Tahere v Police

[2013] NZHC 3391

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-55 [2013] NZHC 3391

BETWEEN  VALDA TAHERE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   16 December 2013

Appearances:           T Braithwaite for Appellant

N Tahana for Respondent

Judgment:                16 December 2013

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

TAHERE v NEW ZEALAND POLICE [2013] NZHC 3391 [16 December 2013]

[1]      Ms Tahere pleaded guilty in the District Court to a charge of common assault. On 9 July 2013, Judge McGuire convicted her on that charge and ordered her to come up for sentence if called upon to do so within six months.1   She now appeals to this Court against conviction.  She submits that the Judge ought to have discharged her without conviction pursuant to s 106 of the Sentencing Act 2002 (“the Act”).

The facts

[2]      The facts on which the charge was based are contained in a summary of facts with which Ms Tahere takes no issue.   It records that at about midday on 1 May

2013, Ms Tahere went to her sister’s address in Tokoroa.  She went there to sort out

an issue relating to her son that had arisen the previous day.

[3]      A short time after Ms Tahere arrived at the address, an argument occurred and Ms Tahere’s sister asked her to leave the property.  She refused to leave, and a short physical altercation ensued.   This involved pushing and shoving.   At one stage, however, Ms Tahere struck her sister in the face with her fist.  She then pushed her sister out of the way, and left the property.

[4]      Both parties were charged with assault.  The incident did not leave Ms Tahere with  any  injuries,  but  her  sister  was  left  with  bruising  to  her  neck,  wrist  and forehead.

The sentence

[5]      The Judge did not have a great deal to say when he passed sentence on Ms

Tahere.  His sentencing remarks are as follows:

[2]       Today you will be convicted.  You will be ordered to come up for sentence  if  called  upon  with  six  months.    So  that  is  basically  a  good behaviour bond for six months.

The appeal

[6]      It now transpires that Ms Tahere is likely to lose her job as a result of the conviction.  Ms Tahere is employed as a consumer advocate by an organisation that

1      New Zealand Police v Tahere DC Tokoroa CRI-2013-077-000470, 9 July 2013.

relies on a government contract for funding.  She needs her job in order to support her family.   If she loses the job, she would be forced to become a burden on the State, and her children are likely to suffer as a result.

[7]      Ms Tahere’s employer has filed an affidavit confirming that her organisation receives its funding from the government on the basis of a contract containing the following provision:

The provider shall not employ staff (including volunteer workers) who to the best of the provider’s knowledge has a criminal conviction, relative to the role, for a crime against the person, a crime involving dishonesty or criminal damage, or a sexual offence.

[8]      Ms Tahere’s future has been put on hold until the outcome of the present appeal is known.  If the conviction remains in place, however, she will automatically at that point lose her employment.

Jurisdiction to discharge an offender without conviction

[9]      Guidance regarding the manner in which the Court should exercise its power to discharge an offender without conviction under s 106 is contained in s 107 of the Act. This 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.

[10]     When  considering  whether  or  not  to  discharge  an  offender  without conviction, the Court must undertake several steps.  First, it must have regard to the gravity of the offending.   Secondly, it must have regard to the direct and indirect consequences  of a conviction.    Finally,  it  must determine whether or  not  those consequences are out of all proportion to the gravity of the offending.  The Court retains a residual discretion not to discharge an offender without conviction even if the statutory criteria are met, but this will not often occur.

Decision

[11]     In the present case, the gravity of the offending must be regarded as at the very lowest level.  It arose in the heat of the moment as a result of a family dispute. The summary suggests that Ms Tahere’s sister was the instigator of the dispute.  It was brief in the extreme, and did not result in any serious injury to either party.

[12]     The direct consequences of the conviction are, however, significant.   The conviction would result in Ms Tahere losing her employment, and thereby losing her ability to support her family by her own efforts.

[13]     Having regard to the low level of the offending as reflected in the paucity of the Judge’s comments and the sentence imposed, I am satisfied that the gravity of the offending is far outweighed by the consequences that will result from the conviction. The respondent agrees.  I have no doubt that, if the Judge had been aware of the facts that are before this Court, he would also have taken a similar view.

Result

[14]     The appeal is accordingly allowed.  The conviction is quashed.  Ms Tahere is discharged without conviction pursuant to s 106(1) of the Act.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Families Matter Law Practice