TUHI v NEW ZEALAND POLICE [2019] NZHC 2046

TUHI v NEW ZEALAND POLICE [2019] NZHC 2046 [20 August 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-18[2019] NZHC 2046BETWEEN TATYANA TUHIAppellantAND NEW ZEALAND POLICERespondentHearing: on the papersCounsel: E R Fairbrother QC for the AppellantC R Stuart for the RespondentJudgment: 20 August 2019JUDGMENT OF CULL J[1] Ms Tuhi appeals against her conviction and sentence, having pleaded guilty toa charge of wounding with reckless disregard, at the conclusion of the evidence at aJudge alone trial in the Hastings District Court on 18 February 2019. A convictionwas entered, and on 5 April 2019, Ms Tuhi was sentenced to 12 months' intensivesupervision. She was also given a first strike warning.[2] Of the five grounds of appeal filed, the police accept the validity of one ground,namely, that Ms Tuhi should have been informed by her counsel of the opportunity toseek a discharge without conviction and that an application should have been made.On that basis, the Crown respectfully submits that the appeal should be allowed onthat issue alone and without prejudice to the other grounds of appeal.[3] Ms Tuhi's presently-instructed counsel supports the submission of the Crown,on the basis that:(a) Ms Tuhi's sentence appeal be allowed, on the papers;(b) the matter be returned to the District Court for the hearing of anapplication for discharge without conviction under s 106 of theSentencing Act 2002; and(c) Ms Tuhi's conviction appeal rights are not prejudiced, should theapplication for a discharge without conviction be dismissed.[4] By consent, I have allowed Ms Tuhi's appeal and directed that the matter beremitted to the District Court for the hearing of an application for discharge withoutconviction under s 106 of the Sentencing Act. My reasons follow.Background[5] Ms Tuhi pleaded guilty to a charge of wounding with reckless disregard.1 Shewas 19 at the time of the offending and has a one year old child. She has no priorconvictions. Ms Tuhi is of Ngāti Kahungunu iwi, and lives in a supportive livingenvironment where she attends the Teen Parent Unit at William Colenso College.[6] The offending took place on the night of 28 April 2018. Ms Tuhi had goneover to a friend's house in the early hours of the following morning in search ofanother friend. Her friend invited her in, and they went to his bedroom. Other relativesand friends were drinking in the house at the time.[7] After Ms Tuhi and her friend had been in his room for about 30 minutes, agroup of those drinking in the lounge came into the room. One of these people, knownas Isaac, attempted to playfully jump on Ms Tuhi's friend. When Ms Tuhi and herfriend asked the group to leave, Isaac became angry. He started yelling and swearingat Ms Tuhi, asking her to leave. A verbal fight broke out between the two. Ms Tuhialleges Isaac threw a beer bottle at her in this skirmish. Isaac denies this. In any event,the other men in the room took Isaac out of the room. This left Ms Tuhi alone in theroom with Isaac's partner, the victim in this matter.1 Crimes Act 1961, s 188(2); maximum penalty seven years' imprisonment.[8] The skirmishing continued between Ms Tuhi and the victim. They were bothyelling and swearing at one another. It is common ground that the victim pushed MsTuhi on the shoulder, causing her to fall back against the bed. She then reached downand grabbed or pulled Ms Tuhi's hair. Ms Tuhi pulled the victim's hair in retaliationand the two continued to scuffle.[9] Ms Tuhi then picked up a bottle and threw it at the victim. She says it was aquick reaction without any thought other than for her own safety. The bottle hit thevictim in the head and caused a gash to the left-side of her head. Soon after, Ms Tuhileft the house. She was later charged with wounding with intent, though this wasamended to wounding with reckless disregard by the Judge in the District Court.The appeal[10] Ms Tuhi initially pleaded not guilty to the charge, but later pleaded guilty whenthe charge was amended to wounding with reckless disregard. Ms Tuhi asserts she didso on her lawyer's advice. Her lawyer admits this. It is common ground that he didnot discuss her option to proceed to verdict as an alternative to pleading guilty. MsTuhi was then sentenced to 12 months' intensive supervision and given a first strikewarning.[11] Ms Tuhi appeals against her conviction and sentence. The grounds of appeallargely relate to issues regarding competence of trial counsel. In particular:(a) the defence of self defence was not adequately put to the Court, andcharacter and propensity evidence was available but not called.(b) Ms Tuhi was not informed of her right to elect jury trial on the chargeand that she would have availed herself of that opportunity given thechance.(c) Ms Tuhi has also provided a full narrative of her version of events inrelation to the offending which is not entirely consistent with what shesaid at trial. She has provided an explanation for that.(d) There are other matters regarding poor contact with trial counsel, anallegation that counsel failed to take a proper brief of evidence fromher, and miscommunication regarding when the trial was taking place.(e) Finally, it is submitted that Ms Tuhi's counsel failed to make anapplication for a discharge without conviction.[12] Ms Tuhi's former counsel has provided an affidavit to the Court and does notaccept many of the allegations made by Ms Tuhi on appeal. However, thecircumstances relating to the entry of Ms Tuhi's guilty plea and his decision not toapply for a discharge without conviction correspond with Ms Tuhi's version of events.The parties' positions[13] Given Ms Tuhi's personal circumstances, the police accept that she shouldhave been informed of the opportunity to seek a discharge without conviction and thatan application should have been made. The police submit that the appeal should beallowed on that issue alone and without prejudice to the other grounds of appeal.[14] Both parties submit that the conviction, sentence and first strike warningshould be quashed and that the matter be remitted back to the District Court to consideran application pursuant to s 106 of the Sentencing Act 2002 (the Act). It is necessaryfor the trial judge to consider the s 106 application as there were no factual findingsfollowing the conclusion of the evidence or at sentencing that would allow anymeaningful assessment of the gravity of the offending at this stage.[15] Once Ms Tuhi's s 106 application has been determined, and depending on thatoutcome, Ms Tuhi may pursue other grounds of appeal.Decision[16] I am satisfied that there has been a miscarriage of justice in thesecircumstances. It has been accepted by the Crown that of the five grounds advancedby Ms Tuhi, her counsel failed to inform her and/or make an application for a dischargewithout conviction. In these circumstances, I am satisfied that the appropriate courseis to allow the conviction and sentence appeals; quash the conviction, sentence, andfirst strike warning; and remit the matter to the District Court, under ss 233(3)(e) and251(2)(c) of the Criminal Procedure Act 2011. In that way, the District Court maydetermine Ms Tuhi's s 106 application.[17] By consent, this appeal is therefore allowed on the issue of counsel's failure topursue a s 106 application for Ms Tuhi. Under s 232 of the Criminal Procedure Act, Iam allowing the appeal on that ground, and I am, as Mr Fairbrother suggests, treatingthe other grounds of appeal as withdrawn. Depending on the outcome in the DistrictCourt, Ms Tuhi may, if necessary, pursue other grounds of appeal.Result[18] The appeals against conviction and sentence are allowed.[19] Ms Tuhi's conviction, sentence, and first strike warning are quashed.[20] I direct that this case be remitted back to the District Court to determinewhether Ms Tuhi should be discharged without conviction under s 106 of the CriminalProcedure Act 2011.Cull JSolicitors:Elvidge & Partners, Napier for the Respondent