ULUAVE v NZ POLICE [2020] NZHC 1733

ULUAVE v NZ POLICE [2020] NZHC 1733 [16 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000078[2020] NZHC 1733BETWEEN JUDAH ULUAVEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 July 2020Appearances: S Brickell for the AppellantL Wilson for the RespondentJudgment: 16 July 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 16 July 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: S Brickell, Auckland[1] Following a Judge-alone trial on 8 July 2019, Judge C Henwood found a chargeof doing an indecent act on a young person against Mr Judah Uluave proven beyondreasonable doubt. Mr Uluave applied for a discharge without conviction. On7 November 2019, the Judge declined Mr Uluave's application. Instead, shesentenced him to 12 months' intensive supervision. He now appeals against thedecline 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 was12 years old, he was seated next to the complainant in his mother's shop, waiting forher to finish work so that she could take him home. His younger sister was also presentin the shop, waiting for a ride home. The complainant was a friend of Mr Uluave'ssister 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 veryuncomfortable for the complainant. She was shocked and traumatised, got up andwalked away from him. The complainant did not make an immediate complaint toMr Uluave's mother or sister, but instead asked to be taken home rather than sleepover at his house.[4] The complainant only went to the Police in 2017 because it appearedMr Uluave continued to be infatuated with her, sending her texts telling her that shewas sexy, and he was dreaming of her. She was very scared by this continuing sexualinterest in her. When spoken to by the Police, Mr Uluave admitted putting his handaround 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 herbreast for one minute, he said:No. That's not true, not one minute, I don't think I reached her breast, I didn'ttouch it at all I think. Because all I remember was that I couldn't reach itbecause I was trying to, but I didn't reach it. She just grabbed my arm and putit back.[5] The Judge, however, accepted the evidence of the complainant that Mr Uluaveheld her breast and squeezed it.Sexual conduct charge[6] The Police filed a charge of doing an indecent act on a young person againstMr Uluave on 10 May 2018. On that date he was bailed on conditions, which includedthat he was not to associate with any child under 16 years of age except where therewas independent adult supervision.[7] On 14 June 2018, he entered a not guilty plea. After a number of appearancesover the next year, a Judge-alone hearing took place on 8 July 2019. On 20 August2019, the Judge found the charge proven and called for a pre-sentence report. She alsotimetabled an indicated application for a discharge without conviction. On7 November 2019, the Judge declined Mr Uluave's application for a discharge withoutconviction and sentenced him to 12 months' intensive supervision.Other charges[8] Mr Uluave was facing a number of other charges relating to events on differentdays before Police laid the charge of doing an indecent act on a young person on10 May 2018. Mr Uluave had earlier been charged, first, with burglary of anOnehunga 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'ssister, also at his mother's place of work on 17 September 2016. Mr Uluave kickedher hard in the head, causing her to fall backwards on to a shelf and smashed herglasses. He then punched her with a closed fist.[10] Thirdly, Mr Uluave had been charged with wilful damage by kicking andsmashing the rear left window of his mother's car when she refused him a ride homebecause he was drunk on 21 June 2017.[11] Mr Uluave pleaded guilty to all three charges on 17 May 2019, seven weeksbefore 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 chargesof 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 assessingthe gravity of the offence, then assessing the direct and indirect consequences of aconviction and, finally, assessing whether those consequences are out of all proportionto the gravity of the offence.[13] The Judge considered the indecent act to be at the lower end of charges of thisnature, but given the young age of the complainant and the circumstances of theoffending, she assessed the gravity of the offence as moderate. The Judge acceptedthat there would be consequences as a result of a conviction being entered for a chargeof doing an indecent act on a young person. Mr Uluave may have difficulty inobtaining employment, but there were no specific employment opportunities drawn tothe Judge's attention, so she said, that may be put in jeopardy by the entry of aconviction.[14] The Judge said that she could take into account everything that Mr Uluave haddone, such as a Community Alcohol and Drug Service (CADS) course, The Man Alivecourse as part of the Family Violence Court protocol, and the Limited ServiceVolunteer(LSV) course. The Judge also accepted that his young age (18 at the time ofthe offence) could be taken into account to give him an opportunity to mature and nothave a stain on his record.[15] The Judge was, however, concerned about the ongoing behaviour ofMr Uluave, which led to three separate serious charges for which he had receiveddischarges without conviction. The Judge referred to Mr Uluave's alcohol addictionand the fact that as recently as August 2019, the Police had received a call from amember of the public reporting that a drunk male (Mr Uluave) was approachingchildren in a public park, asking them to come with him. He was arrested for breachof bail on that occasion.[16] Because of his further offending and the fact that Mr Uluave had pleaded notguilty to the charge of doing an indecent act on a young person and continued to1 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 thepublic in the future from his behaviour. The direct or indirect consequences of aconviction 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 asmoderate, 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 intoaccount 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 thecomplainant's breast because he was sexually interested in her. He had engaged insignificant rehabilitative work, which demonstrated a commitment toself-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 erredmarkedly in her assessment of his future prospects. Following the completion of theLSV course, Mr Uluave had obtained a paid internship with the Warehouse. When heapplied for a permanent part-time position, he disclosed that he was facing a sexualconduct charge and his application was rejected. He says that he is also unable toobtain employment in the hospitality sector because such jobs usually involve a degreeof interaction with the public and employers are unlikely to employ him if he has asexual conduct conviction, given the perceived risk of that type of offender. A futureemployer 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 thegravity of the offending. While the Judge did have residual concerns about the risk offuture offending, she failed to give appropriate weight to the historic nature of theoffence, the physical context of it, which meant it would not have progressed furtherwith his mother and sister present, the lack of any subsequent sexual offending and therehabilitative work he had completed.[21] Finally, the discharge without conviction granted by Judge Mathers related tooffending of a different type and of arguably greater seriousness. A discharge withoutconviction on the sexual conduct charge would be consistent with the reasons givenby Judge Mathers.Discussion[22] The Judge had the benefit of a pre-sentence report dated 17 October 2019. Thereport writer noted that Mr Uluave showed very little insight into his offending. Hisresponses tended to be immature and contradictory. Mr Uluave said that it was "notright to be attracted to someone so young but she behaved more mature". Mr Uluavethen appeared to rationalise this by say "I act younger than I am therefore morecompatible". He then stated that the 12-year old complainant was "flirting, teasingme". Based on Mr Uluave's offending and his explanation and rationale for it, thereport writer thought he could potentially benefit from being assessed, and if foundsuitable, receiving an intervention through the adult service of the Safe Network. Thereport writer therefore recommended a sentence of intensive supervision.[23] In my view, the Judge correctly assessed the offending as moderate. Thecomplainant's age and vulnerability to sexual advances by a young adult is a seriousaggravating factor. Mr Uluave also continued to express a sexual interest in thecomplainant 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. Iam very afraid of him now". The Judge assessed her as being very upset andtraumatised by the incident.[24] There is also some evidence that Mr Uluave's interest in young girls is notlimited to the complainant. The prosecution filed a formal statement by DetectiveScott setting out a conversation he had with Mr Uluave following his Police interviewin 2018, in which Mr Uluave expressed an interest in primary and intermediate schoolaged girls.[25] The fact that Mr Uluave has completed a CADS course and a stopping violencecourse 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 violentmanner.[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-timeposition with the Warehouse and that he may have real difficulty in obtainingemployment in the hospitality sector. However, prospective employers have alegitimate interest in the fact that an applicant for employment has been proven to havecommitted an indecent act on a young person, especially if the employment roleinvolves dealing with members of the public, including children.[27] In my view, the Judge was not wrong to find that the consequences ofconviction for Mr Uluave would not be out of all proportion to the nature of hisoffending and to decline his application for a discharge without conviction. She wasentitled to assess the risks of further offending by Mr Uluave and determine that arehabilitative sentence was to be preferred to a discharge.[28] Since the offending in question, Mr Uluave was charged with three separateserious offences to which he pleaded guilty. This post-charge conduct is not anaggravating feature of the present offending, but some post-charge conduct may be amitigating 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 ayoung 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 theoffending. As to remorse, he told the report writer "I don't feel guilty now. I did atfirst at the time." A discharge without conviction would not promote a sense ofresponsibility in Mr Uluave for the harm he has caused to the complainant anddenounce his conduct.Result[30] The appeal is dismissed.________________________________Woolford J