Afele v Police [2014] NZHC 1186 (30 May 2014)

Last Updated: 18 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000136 [2014] NZHC 1186

BETWEEN	TAMALII AFELE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 May 2014
Appearances:	E Te Whata and V Withy for Appellant A Pollett for Respondent
Judgment:	30 May 2014

(ORAL) JUDGMENT OF ANDREWS J [Appeal against refusal to grant bail]

AFELE v NEW ZEALAND POLICE [2014] NZHC 1186 [30 May 2014]

Introduction

[1] The appellant was convicted after a jury trial in the District Court at Manukau on 5 May 2014 on a charge of sexual violation by unlawful sexual connection. He has appealed against the refusal of the presiding Judge, Judge Taumaunu, to allow him bail pending his sentencing on 15 August 2014.

District Court decision

[2] The Judge noted that under the Bail Act there is a presumption in favour of a remand in custody, after conviction, unless it is in the interests of justice to grant bail. One of the important factors to be considered is the likelihood of a custodial sentence being imposed. The Judge recorded the submission for the appellant that there was every possibility of an end sentence being within the two-year threshold for home detention to be considered, and the submission for the Crown that there is a presumption that a term of imprisonment should be imposed for this type of offence.

[3] The Judge also noted that the appellant was 19 at the time of the offending, has no previous convictions, and is otherwise of good character and with an unblemished record. The Judge noted the submission for the appellant that in the circumstances of the offending a custodial sentence was far from inevitable. The Judge did not accept that submission, noting that the jury had by their verdict found that the complainant did not consent to the sexual connection, and that the appellant did not have reasonable grounds to believe she had consented. The Judge concluded that a term of imprisonment was highly likely as an outcome.

[4] The Judge also noted that sentencing could not be completed until August

2014, but concluded that a remand in custody was justified, and that the matters raised on behalf of the appellant did not override the presumption in favour of a remand in custody, and the need for the appellant to be remanded in custody for sentencing.

Appeal submissions

[5] For the appellant, Ms Te Whata submitted that having regard to the particular circumstances of the offending, the appellant’s personal circumstances, and the length of time until sentencing, it is in the interests of justice to grant bail.

[6] Ms Te Whata referred to the appellant’s age, the absence of any previous convictions, his involvement in his local church, and the dependence of his mother on him to help provide for the family. Ms Te Whata noted that since January 2014, the appellant had been working in Masterton.

[7] As to the facts of the offending, Ms Te Whata submitted that the appellant’s defence was that he had an honest belief that the complainant had consented to his touching her. The circumstances of the offending, as set out in Ms Te Whata’s written submissions, were that the complainant, the appellant, and the appellant’s girlfriend were together after a social gathering. The complainant chose to sleep at the appellant’s house, despite knowing that only the appellant and his girlfriend would be there. The appellant’s girlfriend told the complainant she could sleep in her bedroom, and that she and the appellant would sleep in another room. The complainant refused that and another suggestion but instead joined the appellant and his girlfriend in their bed. The appellant was in the middle.

[8] In the early hours of the morning, the appellant began touching the complainant, then inserted his finger into her vagina. The complainant’s evidence was that she woke up after feeling the appellant touching her then jumped out of the bed and started yelling and ran from the house.

[9] The appellant first denied the allegation but then admitted he had inserted his finger into the complainant’s vagina, but then stopped because he knew it was wrong. He gave evidence at trial saying he believed the complainant was consenting; he had perceived that the complainant was moving towards him in the bed and this initiated the touching, and the complainant did not initially protest. He had stopped, he said, because it was wrong to touch another woman when his girlfriend was lying in bed beside him.

[10] Ms Te Whata accepted that the jury had rejected the appellant’s contention that there were reasonable grounds for him to believe that the complainant had consented, but submitted that it would nevertheless be open to the judge at sentencing to find that the appellant’s belief in consent was genuine but mistaken.

[11] Ms Te Whata accepted that there is a presumption as to a custodial sentence following conviction on a charge under s 128B(2) of the Crimes Act but submitted that in the present case the Court will need to give careful consideration as to whether a custodial sentence is appropriate. In support of this submission, Ms Te Whata referred to the guideline sentencing judgment of the Court of Appeal in

R v AM, ¹ and sentencing decisions in other cases,² and submitted that the appellant’s

offending plainly fell into band one of R v AM, where the appropriate starting point is between two and five years’ imprisonment, and at the lower end of that range.

[12] Ms Te Whata further submitted that there are a number of other significant mitigating factors that would permit a discount from the starting point, leading to an end sentence of less than two years’ imprisonment. In this respect, she referred to the Court of Appeal’s judgment in Churchward v R, as to the relevance of the youth of an offender in sentencing.³ She also referred to the high regard in which the appellant is held within his family and in the community and provided a large number of supporting letters from family members, members of the church attended by the appellant and his employer.

[13] All of these matters, Ms Te Whata submitted, together with the fact that the appellant will not be sentenced until 15 August 2014 (meaning that by the time of sentencing the appellant will have spent three months in custody (the equivalent of a more than six months imprisonment), before he is sentenced, when a term of imprisonment is not inevitable) must count strongly in favour of the appellant’s release on bail pending sentence. She submitted that the longer the appellant spends in custody, the more he will have to adapt his behaviour to survive in the prison environment. She submitted that this will reduce his prospects of effective

_{reintegration on release, which is not in the interests of justice.}

¹ _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750 (CA).}

² _{Gonzales v NZ Police [2013] NZHC 1691 and Paia v R [2014] NZCA 107.}

³ Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 (CA).

[14] Ms Te Whata submitted that the Judge did not have before him a full submission based on the relevant authorities, as to the appropriate starting point and relevant mitigating factors. In particular, there was no reference to R v AM, or Churchward v R.

[15] Ms Pollett submitted for the respondent that when determining the bail application with s 13 of the Bail Act in mind, the trial Judge had heard all of the evidence. It was significant, she submitted, that he is an experienced trial Judge and in particular, a presiding Youth Court Judge. The Judge was, therefore, well aware of all of the relevant sentencing issues affecting the appellant.

[16] Ms Pollett submitted that the Crown agrees that the appellant’s offending falls within band one of R v AM. However, there is disagreement as to where, in that band, it falls. Ms Pollett submitted that the Crown will submit at sentencing that the starting point should be around three years’ imprisonment. The Crown will also submit at sentencing that the evidence at trial does not establish an honest, if unreasonable, belief in consent. Ms Pollett submitted that there would need to be very substantial discounts for the appellant’s youth and good character to take the end sentence below two years, such that home detention could be considered.

[17] Ms Pollett submitted that all of the relevant material with respect to those issues were before the District Court Judge and were taken into account, and that there was no error in the Judge’s exercise of his discretion. She further submitted that the Judge’s decision to refuse bail could not be said to be plainly wrong.

Discussion

[18] A challenge on appeal to a bail decision is an appeal against the exercise of a discretion. The appellant must show that the Judge made an error of principle, failed to take into account all relevant matters, took into account irrelevant matters, or was plainly wrong.

[19] Section 13 of the Bail Act sets out the relevant principles as to bail pending sentencing. The Court has a limited discretion. To paraphrase s 13, the Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in

the interests of justice in the particular case to do so. The onus is on the appellant to establish that bail should be granted, and when considering the interests of justice, the Court may take into account whether the appellant is likely to receive a sentence of imprisonment, the length of time before sentencing, the personal circumstances of the appellant and his family, and any other considerations the Court finds relevant.

[20] Pursuant to s 128(b)(ii) of the Crimes Act the appellant, as a person convicted of an offence of sexual violence, must be sentenced to a imprisonment unless, having regard to his particular personal circumstances and the particular circumstances of the offence including the nature of the conduct constituting it, the Court thinks he should not be sentenced to imprisonment.

[21] In his sentencing judgment the Judge acknowledged that he had not heard submissions as to the relevant sentencing authorities. However, he had presided over the trial so he had heard all of the evidence, and submissions were made to him as to the relevant personal matters, and matters relating to the circumstances of the offence, such as have been made by Ms Te Whata today. Further, I accept Ms Pollett’s submission that the Judge could be expected to be familiar, at least in general terms, with the authorities of both R v AM and Churchward v R.

[22] I am satisfied that the Judge took all relevant considerations into account. Of course the weight the Judge gave to individual factors was a matter for the Judge.

Result

[23] In all of the circumstances I am not able to conclude that the Judge made any error in the exercise of his discretion, or that he was plainly wrong in deciding that

_{the appellant should not be granted bail and the appeal is accordingly dismissed.}

Andrews J