Whakataka v Police - [2022] NZHC 2908

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2022-416-8

[2022] NZHC 2908

TUAHINE HIRINI WHAKATAKA

v

NEW ZEALAND POLICE

Hearing: 3 November 2022

Appearances:

N J Wright for Appellant

L A Marshall for Respondent (via VMR)

Judgment:

7 November 2022

JUDGMENT OF McQUEEN J

[1] Mr Whakataka seeks leave to appeal a decision of the Gisborne District Court on 1 August 2022 to discharge an assault charge without conviction under s 106 of the Sentencing Act 2002.1 The appeal is brought on a question of law on the basis that no order was made according to s 106(3)(c). The question of law posed by Mr Whakataka is:

Is it correct in considering the phrase “order the court is required to make on conviction”, pursuant to section 106(3)(c) of the Sentencing Act 2002, to restrict the meaning of “required” to “mandatory”?

[2] Mr Whakataka says that the answer should be “No”. He appears to be seeking court-ordered psychological intervention under s 106(3)(c), alongside the discharge without conviction.

1 Police v Whakataka [2022] NZDC 14410.

WHAKATAKA v NEW ZEALAND POLICE [2022] NZHC 2908 [7 November 2022]

Background

[3] Mr Whakataka originally faced Judge-alone trial on two charges of indecent assault.2 During this trial, he was discharged of the first charge of indecent assault pursuant to s 147 of the Criminal Procedure Act 2011. On the second charge, the Judge found that the element of indecency had not been proved but held the included charge of assault simpliciter3 was made out.4

[4] Mr Whakataka was sentenced on 1 August 2022.5 Counsel for Mr Whakataka applied for a discharge without conviction under s 106 of the Sentencing Act. The Judge granted the discharge without conviction and made an order under s 106(3)(b) that Mr Whakataka pay an emotional harm payment of $400 to the victim.6

[5] A psychological report obtained by the Court recommended that if the matter was dealt with in the absence of discharge without conviction, there could be benefits to Mr Whakataka from seeing a Department of Corrections psychologist.7 The Judge considered adjourning the sentencing to allow a psychologist or psychiatrist to assist Mr Whakataka, and once that process was complete, then considering the s 106 discharge. However, he concluded that it was in the interests of justice to bring the matter to a close in the interests of the state, Mr Whakataka and the victim.8 The Judge recorded Mrs Wright’s submission that he could order such assistance from a psychologist or psychiatrist together with the discharge without conviction but concluded that power did not exist”.9

Relevant law

[6] Section 106(3) provides for additional orders a court can make when discharging an offender without conviction:10

(3)A court discharging an offender under this section may—

2      Crimes Act 1961, s 134(3).
3      Section 196.
4      R v Whakataka [2022] NZDC 8050.
5      Police v Whakataka, above n 1.
6 At [30].
7 At [17].
8 At [20].
9      At [18]–[19].
10     Emphasis…

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.

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Details

Case: [2022] NZHC 2908
Decision Date: 7 November 2022

CaseChat Overview and Summary

In Whakataka v Police, the appellant, Mr Whakataka, sought leave to appeal the Gisborne District Court's decision to discharge him without conviction under section 106 of the Sentencing Act 2002. The appellant argued that the court should have ordered psychological intervention alongside the discharge without conviction, as he believed the phrase "order the court is required to make on conviction" in section 106(3)(c) should not be limited to "mandatory" orders. Mr Whakataka contended that the court's failure to order such intervention was a misdirection of law and would prevent him from receiving necessary help, thereby increasing the risk of reoffending.

The court examined whether the District Court had erred in law by not making an order for psychological intervention. The court found that the plain meaning of section 106(3)(c) of the Sentencing Act indicated that the court could only impose orders that were mandatory upon conviction and not merely discretionary. The court also noted that the legislative history supported this interpretation, as the changes in wording from the Sentencing and Parole Reform Bill 2002 to the Sentencing Act 2002 were purely semantic and did not reflect a change in legislative intention.

Given that the court concluded the appeal was not meritorious and would not be in the interests of justice to extend the time for filing the application, the appeal was dismissed. The court declined the application for an extension of time to seek leave to appeal on a question of law. The reasons for delay in bringing the appeal were deemed inadequate, as the additional two weeks taken to file the appeal did not appear likely to have made any difference to counsel's ability to obtain instructions from Mr Whakataka.

Orders