MOANA v NEW ZEALAND POLICE [2022] NZHC 1392

MOANA v NEW ZEALAND POLICE [2022] NZHC 1392 [14 June 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2022-485-18[2022] NZHC 1392BETWEEN ANTHONY HURUMANU MOANAAppellantAND NEW ZEALAND POLICERespondentHearing: 9 June 2022Counsel: E J M Smith for AppellantR G Buckman for RespondentJudgment: 14 June 2022JUDGMENT OF SIMON FRANCE J[1] Mr Moana appeals the refusal of the District Court to discharge him withoutconviction on a charge of domestic assault. If unsuccessful in that, a sentence of ninemonths' supervision is challenged as being excessive and unnecessary. Separately, theimposition of a protection order in favour of Mr Moana's victim is also appealed.1Facts[2] The defendant and the victim, who both have intellectual disabilities, had bothbeen drinking. A disagreement occurred. Mr Moana struck the victim several timesin the face, causing her to fall against a doorframe, and then onto a mattress. Thevictim suffered black eyes, swelling to her cheeks, and bruising in her face.1 New Zealand Police v Moana [2021] NZDC 5990.Application for a discharge[3] The District Court assessed the offending as medium to high level gravitybecause it was serious inter-partner instrumental violence.2 This assessment wasbased on a summary of facts prepared for a sentencing indication. It was modified inan agreed summary for sentencing. The Judge did not alter his assessmentnotwithstanding the modified facts (referring again, it seems, to the old summary) orthe existence of enhanced rehabilitation endeavours. The consequences of convictionwere assessed as vague and not out of all proportion to the gravity of the offending.[4] On appeal it is submitted that correctly assessed, the offending would beassessed of low gravity. The Crown concedes an assessment lower than that of theDistrict Court is available, but submits low is not.[5] The approach to a discharge application is well known and need not be set outin detail.3 The first step is to identify the gravity of the offending. This entailsconsideration of all relevant sentencing factors relating both to the offending and theoffender. Next, the consequences both direct and indirect are to be identified. Third,an evaluation of whether those consequences would be out of all proportion to thegravity of the offence is required. If there is such a lack of proportionality, the Courtmay grant a discharge without conviction but has a discretion not to do so in theparticular case. On appeal the matter proceeds by way of rehearing. Here thejudgment under appeal appears to have regard to an incorrect summary, and has notengaged in a detailed assessment of gravity. These matters support a fresh assessment.(a) Gravity of the offending[6] I consider the assault to be a moderately serious example of its type. Noweapons were used and it was of a short duration. However, there were punchesthrown at the head, injuries caused and a hospital visit required, albeit again not of anyduration. It would have been a frightening and traumatic experience.2 At [2].3 Z v R [2012] NZCA 599, [2012] NZAR 142; R v Smith [2017] NZCA 530; and R v Hughes [2008]NZCA 546, [2009] 3 NZLR 222.[7] Mr Moana is a 31-year-old Māori man with an established intellectualdisability. Experts label it as being within the mild intellectual disability range. Hehas no previous convictions nor other involvement with enforcement authorities.[8] Mr Moana was born very prematurely and has consistently been slow to reachdevelopmental milestones. He required education assistance throughout his schoolingdue to learning difficulties. He remained at school until he was 18 but experienced itas a lonely environment in which he was often bullied.[9] Mr Moana went to Christchurch to live with his mother when he left schoolHowever, he and his family were then badly affected by the earthquake, their housebeing in an area of severe liquefaction. This was a traumatic experience for whichcounselling was provided. Consequently the family returned to Wellington, whichseems not to have been a happy change for Mr Moana. He lives a socially isolatedlife but with good support and friendship from his family. Since the offending he hasbeen receiving assistance from disability support services.[10] Mr Moana has been in two relationships. The first lasted five years duringwhich time he and his partner had two children. The children live with their motherin another city. He has contact but it is infrequent. He met the present victim in 2020.That relationship has ended with the assault.[11] Mr Moana has from the outset accepted responsibility. He is not a drug userand was an infrequent user of alcohol. On the day in question he had more than hehad ever drunk. He reports he has not touched alcohol since and does not intend to.[12] Concerning remorse, Mr Moana wrote a letter of apology. It reflects his basicwriting skills and is obviously genuine. It concludes:I feel bad what I done to X and I wish I had never drunk that day to be honest.The psychologist who assessed Mr Moana's fitness to stand trial notes that during theinterview, when the offending arose, Mr Moana indicated a wish to apologise and acommitment never to act like that again. The psychologist records Mr Moana wasthen overwhelmed for some minutes before he could regain composure.[13] The pre-sentence report writer likewise recognises Mr Moana's genuineremorse. The sentence of supervision to assist Mr Moana was the report'srecommendation.[14] As noted, since the offending Mr Moana has been assisted by CCS DisabilityAction. It helped arrange one-on-one counselling from which a positive report hasemerged, with the counsellor giving the assessment that it seemed a one-off episodeunlikely to be repeated. The counsellor indicates he is available to Mr Moana if heshould find himself struggling to process a situation.[15] A note from CCS Disability Action also reports on Mr Moana's remorse andother efforts. He has attended community work and is attending an Earthlinkemployment wellness program to help him develop further skills to enter theworkforce.[16] There are plainly many positives concerning Mr Moana that require anadjustment to an initial offending assessment of moderately serious. He is a 31-year-old Māori man who has had to cope all his life with the disadvantages of hisintellectual disability. He reached the age of 30 without ever causing harm orotherwise coming to the attention of authorities. He has had a supportive mother andsiblings but there have been significant traumas along the way, and his life skills havenot made it easy to be part of the community.[17] The immediate cause of the current offending is identifiable and beingaddressed. The remorse is genuine as is his commitment to avoid a repetition. Hiswas an early plea. It is a powerful collection of mitigating factors.[18] Applying all these factors I consider the correct assessment is one of lowgravity.Consequences[19] There are no identifiable direct and immediate consequences of a conviction,but the potential impact is readily identifiable. Mr Moana's profile is one whereobtaining work will be difficult and would reflect a sustained endeavour on his part toovercome some hurdles not in any way of his own making. I have little doubt aconviction for assault would probably make these hurdles insurmountable.Balance exercise[20] Mr Moana has much to deal with in life. He has for almost all of it done well.He wants to do so again and is genuinely remorseful for his lapse. The form of thelapse can never be condoned nor minimised. Nor should the interests of the victimand her experiences be forgotten.[21] In this regard the Court has two victim impact statements – from the victimand from her mother. The latter was herself greatly affected by seeing her daughter'sinjuries and remains so today. The victim herself filed a statement initially and thenan updated one. In that she observed:I feel neutral about what happened and just want to move on.I do not overlook that the victim herself has a disability and the impressions of hermother merit attention, but the Court has no basis on which to not accept that whichthe victim says.4[22] Returning to the balancing exercise, I am satisfied that to burden Mr Moana'sprospects with a conviction for assault would be out of all proportion as a response tooffending assessed in the overall context as of low gravity.[23] The appeal will accordingly be allowed and the conviction quashed. Thesentence of nine months' supervision is also quashed.Protection order[24] The power to make a protection order is found in s 123B of the Sentencing Act2002. The Court must be satisfied it is necessary for the protection of the victim. Ithas been noted the role of an order is not only to prevent future violence but to assist4 There is a suggestion in the statements of the possibility of some hearing loss. The Court, however,is required to proceed on the agreed statement of facts.a victim to actually feel safe.5 There must be a reasonable subjective fear of violenceon the part of the applicant seeking the order.6[25] It is submitted that in the present case the evidence does not establish the victimfeels unsafe, nor that such a sense, if it existed, would be reasonable. The relationshipis at an end. There has been no contact between the two since the incident, and thereis no expectation of future contact.[26] In my view, this submission too much freezes the moment in time. Looked atmore broadly, the incident was a product of jealousy and alcohol, and Mr Moanaacknowledged ongoing feelings albeit accepting the relationship was at an end. Thereis not a full statement from the victim, herself having a disability, but she did sign anapplication for the order. A Court may infer from that the victim feels a need for it. Ido not consider the Court erred in making an order – it gives the complainant an extralayer of protection which aids recovery, and it makes plain to Mr Moana that he needsto move on. That he might presently accept that reality is a positive thing, but so isreinforcement.[27] The appeal against the protection order is dismissed.Conclusion[28] The appeal against conviction and sentence is allowed, and both are quashed.Mr Moana is discharged without conviction.[29] The appeal against the making of a protection order is dismissed.____________________Simon France JSolicitors:Crown Solicitor, Wellington for Respondent5 The correct approach is set out in SN v MN ]2017] NZCA 289 at [22]–[24].6 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [43] and [77].