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‘Spiritual resolve weakened’

Judge rejects defence argument for discharge without conviction.

A Samoan man “barely had his foot in the door” to New Zealand before he committed a serious sexual offence, a prosecutor told Gisborne District Court.

Ioane Lui Tumua, 23, pleaded guilty to indecent assault — a three strike qualifying offence punishable by up to seven years’ imprisonment.

Crown solicitor Steve Manning strongly opposed an application for a discharge without conviction, saying the offence was too serious and happened only about two and a half months after Lui Tumua arrived in New Zealand having won the right to live and work here in a ballot.

Judge Warren Cathcart refused to grant the application and imposed one month’s home detention.

The sentence took into account a lengthy time Lui Tumua had spent without incident on electronically-monitored bail – 378 days – and 68 days he spent in custody.

According to an agreed summary, an intoxicated Lui Tumua wandered along part of Ormond Road at night on March 7, last year, trying to find “sexy ladies” before entering the Lytton Road home of a woman who was on her own. He put his hand down her pants, and forcibly kissed her, only desisting and running away when she managed to scream.

Arguing for the discharge without conviction, counsel Michael Lynch submitted a conviction would result in Lui Tumua being deported, which (as per a legal test) would be a disproportionately severe consequence for the offence.

Mr Manning said deportation was the normal legislated consequence for someone who offended that way.

A review of an immigrant’s residency status is automatically triggered if they are convicted of an offence punishable by more than three months imprisonment. Lui Tumua’s application essentially asked the court to usurp that function by Immigration New Zealand, Mr Manning said.

If the court granted the application, it would effectively be saying nothing happened and would be enabling Lui Tumua to avoid the legislated check on whether he was an appropriate person to remain in New Zealand, Mr Manning said.

Mr Lynch argued that while the offence was serious, the court was entitled to view it at a reduced level by taking into account personal mitigating factors, of which there were many in this case.

If convicted for this offence, there was no other legal mechanism by which Lui Tumua could avoid being deported — his case would not meet the high threshold required for humanitarian grounds, Mr Lynch said.

Lui Tumua was extremely remorseful for his actions and was willing to attend restorative justice, albeit the victim declined. He had engaged with appropriate counselling, attending four sessions to date.

He was of otherwise good character with no previous convictions here or overseas.

He was a committed member of the Assembly of God church. But the offending happened at a time when he felt isolated in a new country. A cultural report described him as being “physically, mentally, spiritually, and culturally impaired” at the time and said his circumstances had “weakened his spiritual resolve”, Mr Lynch said.

A conviction would bring Lui Tumua and his family huge shame, especially within their church, Mr Lynch said.

He also pointed to Lui Tumua’s good compliance with the lengthy period of electronically-monitored bail. While on EM-bail he was helping care for his aunt and uncle’s large family in Auckland and they would struggle in his absence if he was deported.

The offending was fuelled by alcohol, albeit Lui Tumua accepted that could not mitigate it, Mr Lynch said.

Refusing to grant the application, Judge Cathcart said the matters raised by Mr Lynch were not enough to reduce the seriousness of the offence to anything less than moderate therefore deportation would not be a disproportionately severe consequence.

The offence had included premeditation, home invasion, and persistence by Lui Tumua.

Lui Tumua had not offended because of the impairments cited in the cultural report, but simply because he was drunk, Judge Cathcart said.

Determining the sentence, the judge set a starting point of 16 months imprisonment. He gave a full 25 percent (four months) discount for Lui Tumua’s guilty plea, six months discount for time on EM-bail, and further discount for personal matters.

Conversion of the remaining sentence of imprisonment to home detention was appropriate, the judge said.

Lui Tumua was assisted in court by an interpreter.