Allen v Police - [2021] NZHC 981

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000178

[2021] NZHC 981

IN THE MATTER of an appeal against refusal to grant a discharge pursuant to s 106 of the Sentencing Act 2002

BETWEEN

SHAUN PATRICK ALLEN

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 4 May 2021

Appearances:

K J Gray for Mr Allen

S M H McManus for Respondent

Judgment:

5 May 2021

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 5 May 2021 at 4.00 pm

Registrar/Deputy Registrar Date:

ALLEN v THE NEW ZEALAND POLICE [2021] NZHC 981 [5 May 2021]

Introduction

[1] On 30 July 2020 the appellant, Mr Allen, applied for a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) in respect of one charge of assault (the application).1 Judge Brandts-Giesen declined the application and convicted Mr Allen.2

[2] Mr Allen was fined $100 plus court costs and ordered to pay $600 in emotional harm reparation. Mr Allen appeals the conviction, fine and reparation.

[3]Mr Allen also applies for leave to file his appeal out of time.

Background

[4] Mr Allen and the victim lived together as flatmates during the COVID-19 level 4 lockdown in 2020. The relationship between the two deteriorated during this period. The victim considered Mr Allen was not complying with lockdown requirements and was concerned as she was immunocompromised.

[5] At about 5.30 pm on 3 April 2020 Mr Allen returned to the flat. The victim had locked the door and told Mr Allen to leave as he was continuing to disregard lockdown restrictions. The victim opened the window to communicate with Mr Allen. Mr Allen grabbed the window, opened it wider and attempted to climb in. Mr Allen then spat directly into the victim’s face. The saliva ran down her face, entering her eyes and mouth.

[6] When police attended, Mr Allen stated he had sneezed rather than spat at the victim.

[7] The victim was undergoing chemotherapy at the time of the assault. As a result of the assault she was required to undergo medical tests and has suffered panic attacks since.

1 Crimes Act 1961, s 196.
2 Police v Allen [2020] NZDC 15364.

The District Court decision

[8] The Judge commenced his decision by canvassing the facts of the offending. He then went on to consider the application, adopting the statutory test under s 107 of the Act to determine if Mr Allen had met the requisite threshold for the granting of a discharge without conviction.

[9] In mitigation, counsel for Mr Allen, Ms Gray, submitted he was remorseful, had no prior convictions and was only 21 years old. Mr Allen, himself, was the victim of an assault in 2019 which had heightened his pre-existing condition of anxiety.

[10] The Judge noted that the primary consequence of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v Police

Details

AGLC: Allen v Police [2021] NZHC 981
Case: [2021] NZHC 981
Decision Date: 5 May 2021

CaseChat Overview and Summary

In this case, the appellant, Mr Allen, appeals the District Court's decision to decline his application for a discharge without conviction under s 106 of the Sentencing Act 2002 and convict him of one charge of assault. The court must decide whether a miscarriage of justice occurred, warranting the appeal to be allowed. The appeal against conviction and sentence is refused.

Mr Allen was living with the victim during the COVID-19 lockdown in 2020. Their relationship deteriorated, and on 3 April 2020, Mr Allen spat in the victim's face. The victim, who was undergoing chemotherapy, suffered emotional harm as a result of the assault. Mr Allen was convicted, fined $100 plus court costs, and ordered to pay $600 in emotional harm reparation. He appeals the conviction, fine, and reparation. The appeal is heard on the basis of a miscarriage of justice or a material error by the sentencing judge.

The District Court Judge was correct to assess the gravity of the offending as serious. The assault occurred during the COVID-19 lockdown, and the victim was vulnerable due to her compromised immune system. Although Mr Allen had no prior convictions and was only 21 years old, the court found the consequences of conviction were not out of proportion to the gravity of the offending. Mr Allen's application for a Dutch passport may be declined, but this consequence is not as significant as Mr Allen claimed, as he may have been able to obtain permanent residency in the Netherlands.

The appeal against conviction and sentence is refused. The court orders suppression of the victim's identity under s 202(1) of the Criminal Procedure Act 2011.

Orders