The Police filed a charge of doing an indecent act on a young person against Mr Uluave on 10 May 2018. On that date he was bailed on conditions, which included that he was not to associate with any child under 16 years of age except where there was independent adult supervision.

[7]    On 14 June 2018, he entered a not guilty plea. After a number of appearances over the next year, a Judge-alone hearing took place on 8 July 2019. On 20 August 2019, the Judge found the charge proven and called for a pre-sentence report. She also timetabled  an  indicated   application  for   a  discharge  without   conviction.   On   7 November 2019, the Judge declined Mr Uluave’s application for a discharge without conviction and sentenced him to 12 months’ intensive supervision.

Other charges

[8]    Mr Uluave was facing a number of other charges relating to events on different days before Police laid the charge of doing an indecent act on a  young person  on  10 May 2018. Mr Uluave had earlier been charged, first, with burglary of an Onehunga apartment occupied by a woman and her 18-month old son on 27 May 2016. The woman screamed and picked up her son before running away from the address.

[9]    Secondly, Mr Uluave had been charged with assault to injure the complainant’s sister, also at his mother’s place of work on 17 September 2016. Mr Uluave kicked her hard in the head, causing her to fall backwards on to a shelf and smashed her glasses. He then punched her with a closed fist.

[10]   Thirdly, Mr Uluave had been charged with wilful damage by kicking and smashing the rear left window of his mother’s car when she refused him a ride home because he was drunk on 21 June 2017.

[11]   Mr Uluave pleaded guilty to all three charges on 17 May 2019, seven weeks before the Judge-alone trial on the charge of doing an indecent act on a young person. Judge Nicola Mathers discharged Mr Uluave without conviction on the three charges of burglary, wilful damage and assault with intent to injure.

Judge’s decision

[12]   The Judge adopted the three-stage process set out in R v Hughes,1 of assessing the gravity of the offence, then assessing the direct and indirect consequences of a conviction and, finally, assessing whether those consequences are out of all proportion to the gravity of the offence.

[13]   The Judge considered the indecent act to be at the lower end of charges of this nature, but given the young age of the complainant and the circumstances of the offending, she assessed the gravity of the offence as moderate. The Judge accepted that there would be consequences as a result of a conviction being entered for a charge of doing an indecent act on a young person. Mr Uluave may have difficulty in obtaining employment, but there were no specific employment opportunities drawn to the Judge’s attention, so she said, that may be put in jeopardy by the entry of a conviction.

[14]   The Judge said that she could take into account everything that Mr Uluave had done, such as a Community Alcohol and Drug Service (CADS) course, The Man Alive course as part of the Family Violence Court protocol, and the Limited Service Volunteer(LSV) course. The Judge also accepted that his young age (18 at the time of the offence) could be taken into account to give him an opportunity to mature and not have a stain on his record.

[15]   The  Judge  was,  however,  concerned  about  the  ongoing  behaviour  of  Mr Uluave, which led to three separate serious charges for which he had received discharges without conviction. The Judge referred to Mr Uluave’s alcohol addiction and the fact that as recently as August 2019, the Police had received a call from a member of the public reporting that a drunk male (Mr Uluave) was approaching children in a public park, asking them to come with him. He was arrested for breach of bail on that occasion.

[16]   Because of his further offending and the fact that Mr Uluave had pleaded not guilty to the charge of doing an indecent act on a young person and continued to

1      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

minimise what had occurred, the Judge was of the view that there was a risk to the public in the future from his behaviour. The direct or indirect consequences of a conviction therefore did not outweigh the gravity of the offence.

Appellant’s submissions

[17]   Mr Uluave accepts the Judge’s assessment of the gravity of the offence as moderate, but submits it should be viewed as being towards the lower end of moderate. He submits, however, that the Judge should not have taken the alleged bail breach into account as it was disputed and never proven.

[18]   In mitigation, Mr Uluave says that he cooperated with the Police investigation. He told the Police at the outset, before he was even charged, that he tried to touch the complainant’s breast because he was sexually interested in her. He had engaged in significant rehabilitative work, which demonstrated a commitment to self-improvement and addressed the lifestyle and attitudes identified in the pre- sentence report as offence related factors.

[19]   As to the consequences of a conviction, Mr Uluave submits that the Judge erred markedly in her assessment of his future prospects. Following the completion of the LSV course, Mr Uluave had obtained a paid internship with the Warehouse. When he applied for a permanent part-time position, he disclosed that he was facing a sexual conduct charge and his application was rejected. He says that he is also unable to obtain employment in the hospitality sector because such jobs usually involve a degree of interaction with the public and employers are unlikely to employ him if he has a sexual conduct conviction, given the perceived risk of that type of offender. A future employer is unlikely to look past the nature of the conviction in rejecting Mr Uluave. More widely a conviction will have an ongoing negative effect on Mr Uluave’s self- esteem and his place within his community.

[20]   Mr Uluave submits that the consequences are out of all proportion to the gravity of the offending. While the Judge did have residual concerns about the risk of future offending, she failed to give appropriate weight to the historic nature of the offence, the physical context of it, which meant it would not have progressed further

with his mother and sister present, the lack of any subsequent sexual offending and the rehabilitative work he had completed.

[21]   Finally, the discharge without conviction granted by Judge Mathers related to offending of a different type and of arguably greater seriousness. A discharge without conviction on the sexual conduct charge would be consistent with the reasons given by Judge Mathers.

Discussion

[22]   The Judge had the benefit of a pre-sentence report dated 17 October 2019. The report writer noted that Mr Uluave showed very little insight into his offending. His responses tended to be immature and contradictory. Mr Uluave said that it was “not right to be attracted to someone so young but she behaved more mature”. Mr Uluave then appeared to rationalise this by say “I act younger than I am therefore more compatible”. He then stated that the 12-year old complainant was “flirting, teasing me”. Based on Mr Uluave’s offending and his explanation and rationale for it, the report writer thought he could potentially benefit from being assessed, and if found suitable, receiving an intervention through the adult service of the Safe Network. The report writer therefore recommended a sentence of intensive supervision.

[23]   In my view, the Judge correctly assessed the offending as moderate. The complainant’s age and vulnerability to sexual advances by a young adult is a serious aggravating factor. Mr Uluave also continued to express a sexual interest in the complainant for at least two years after the offending. In her victim impact statement, she states “Judah preyed on me. He was an older man and a trusted family friend. I am very afraid of him now”. The Judge assessed her as being very upset and traumatised by the incident.

[24]   There is also some evidence that Mr Uluave’s interest in young girls is not limited to the complainant. The prosecution filed a formal statement by Detective Scott setting out a conversation he had with Mr Uluave following his Police interview in 2018, in which Mr Uluave expressed an interest in primary and intermediate school aged girls.

[25]   The fact that Mr Uluave has completed a CADS course and a stopping violence course is not of direct relevance to the present offending and the concern it raises.  Mr Uluave was not drunk at the time of the offending nor did he act in an overly violent manner.

[26]   As to the consequences of a conviction on Mr Uluave’s employment prospects, I accept that Mr Uluave was unsuccessful in his application for a permanent part-time position with the Warehouse and that he may have real difficulty in obtaining employment in the hospitality sector. However, prospective employers have a legitimate interest in the fact that an applicant for employment has been proven to have committed an indecent act on a young person, especially if the employment role involves dealing with members of the public, including children.

[27]   In my view, the Judge was not wrong to find that the consequences of conviction for Mr Uluave would not be out of all proportion to the nature of his offending and to decline his application for a discharge without conviction. She was entitled to assess the risks of further offending by Mr Uluave and determine that a rehabilitative sentence was to be preferred to a discharge.

[28]   Since the offending in question, Mr Uluave was charged with three separate serious offences to which he pleaded guilty. This post-charge conduct is not an aggravating feature of the present offending, but some post-charge conduct may be a mitigating factor. For example, a discount is invariable given for pleas of guilty. However, Mr Uluave pleaded not guilty to the charge of doing an indecent act on a young person, as was his right, but it meant that the complainant had to give evidence.

[29]   As noted in the pre-sentence report, he had shown very little insight into the offending. As to remorse, he told the report writer “I don’t feel guilty now. I did at first at the time.” A discharge without conviction would not promote a sense of responsibility in Mr Uluave for the harm he has caused to the complainant and denounce his conduct.

Result

[30]The appeal is dismissed.

Woolford J