Adamson v Police
[2015] NZHC 2031
•26 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-196 [2015] NZHC 2031
BETWEEN QUENTIN ALAN ADAMSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 25 August 2015 Counsel:
M Utting for the Appellant
M Anderson for the RespondentJudgment:
26 August 2015
JUDGMENT OF DUFFY J
This judgment was delivered by me on 26 August 2015 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Utting Law, Milford
ADAMSON v NEW ZEALAND POLICE [2015] NZHC 2031 [26 August 2015]
[1] The appellant, Mr Adamson, was convicted on 14 July 2015 of possessing an offensive weapon and assaulting a person with a blunt instrument. He was sentenced to 80 hours’ community work and nine months’ supervision.
[2] Mr Adamson now appeals against the decision not to grant a discharge without conviction, and his sentence.
Facts
[3] The charges related to an incident on the morning of Sunday 25 January
2015. Mr Adamson’s neighbours across the street, who had recently moved in, had been having regular loud parties into the early morning. Noise control calls and discussions had apparently not resolved the issue. Around 4:30 am, Mr Adamson became increasingly agitated at the noise coming from the neighbour’s property. He took a sledgehammer with him, he says because he knew he would be outnumbered by drunk and potentially belligerent people and wanted to deter them from approaching him, and crossed the road to the neighbours’ property. The victim came out onto the front yard. Mr Adamson swung the sledgehammer at him, but he ducked. The victim suffered bruising to the side of his face.
[4] Mr Adamson’s affidavit records that he swung the sledgehammer in self- defence, though by pleading guilty to the Police summary of facts he has lost the ability to plead that defence. His affidavit also records that following the assault with the sledgehammer, he himself was assaulted and knocked unconscious. As a result he has lost some memory of the night in question. He suffered an injury to his left shoulder which has required ongoing physiotherapy, and paramedics carried out a check to make sure he had not been concussed during the assault. The victim impact statement, however, records that there was an ongoing fistfight after the sledgehammer was used.
[5] Mr Adamson’s most recent conviction dates from 1993. He has eight previous convictions arising from five different incidents, all related to traffic matters.
District Court Decision
[6] Mr Adamson pleaded guilty to charges of possessing an offensive weapon in a public place and assault with a weapon. Possession of offensive weapons or disabling substances under s 202A(4)(b) Crimes Act 1961 carries a maximum penalty of three years’ imprisonment. Assault with a weapon under s 202C carries a maximum penalty of five years’ imprisonment.
[7] On 14 July 2015 his application for a discharge without conviction was declined by Judge Maude in the North Shore District Court.
[8] The Judge correctly took the three-step approach in considering applications for discharge, as discussed below. He referred to the gravity of offence, concluding that it was “significant” but that there were also mitigating features. In assessing the likely consequences of conviction, he noted the letter from the employer that said that it was highly likely that a criminal conviction would affect Mr Adamson’s ongoing employment with the company.
[9] However, at the point where the Judge began to weigh the gravity of the offending against the consequences, there was apparently an error with the transcription, so his sentencing comments were not recorded. The Judge’s handwritten notes, which he made after the sentencing, and once he knew of the transcription error state that he recalls: (a) weighing the consequences of the conviction against the gravity of offending; (b) concluding that they were not out of proportion; and (c) consequently declining to exercise the discretion.
Mr Adamson’s Submissions
[10] Mr Adamson submits that the Judge erred in not taking into account relevant factors. In particular, it is submitted that the Judge never reached an overall assessment of the gravity of the offending. Additionally, the Judge mistakenly concluded that because his employer had not definitively said Mr Adamson would lose his job, the consequences were not sufficiently serious. Citing Asher J’s decision in Alshamsi v Police, Mr Adamson points out that the Court need only be
satisfied that there is a real and appreciable risk that the consequences cited will occur.1
[11] In respect of the sentence appeal, Mr Adamson submits that in imposing the community work sentence the Judge should have taken into account the 20 hours he had already voluntarily worked, and the $2,000 donation he had made (because due to his limited availability to do community work he considered that that would be a more helpful contribution than working). In respect of the supervision sentence, Mr Adamson says that supervision was unnecessary and inappropriate because he was already undertaking rehabilitative measures on his own initiative. This means that the objective of supervision, that it would reduce the likelihood of further offending, is not served because Mr Adamson has already adequately provided for it
on his own.2
Respondent’s Submissions
[12] The respondent submits that this is serious offending and therefore a discharge should not be granted. The submissions focus on the fact that the use of the sledgehammer could have caused serious harm; that Mr Adamson took some time to consider what to do. The respondent also says that Mr Adamson appears not to have fully accepted responsibility for his actions. Its justification for this assertion is that Mr Adamson says in his affidavit that he took the weapon as a deterrent; and his counsel’s submissions attribute the offending in part to the provocation and duress that Mr Adamson suffered. The respondent says that those submissions tend to attempt to excuse the defendant’s actions, and are inconsistent with real remorse. The respondent also referred to Mr Adamson’s failure to engage in restorative justice conferences. However, at the hearing the respondent accepted that owing to the recent change to the Sentencing Act, which places a greater emphasis on restorative justice conferences, the demand for those conferences in the District Court where Mr Adamson appeared for sentence was such that it could not provide him with the
opportunity to participate in one.
1 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.
2 Sentencing Act 2002, s 46.
[13] The respondent submits that there is no real evidence that Mr Adamson is any more likely than anyone else to lose his job. The evidence is “not certain” and is speculative. His employer will be able, in its discretion, to take into account the fact that he is a reliable worker despite his conviction.
[14] Therefore, the respondent submits that the consequences likely to arise from this conviction are no more serious than those likely to arise from any other. As such, they are not out of all proportion to the offending, and do not justify the grant of a discharge.
[15] In respect of the appeal against sentence the Crown submits that Judge Maude did not err, but accepts that the community work already undertaken should have been taken into account in setting the community work sentence. In this regard the respondent submits that a deduction of 20 hours should have been allowed for the voluntary community work already performed and a further deduction of 10 hours to reflect the donation. This would reduce the hours of community work to 50 hours. The respondent also sensibly and responsibly acknowledges that given Mr Adamson’s lack of a criminal history there was no need for the sentence of supervision.
Appeal against conviction and sentence
Approach to appeal
[16] This is a first appeal against conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011. The statutory threshold at s 232 for an appeal against conviction is that I must be satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or, in any case, a miscarriage of justice has occurred for any reason.
[17] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. This discretion is subject to the test in s 107 being satisfied. That test provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[18] When the s 107 test is met, the court then has a discretionary power to discharge under s 106. However, once the test is satisfied, this will usually result in a discharge.
[19] An appeal against a refusal of discharge is by way of rehearing with the appeal court making a new assessment in accordance with its own opinion.3 The Court of Appeal in R v Hughes concluded that as the s 107 test was not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion.4 An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.
[20] The approach to be followed in applying the s 107 test is set out in Z v R
where Arnold J held:5
... when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge.
[21] This approach requires the court to first determine the seriousness of the offense, having regard to both the aggravating and mitigating factors of the offense and also to those factors which apply to the offender. The court should then determine the direct and indirect consequences of conviction and determine if they
are out of all proportion with the gravity of the offending.
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
4 At [11].
5 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]
Analysis
[22] Whilst the sentencing Judge has attempted to provide an outline of his reasons for refusing to discharge without conviction, I am not prepared to rely upon it. Through no fault of the Judge, his reasons were not fully transcribed. His later attempt to recall and to provide an account of his reasons is appreciated but such ex post facto reconstructions of what transpired at a sentencing cannot provide a satisfactory basis to support his decision. I consider that the fair and proper approach is for me to approach this issue de novo.
[23] It is clear that this was serious offending. However, the question is whether, taking all the circumstances into account, the consequences of a conviction will be out of all proportion to the gravity of the offending.
[24] The offending involved offending with a high potential sentence. There was a small degree of premeditation, the weapon was potentially a powerful one, and it was used to attack the head.
[25] However, the actual injury caused was relatively minor, Mr Adamson has no history of violent offending, he has cooperated fully with Police and pleaded guilty at an early stage, he has voluntarily taken measures including donations, voluntary work and counselling, and he has provided glowing character references from his employer and other neighbours. Though not amounting to the level of provocation as described in R v Taueki, there was also some background to the offending.6 From Mr Adamson’s description of his work, it is clear that he was under significant stress and the noise issue was adding to that. It is also clear that he has largely reformed
himself since his previous offending, which is 22 years old and solely related to traffic offences.
[26] Mr Adamson provided the sentencing court with an affidavit explaining the long hours he had been working, the stressful nature of some of his work, and the recent loss of his father to whom he was close. Whilst the respondent has described this as an attempt to minimise the offending, I do not see matters that way. The
affidavit places in context how it came to be that Mr Adamson as an otherwise law abiding and respected member of his community came to behave as he did on 25
January 2015. I also note the supportive letters of Mr Adamson’s neighbours which attest to his good conduct and positive engagement with other members of his neighbourhood.
[27] I find Mr Adamson’s affidavit and the supporting letters of his neighbours convincing and credible, particularly as they relate to his general character and to the restorative measures he has since undertaken.
[28] The main consequence of a conviction, from Mr Adamson’s point of view, is that it will likely jeopardise his employment. He has provided a letter from his employer to that effect. I note that the Court need not be satisfied that the consequences complained of will necessarily result, only that there is a “real and appreciable risk” that they will.7 I think Mr Adamson has established that risk through the letter from his employer.
[29] My impression is that Mr Adamson has already done many of the things that would be required of him following sentence, in terms of voluntarily engaging in community work, making donations, and attending counselling. He has dealt with a great deal of stress, and he himself was not unharmed in the altercation. His response to the offending evidences his remorse, his recognition that he had allowed stress and lack of sleep to get the better of him and his determination to ensure the offending is not repeated. His affidavit reveals that he was going through a particularly stressful period of his life. The offending was very much out of character and he displays a great determination to ensure it does not occur again.
[30] Bearing all of that in mind, that he has no history of violence and that the harm caused to the victim was relatively minor, my impression is that a conviction, which would probably cause him to lose his job, would indeed be out of proportion to the offending.
[31] In this regard I also note that as well as the risk of losing his employment, a conviction can have ongoing general consequences when it comes to future employment.8
[32] I am satisfied therefore that the consequences of a conviction, particularly the probable loss of Mr Adamson’s job, would be out of all proportion to the offending, especially considering the remedial measures he has now taken.
[33] The fact that Mr Adamson has taken full responsibility for the offending, and the glowing recommendations of his neighbours, make me think that this is a case where I should exercise the discretion to discharge him without conviction.
Result
[34] The appeal is allowed. The refusal to discharge without conviction is set aside. On the two offences Mr Adamson is discharged without conviction pursuant
to s 106 of the Sentencing Act.
8 See R v Nash HC Wellington CRI-2009-485-007 at [19]; Taavili v Police [2012] NZHC 2323 at
[32]; and Tahitahi v Police [2012] NZHC 663 at [24]-[28].
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