Annett v Police

[2013] NZHC 299

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-27 [2013] NZHC 299

STACEY BROOKE ANNETT

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 February 2013

Counsel:         R Gould for Appellant

S O'Donoghue for Respondent

Judgment:      25 February 2013

JUDGMENT OF MILLER J

[1]    Ms Annett wants a discharge without conviction for the summary offence of assault.[1]   She was denied it in the District Court, hence this appeal.

[1] Summary Offences Act 1981, s 9. The charge was originally laid under the Crimes Act 1961.

[2]    The summary of facts on which Ms Annett entered her guilty plea records that she was involved in an altercation with the female victim at a bar at Kaikoura at about 1.50 am on 23 September 2012.   The victim repeatedly demanded in crude terms that Ms Annett leave her alone, but instead Ms Annett punched her once, the blow connecting with the left side of her head.  The victim suffered no significant injuries.  Ms Annett admitted the facts, explaining that the victim had got in her face

and saying that the punch was not a hard one.

ANNETT v NEW ZEALAND POLICE HC BLE CRI-2012-406-27 [25 February 2013]

[3]    Ms Annett is 21, with two previous conviction for driving with excess alcohol, one for breach of a liquor ban and another for a minor breach of a community work sentence.  These convictions ruled out diversion.

[4]    The police did not oppose her application for a discharge, apparently because the victim acknowledged that she had provoked Ms Annett and the assault was a minor one.   This appears to explain the amendment to a Summary Offences Act offence.  Ms Annett had begun alcohol counselling, written a letter of apology, and offered to engage in a restorative justice meeting, which the victim did not want. She offered good character references.

[5]    The  Judge  approached  the  analysis  under  sections  106  and  107  of  the Sentencing Act in an orthodox manner.   He did not regard the offence as trivial, noting that  it  involved  actual  violence  and  a  blow  to  the  head.    Ms  Annett  is generally of good character, and she is making an effort to make her way in the world.  She had obtained a qualification in hairdressing.  But she could point to no specific direct or indirect consequences of conviction.  The most that counsel could say was that any young person with such a conviction will face greater difficulty getting employment than she would otherwise do.  He accepted that, but it was an inevitable and intended consequence of conviction.

[6]    In this Court Ms Gould emphasised that the gravity of the offence was low.  It was reduced to a summary offences charge because the Police recognised persistent provocation by the victim, who had also been drinking.  Ms Annett had recognised her problem with drink and completed four counselling sessions before sentence.  A report from the counsellor spoke highly of her, describing her as bright, pleasant and honest, with strong social support.  The Judge made no mention of her progress in dealing with alcohol.  References described her as a kind-hearted and usually law- abiding member of the community.  She wants to train as a beautician, and fears that a conviction might preclude admission to the training course or subsequent entry to Australia, where she wants to live.

[7]    Not all of this is accepted by Crown counsel.  Ms O’Donoghue submits that by telling Ms Annett to “fuck off” numerous times the victim did not offer serious

provocation of the sort needed, say, to reduce a starting point.[2]     Indeed.   Still, I accept Ms Gould’s assurance that in the District Court the police did recognise a degree of provocation and did not oppose a discharge.

[2] R v Taueki [2005] 3 NZLR 372, at [32].

[8]    At the hearing I gave Ms Gould the opportunity to file evidence about the impact of the conviction upon Ms Annett’s career.  She has produced a letter which indicates that the conviction would not preclude entry to a training course but would be considered adverse by a prospective employer.

[9]    Differing in degree from the Judge, I am prepared to regard the offence as a minor one of its kind when the provocation offered by the victim and circumstances of the offender are taken into account.[3]    The question is whether the consequences

can be said to be out of all proportion to the gravity of the offence.[4]

[3] Z v R [2012] NZCA 599 at [27].

[4] Sentencing Act 2004, s 107.

[10]  As to that, I have some sympathy for Ms Annett, as the Judge evidently did. She is a young and evidently decent enough person who is starting out in life, and she has reasonable prospects.  A conviction will cause her difficulty wherever she must disclose it, notably when travelling overseas and when seeking work.  The job market is highly competitive.   But of course she already has convictions, some moderately serious, that she must disclose.   The alcohol-related convictions might trouble some employers more, although Ms Gould says that she can point to successful counselling in that area.  Ms Annett can identify no specific consequences that will flow inexorably from this particular conviction.  She may have to declare convictions when entering Australia, but there is no evidence that she will be denied entry.   The mere possibility that she may be denied entry is not enough.   The Australian authorities should not be denied relevant information about an intending

immigrant.  The same is true of any prospective employer.

[11]  The test is clear: the consequences of conviction must be out of all proportion to  the  gravity of  the  offence.    I am  not  persuaded  that  the Judge  erred  in  his assessment.[5]

[5] Applying ordinary appellate principles R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at

[11].

[12]  The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Respondent