Amstad v Police HC Auckland CRI-2011-404-000161
[2011] NZHC 1244
•6 September 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000161
BETWEEN PAENGAROA TIPENE AMSTAD Appellant
ANDPOLICE Respondent
Hearing: 30 August 2011
Appearances: R K Treloar for Appellant
E J Walker for Respondent
Judgment: 6 September 2011
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
6 September 2011 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Public Defence Service, PO Box 76 715, Manukau City, Manukau 2241
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
AMSTAD V POLICE HC AK CRI-2011-404-000161 6 September 2011
(a) Unlawfully taking a motor vehicle; (b) Driving with excess breath alcohol; (c) Failing to stop for police; and
(d) Dangerous driving.
[2] Mr Amstad was 19 at the time of the offending. He has aspirations of joining the army, having completed a year long preparatory course. He has favourable recommendations from his course tutor and from a Staff Sergeant/army careers recruiter. The conviction will preclude Mr Amstad from fulfilling those aspirations.
[3] The District Court Judge was aware of this, but was not satisfied that those consequences outweighed the concerns he had about the offending for the purposes of a discharge without conviction. The District Court Judge’s concerns were:
[10] My concerns are:
(1) A concerted course of action undertaken by you, first, drinking – no problem with that;
(2) Second, seeing what you identify straight away as a stolen vehicle, deciding to steal it yourself. That is indicative of a dishonest intent obviously;
(3) Third, knowing that you have been drinking, then deciding to get into that vehicle and drive it;
(4) Next, exposing others to a high level of risk by picking them up, knowing you have been drinking and using a stolen vehicle;
(5) Next, failing to heed the authorities request for you to stop, namely the red and blue flashing lights;
(6) Of most concern, in my view, was your decision to drive at almost three times the speed limit in order to get away from the police. Goodness knows how that may have ended – if a person on the footpath just decided to cross the road in front of you, you would have had absolutely no opportunity to come to a stop in order to avoid a person.
(a) Failed to give adequate consideration to the direct and indirect consequences of conviction; and
(b) Gave too much weight to the seriousness of the crime.
Jurisdiction
[5] As recorded by the District Court Judge the guiding principles for discharge without conviction are found in s 107 of the Sentencing Act 2002 which reads:
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.
[6] The Judge also correctly cited the three-step process by which a decision is made under s 107 namely:
(1) To identify the gravity of the offending by reference to the particular facts of the case;
(2) Identify the direct and indirect consequences of a conviction;
(3) Determine whether those consequences would be out of all proportion to the gravity of the offending.
[7] The appellant accepts for the purposes of Step 1 that the offending is serious and does not challenge the District Court Judge’s assessment of the concern. The focal point of the appeal is that steps 2 and 3 were not appropriately discharged.
[8] With the benefit of argument, the appellant’s case centred on two key aspects:
(a) The appellant’s youth; and
(b)The absolute and immediate effect of conviction in precluding a career path with the armed forces.
(a) Supporting the Judge’s finding and balancing exercise;
(b)Reminding me that youth is not directly relevant to the gravity of the offending, except where it is an element of the offence; and
(c) The gravity of the offending outweighed the consequences for the appellant even if his youth is taken into account.
Application of s 107
[10] The Court of Appeal in R v Hughes1 stated:
[41] In summary, the parameters within which the disproportionality principle operates have not been changed by s 107. Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
[11] This was apparently qualified by the Court of Appeal in Blythe v R:2
[11] That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A which deals with cases of violence against and neglect of children under 14 years, are obviously relevant to “the gravity of the offence”. But the content of ss 7, 8 and 9 is not. For two reasons, we wonder whether the passage we have set out at [10] is an inadvertent misstatement. First, it cannot be reconciled with the correct statement of the position in the excerpt we cite at [9]. Secondly, it does not reflect the Court’s approach in reviewing the way in which Gendall J applied the s 107 disproportionality test.
[12] As I said in Singh,3 I respectfully approach the assessment on the basis that the principles, purposes, and other factors listed in the Sentencing Act might be
relevant to “gravity”, “consequences” and “proportionality” where there is a clear
1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
2 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
3 Singh v Police HC Auckland CRI-2011-404-00008, 29 August 2011.
nexus between those matters and the relevant provision of the Sentencing Act. I believe that was confirmed by Blythe where the Court held that, for example, s 9A was relevant to the assessment in the context of young victims. Beyond that, an assessment under those principles, purposes and other factors is reserved to the full s 106 evaluation.
Assessment
[13] I propose to set out the framework through which I consider the s 107 assessment should have been undertaken in this case and then review the District Court judgment with that in mind.
Step 1
[14] There is no dispute that the offending was serious for the reasons stated by the District Court Judge. The combination of offending, particularly inclusive of driving while intoxicated and speed are particularly aggravating.4
[15] Is the youth of the defendant relevant to the assessment of gravity? The Court in R v E5 approached the setting of a starting point for the purposes of sentencing in this way when dealing with offending by youth:
[18] As this Court made clear in R v Taueki [2005] 3 NZLR 372 at [8] and [43]-[44], the first step in the sentencing process is to identify a starting point that reflects the culpability inherent in the offending. That should identify the sentence considered appropriate for an adult offender after a defended hearing. Once that has been done, the aggravating or mitigating circumstances in relation to the offender’s particular personal circumstances must be considered in order to determine whether the sentence imposed should be higher or lower than the starting point.
[19] In a case such as the present, this methodology means that circumstances personal to the offender, such as youth and immaturity, should be put to one side at the first stage when the starting point is fixed, and should be brought into consideration at the second stage. This was what happened in Castles and is the effect of what the Judge did in the present case. There was no error of principle in this approach.
4 R v Skerrett CA236/66 at [12] and [13].
5 R v E [2007] NZCA 133.
[16] By parity of reasoning, when identifying the seriousness or gravity of the offending, the appellant’s youth should be put to one side on the basis that Step 1, like setting a starting point, is concerned with the “culpability inherent in the offending”. This may be nuanced slightly given that one of the offences is premised on the appellant’s youth, namely the excess breath alcohol charge. But it is the fact of his youth that triggers the culpability and it would be illogical to downplay the gravity of the offending on the basis of his youth alone.
[17] I therefore proceed on the basis that the appellant’s youth is not a
“mitigating” feature per se in assessing the gravity of the offending.
[18] As the respondent accepted, youth may be relevant to the assessment of the lack of premeditation. Commonly this might be viewed as a lack of an aggravating feature. But for the purpose of s 107, which deals specifically with the “gravity” of the offending, I consider it is relevant to factor in a lack of premeditation so as to place the offending at the proper end of the gravity spectrum.
[19] I also consider in this context it is apt to observe that special attention is given to “harm done to the victim and the community”, and “the interests of the victim” by s 7. Those are statutory indicia that “harm” to a “victim” is particularly relevant to the assessment of gravity. In my view the lack of physical harm is relevant insofar as it connotes the absence of an aggravating factor.
Steps 2 and 3
[20] I will deal with these steps together as I consider that the appellant’s youth is an inherent feature of both. The assessment of the consequences and proportionality must include the offender’s youth – indeed, it must be a primary consideration. As the Court of Appeal summarised in Pouwhare v R:6
When sentencing a young person, therefore, a judge should, to the extent that this is consistent with the letter of the Sentencing Act, act in accordance with the Convention and, in particular, should treat the young person’s “best interests” as a “primary consideration” [pursuant to Article 3.1 of the United Nations Convention on the Rights of the Child].
6 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [82].
[21] The same Court did however emphasise that there can be no warrant for saying that youth, of itself, must always prevail as a paramount value on sentence, or that youth alone can justify radically reducing the sentence which would otherwise be proper.7
[22] Be that as it may, in my view youth is clearly a primary consideration. The Convention itself provides a principled basis for this. Furthermore, by dint of youth alone the consequences of conviction are more significant for a young offender. The brand of a conviction for young people who do not have a foothold in a career can be permanently damaging. This feeds inextricably into an assessment of the proportionality as between the seriousness of the offence and the consequences.
[23] I note for completeness that, in a technical sense, the appellant may not be considered to be a “youth” for the purposes of the Convention on the Rights of the Child.8 However, as evident from the elements of the offending itself, in our law a person of 19 years is considered to be a youth and is therefore to be treated accordingly.
The District Court decision
[24] The decision cogently articulates the reasons for refusal to discharge without conviction, applying the three-step approach mandated by the Court of Appeal in Hughes. But with respect to that careful reasoning, I do not consider that the Court has placed sufficient emphasis on the defendant’s youth when addressing Steps 2 and 3. There is in fact no overt reference to the defendant’s youth in the notes on sentencing. While I have little doubt that the District Court Judge was aware of the defendant’s age, it is not at all clear to me that this was a primary consideration in the assessment at those Steps. For my part I consider it to be a key factor in properly understanding the severity of the consequences to the appellant of conviction. This is not simply about lost work opportunity. This is about setting the pathway forward for a young man who demonstrably aspires to joining the armed forces. Conviction
is an extremely severe consequence for the appellant. It is also a highly undesirable
7 At [83].
8 Article 1.
consequence for his family and for the community at large. It is relevant and exceptional in my view that the defendant is seeking to commence his working life in public service, namely in the army. Precluding him from doing so is a significant loss to him and to the community.
[25] Turning to the issue of proportionality. As I have said, the offending was serious. The concerns raised by the District Court Judge were legitimate. But focusing on the facts, various charges arose out of a single continuing act of stupidity rather than premeditation. His behaviour is best described as foolishly opportunistic and foolishly dangerous. The potential for great harm was very high. But it needs to be said that, albeit fortuitously, no person was directly injured or harmed save for the theft of property. Overall therefore I consider that while the offending was serious, it was not in a category that made refusal under s 107 inevitable.
[26] Accordingly, when I examine the actual harm done and compare that with the various serious consequences of conviction for the appellant and the loss of benefit to the community, I respectfully reach a different conclusion to the District Court Judge. The lifelong consequences of conviction for the appellant and his family and the community would be out of all proportion to the severity of the foolish yet relatively brief offending by the appellant.
[27] Turning to the wider assessment under s 106, including reference to purposes and principles set out in ss 7, 8 and 9, I see no compelling reason under those matters to refuse to grant a discharge without conviction. If anything, application of those principles favours leniency in a context where the public stands to benefit in a considerable way by the appellant committing himself to working life in the army.
Outcome
[28] Given the foregoing, I am minded to set aside the convictions. However, I want to hear from counsel on the best method of securing the outcome envisaged by this judgment, namely an ongoing commitment by the appellant to commencing working life in the armed forces or similar public service. This might include, for example, written confirmation of lodgment of an application to join the army. This
is significant to assessment of proportionality and the s 106 resolution. I therefore invite memoranda within 14 days, hopefully by agreement, as to the appropriate
framing of any final order in this regard.
Whata J
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