IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI-2024-419-97 [2024] NZHC 2914	

BETWEEN	DANIEL FRANSICO TANIELU
Appellant	
AND	THE KING
Respondent	

Hearing:	2 October 2024	
Appearances:	M James for the Appellant
A Penney for the Respondent	
Judgment:	8 October 2024	

JUDGMENT OF GORDON J

This judgment was delivered by me on 8 October 2024 at 3.30 pm

Registrar/Deputy Registrar Date:

Solicitors/Counsel: Hamilton Legal, Hamilton
M James, Barrister, Hamilton

TANIELU v R [2024] NZHC 2914 [8 October 2024]

Introduction

[1]	The appellant, Daniel Fransico Tanielu, pleaded guilty to a charge of indecent assault on a person over 16.1 His application to be discharged without conviction was declined by Judge R G Marshall in the District Court at Hamilton.2 He now appeals that decision.

Background

[2]	On 15 December 2023 at approximately 11.12 pm, Mr Tanielu and the victim were both outside The Bank on Victoria Street, Hamilton.

[3]	Mr Tanielu and his friend were sitting behind the victim who was carrying out his duties as a Police officer.

[4]	Mr Tanielu reached out with his left arm and used his finger to poke the anus area of the victim.

District Court decision

[5]	Judge Marshall first referred to s 107 of the Sentencing Act 2002 (Act) which sets out the threshold test that must be met before the discretion under s 106 can be exercised. The Judge then referred to the Court of Appeal’s three-stage approach set out in Z v R:3

(a)	First, the Court must consider the gravity of the offending which includes all the aggravating and mitigating factors relating not only to the offending but also to the offender.

(b)	The Court, as the second step, should then identify the direct and indirect consequences of a conviction for the offender.

1	Crimes Act 1961, s 135. Maximum penalty: seven years’ imprisonment.
2	Police v Tanielu [2024] NZDC 18379.
3	Z v R [2012] NZCA 607.

(c)	Thirdly, consider whether those consequences are out of all proportion to the gravity of the offence.

[6]	The Judge noted that if the Court considers the consequences to be out of all proportion, it must consider whether it should exercise its residual discretion to grant a discharge.

[7]	In relation to the aggravating and mitigating factors, the Judge set out the submissions made by the Police about the impact of the offending on the victim. It was noted that the victim was left feeling violated, has trouble trusting people he does not know that are behind him, and it has affected his head space at work. The Judge considered a further aggravating feature of the offending to be the fact that the victim was acting in the course of his duties as a Police officer at the time of the offending. The Judge considered there to be no mitigating factors, particularly where intoxication was involved. The Judge also noted the Police’s acknowledgement of an early guilty plea, the lack of any previous convictions and Mr Tanielu’s remorse.

[8]	The Judge considered the offending to be a moderately serious act. He noted that it was a degrading and humiliating act towards a frontline Police officer in the course of duty.

[9]	In addressing the direct and indirect consequences of a conviction, the Judge noted that Mr Tanielu had told his employer, Te Whatu Ora, of the charge. As a consequence, Te Whatu Ora had changed Mr Tanielu’s role as a security guard where he was required to deal with and manage difficult patients, to a community role. In that changed position he was working in tandem with another co-worker which had resulted in a reduced income. The Judge noted that his demotion, and the reduced income was a real consequence of the charge he faced. The Judge also found it to be evident that Mr Tanielu’s employer’s stance at the time was “a wait and see what happens at court” before any final decisions were made regarding Mr Tanielu’s employment.

[10]	The Judge also noted submissions regarding the impact of Mr Tanielu’s conviction on his future employment opportunities, and ultimately, on his ability to

provide for his family. The Judge also outlined submissions regarding the alleged impact on Mr Tanielu’s ability in the future to obtain rental accommodation and the potential restrictions on Mr Tanielu’s ability to travel to Tonga (his wife is Tongan) if he was convicted.

[11]	In considering whether the direct and indirect consequences of Mr Tanielu’s conviction would be disproportionate to the gravity of the offence, Judge Marshall noted:

[28] I have determined that the offending is moderately serious for the reasons I have given. I accept that Mr Tanielu has taken concrete steps to address the underlying causes, but I find in this case the employer does not know and would be entitled to know of this type of offending and it is valuable information for an employer as evidenced here, where the employer stood Mr Tanielu down from his role as a security guard around vulnerable people. That recognised that this lack of judgment may mean these types of roles at present are outside the scope of Mr Tanielu’s orbit until he has undergone more education and developed more maturity in this area. As to the general travel and rent consequences they are the ordinary consequences of a conviction.

[12]	Based on these reasons, the Judge concluded that the direct and indirect consequences of a conviction would not be disproportionate to the gravity of the offence.

[13]	While the Judge declined Mr Tanielu’s application for a s 106 discharge, he commended Mr Tanielu on the steps he had taken to date.

Submissions

[14]	Ms James, counsel for Mr Tanielu, submits that the sentencing Judge overstated the gravity of the offending by placing undue weight on the aggravating features of the offending. She acknowledges that the offending was an indecent act towards a Police officer while he was carrying out his duties. However, she notes that the offending was spontaneous, very brief,  over  clothing,  and  committed  while Mr Tanielu was intoxicated. She submits that there was no suggestion of any planning or that the offending was for sexual gratification.

[15]	In respect of the mitigating factors, Ms James submits that Mr Tanielu pleaded guilty and was remorseful. She also notes that Mr Tanielu has no previous convictions,

the incident was a one-off and out of character. She refers to Mr Tanielu’s efforts to address his alcohol use with CareNZ.

[16]	Ms James submits that when assessed properly, the gravity of Mr Tanielu’s offending is low taking into account both the aggravating factors of the offending and the mitigating factors of Mr Tanielu.

[17]	Ms James notes that the direct and indirect consequences of the conviction on Mr Tanielu are significant, particularly his employment. However, she submits that insufficient weight was placed on this by the sentencing Judge.

[18]	The position regarding Mr Tanielu’s employment has changed since the hearing in the District Court. Ms James provided a letter from Te Whatu Ora dated 13 September 2024 which records that to avoid the disadvantage of having his employment terminated for serious misconduct, Mr Tanielu chose to resign from his position. Therefore, Ms James submits the consequences of a conviction would be out of proportion to what was a one-off, isolated, and out of character offence.

[19]	Ms Penney for the respondent, submits that the sentencing Judge correctly considered the gravity of the offending and placed the appropriate weight on the aggravating features of the offending. She notes that the impact of Mr Tanielu’s offending on the victim has been considerable and should be taken into account when assessing the gravity of the offending.

[20]	Ms Penney accepts that there will be some direct or indirect consequence of a conviction being entered, as there will be with any conviction, but she submits it is a natural consequence of criminal behaviour.

[21]	In response to Ms James’ submission that Mr Tanielu would struggle to find alternative employment if his current employment was terminated, Ms Penney submits, it is not for the courts to hide information from prospective employers and that employers have a right to consider each prospective employee’s application on their own merit.

[22]	Ms Penney submits that the sentencing Judge gave appropriate consideration to the potential consequences of Mr Tanielu’s conviction and that the conviction is not disproportionate to the gravity of the offending.

Legal principles

[23]	Mr Tanielu appeals his conviction as of right.4 This Court must allow the appeal if it is satisfied that, in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.5 A miscarriage of justice is defined as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.6

[24]	An appeal against conviction proceeds by way of rehearing.7 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.8 The appellant must show that an error has been made. The appellate court must remember the advantages a trial judge has, especially where the challenge is to credibility findings based on contested oral evidence.9

Analysis

[25]	I will follow the usual three stage approach in my consideration of the appeal.

Gravity of the offending

[26]	In Rahim v R, the Court of Appeal made the observation that care needs to be taken not to lose sight of the particular facts of any case by undertaking an analysis of gravity by reference to other cases. The Court noted that while consistency of

4	Criminal Procedure Act 2011, s 229.
5	Section 232(2)(b)–(c).
6	Section 232(4).
7	Sena v Police [2019] NZSC 55 at [32].
8	At [38].
9	At [38].

sentencing is an important principle, the circumstances in which indecent assault may occur are infinitely various.10 In that regard, the Court noted that:11

In indecent assault cases, the sentencing court is required to assess the seriousness of the criminal conduct involved by reference to factors such as the duration and nature of the contact; the precise details of what part of the complainant’s body was touched; and whether there was skin to skin contact. All indecent assaults are treated seriously by the courts, but contact with the complainant’s genitalia or in proximity to the genitalia will obviously be regarded as more serious than, say, a non-consensual kiss on the complainant’s face.

[27]	Despite the Court of Appeal’s cautionary note regarding a comparison with other cases, the facts of Rahim and the Court’s assessment of the gravity of the offending provide a useful comparison, nevertheless. The Court of Appeal adopted the District Court Judge’s description of the agreed summary of facts as follows:12

Mr Rahim was working as a schedule co-ordinator at the Auckland City Hospital and at 2.30 pm Friday 28 April 2017 the [complainant] was at the Auckland City Hospital with her mother. The [complainant] is a 16 year old student and she is a female. Mr Rahim entered the lift and his hand made very brief contact with the back of the [complainant’s] shorts. The [complainant] and her mother exited the lift and Mr Rahim had a discussion with the mother enquiring whether a wheelchair was needed. The [complainant] and her mother entered another lift in the Starship ward followed by Mr Rahim. As the [complainant] exited the lift Mr Rahim’s hand made firm contact with her bottom. The [complainant] cried out in distress and told her mother and security what had happened. Mr Rahim told the police that he bumped the [complainant’s] bottom once by accident and denied touching her a second time. Obviously, by pleading guilty and by virtue of the material that is now before the Court Mr Rahim now accepts that he deliberately touched the [complainant’s] bottom on the second occasion.

[28]	Despite the age of the victim and the defendant being a provider of services in a hospital, taking into account the facts of the offending, the mitigating factors applicable to Mr Rahim, and his response to the prosecution, the Court of Appeal rated Mr Rahim’s conduct as low on the scale of seriousness.13

[29]	In the present case, the Judge noted that an assessment of the gravity of the offending must include all the aggravating and mitigating features of not only the offending but also the offender. The Judge also referred to submissions on behalf of

10	Rahim v R [2018] NZCA 182 at [18].
11	At [16].
12	At [7].
13	At [22].

Mr Tanielu regarding the gravity of the offence. Those submissions included matters personal to Mr Tanielu.14

[30]	However, when the Judge made his assessment, he said:15

I consider it to be a moderately serious act. It was a degrading and humiliating act directed towards a frontline police officer in the act of duty.

[31]	In other words, despite the Judge’s statement as to what the Court takes into account in making the gravity assessment, it appears that he did not factor in matters personal to Mr Tanielu in doing so.

[32]	When the offending itself is considered, the summary of facts is somewhat skeletal. It is limited in its description of the events. I have already referred to the events as described in the summary of facts in [2]–[4] above. I repeat those paragraphs here for ease of reference:

(a)	On 15 December 2023 at approximately 11.12 pm, Mr Tanielu and the victim were both outside The Bank on Victoria Street, Hamilton.

(b)	Mr Tanielu and his friend were sitting behind the victim who was carrying out his duties as a Police officer.

(c)	Mr Tanielu reached out with his left arm and used his finger to poke the anus area of the victim.

[33]	There is no suggestion that Mr Tanielu inserted his finger in the Police officer’s anus. The allegation is that he “poked” the officer in his anus area. This was over clothing.

[34]	It appears that the touching was spontaneous and brief. It is also apparent that Mr Tanielu’s conduct was because, when intoxicated, he thought it was funny, rather than for any sexual gratification. On the other hand, the fact that the victim was a

14	Police v Tanielu, above n 2, at [10].
15	At [14].

constable acting in the course of his duties is an aggravating factor.16 There is also the effect on the victim who said the act left him feeling violated and that he believes he should feel safe at work. He also says he has trouble trusting people he does not know who are behind him.

[35]	As regards mitigating factors personal to Mr Tanielu there is the following. He was 26 years of age at the time, he is married, and has no criminal history. Since the offending, he has undertaken alcohol counselling with CareNZ. It appears his offending was out of character. Letters were provided by his uncle and a member of his church confirming his usual good character. He had a good work reference and no concerns had previously been raised about his behaviour. Mr Tanielu pleaded guilty at an early stage and had submitted a written apology to the victim. He was open to attending restorative justice but it appears the victim was unwilling to engage.

[36]	When all those matters are factored in, my assessment of the offending is that it is low on the scale of seriousness. In making that assessment, I do not disagree with the District Court Judge’s deprecation of the indecent assault. The Police are entitled to feel safe in carrying out their duties. I also do not seek to diminish the effect on the victim. However, I consider the Judge overstated the gravity by assessing it as moderate.

Direct and indirect consequences of a conviction

[37]	In the District Court, as well as relying on employment issues, counsel for  Mr Tanielu also submitted that a conviction could jeopardise Mr Tanielu’s ability to obtain further rental accommodation in the future and that he may not be able to travel to Tonga with his wife, who is Tongan. On appeal, Mr Tanielu only pursued the issue of the effect of a conviction on his employment.

16	Sentencing Act 2002, s 9(1)(fa).

[38]	At the time of the District Court hearing, although Mr Tanielu’s employer had changed his role, there had been no final decision as regards his employment. That position has now changed. As noted above, the Court was provided with a letter dated 13 September 2024 from Te Whatu Ora. That letter includes the following:

In light of his conviction and subsequent media reports, Health NZ Waikato discussed with Mr Tanielu his inability to continue working for our organization in any capacity. To avoid the disadvantage of having his employment terminated for serious misconduct, Mr Tanielu chose to resign from his position effective immediately. Health NZ Waikato supported the resignation.

[39]	In other words, Mr Tanielu has  now  lost  his  job and  any other  role  with Te Whatu Ora because of his conviction. The loss of his job has a direct impact on Mr Tanielu’s ability to support his family.

[40]	The 13 September 2024 letter goes on to say:

Should Mr Tanielu be successful in having his conviction overturned, Health NZ Waikato would consider an application for reemployment with our organisation.

[41]	The letter does not definitely say that Mr Tanielu would be re-employed. However, I note that earlier in the letter it is said:

We witnessed him conducting himself professionally at all times and with a sense of duty to his role. He was a valued member of his team and the wider service and had worked hard to fulfil the requirements of his role.

Proportionality assessment

[42]	In making an assessment as to whether the consequences of a conviction would be out of all proportion to the gravity of the offence, it is not useful to apply any gloss to the  statutory  wording or to  redefine  the  test.  As  the  Court  of Appeal  said in R v Hughes:17

The test is the test. Simply, under s 107 the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, before it may consider the exercise of the discretion conferred by s 106 to discharge without conviction.

17	R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [23].

[43]	Given the low level of seriousness of the offending and the adverse consequence of loss of his employment as a result of his conviction, the outcome of the proportionality assessment favours a discharge without conviction. I am satisfied that the conviction should not stand.

Result

[44]	The appeal is allowed.

[45]	The conviction is quashed.

[46]	Mr Tanielu is discharged without conviction under s 106 of the Act.

Gordon J