B v New Zealand Police HC Auckland CRI 2005-404-358

[2006] NZHC 90

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-358

B

v

NEW ZEALAND POLICE

Hearing:         17 February 2006

Appearances: M R B   in person

H Retzlaff for Crown

Judgment:      17 February 2006

ORAL JUDGMENT OF WINKELMANN J

Copies to:

B  , 198 Richmond Road, Grey Lynn

Crown Solicitor, Fax [phone]

B   V NZ POLICE HC AK CRI 2005-404-358  17 February 2006

[1]      Mr  B    appeals  against  conviction  and  sentence  in  respect  of  a conviction for offensive behaviour.  In July of last year, he was on Princes Wharf, Auckland City, at 12:50 am and was, according to the summary of facts, moderately intoxicated.  Whilst standing on the footpath facing the road, he urinated on to the footpath. Princes Wharf was extremely busy at the time with heavy foot traffic. Mr B   made no attempt to conceal his actions and his genitals were in full view of passing members of the public who, it is recorded, were offended. When Mr B   was spoken to by the police he was contrite and co-operative.   He has since written a letter of apology.

[2]      When the matter was called before the District Court, it was adjourned to a status hearing because Mr B  ’s stated intention was to plead guilty but seek discharge without conviction.  At the status hearing before the District Court Judge, the police prosecutor took a neutral position in relation to whether or not a discharge without conviction was appropriate.  The discharge without conviction was declined by the District Court Judge and a conviction entered.

[3]      No reasons were given for that exercise of discretion by the District Court Judge.  However, the Judge has helpfully since made a note as to what his reasons were.  He says:

I recall the matter and, from my recollection, the prosecutor was neutral in regard to the s 106 application made by appellant’s counsel.  Again from my recollection I took notice of the appellant’s previous conviction (a minor one) and concluded that he should be convicted and discharged without further penalty.  I felt in all the circumstances a discharge without conviction was not warranted.

[4]      Mr B   was, at the time of the offending, 28 years old.   He has a Bachelor of Commerce degree and is currently employed by a property development company.    He  has  by all  accounts,  good  prospects  of  advancement  in  a  major company and an inevitable requirement to travel with his work.

[5]      The  appeal  is  brought  on  the  basis  that  the  consequences  of  entering  a conviction, in the circumstances, are out of all proportion to the  gravity of the offence.  It is said that Mr B   will need to travel extensively because of the nature of his career. While it is not suggested that the fact of conviction will prevent

him entering a country, it will mean that he must declare the conviction on any immigration forms and answer questions in relation to that declaration on arrival in a country. This will entail ongoing disclosure in front of his travelling companions, some of whom will be his fellow employees and some, commercial parties with whom he hopes to do business for his employer.  It is submitted that not only will this be embarrassing but it may very well detrimentally impact upon his career.  So too the likely requirement that he disclose his conviction each time he makes an employment application.

[6]      Although he may be able to provide an explanation as to the nature of the conviction, the inevitable stigma attaching to any conviction, even if explained away as minor,  will nevertheless continue to detrimentally affect his career in the years to come.

[7]      Section 106 of the Sentencing Act 2002 provides that if a person who is charged  with  an  offence  is  found  guilty,  the  Court  may discharge  the  offender without conviction. Section 107 states the test for the exercise of the Court’s discretion, as follows:

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.

[8]      In this case, this appeal would normally be dealt with by this Court as an appeal against the exercise of a Judge’s discretion, and as such could only succeed if the  appellant  could  bring  himself  within  the  very  narrow  grounds  upon  which appeals against the exercise of a Judge’s discretion can succeed.  However, where as here, there are no reasons given for the Judge’s exercise of discretion, I am satisfied that it is appropriate that this Court approach the issue de novo.

[9]      In considering whether or not a discharge without conviction is appropriate, the  nature  of  the  offence  is  relevant.    Although  urinating  in  a  public  place  is offensive and irresponsible behaviour, when set within the full spectrum of criminal behaviour, it is minor offending only.

[10]     I  also  take  into  account  Mr  B  ’s  conduct  on  arrest.     He  was immediately contrite and co-operative, as the police have confirmed .   Further, he has written a letter of apology in which he makes clear that he is rightly embarrassed by his actions and sorry for the waste of police time and resources.

[11]     I also take into account the fact that Mr B   has previously been dealt with through diversion.   This was obviously seen as significant by the Judge. However, I attach little weight to this matter.  The offending in question occurred when Mr B   was 18, Although no details of it are before me, the offending is accepted to be minor.

[12]     Mr B   is undoubedly a young man with a good career before him. However, in considering this application I note the caution articulated by Fisher J in Sloane v Police (HC Hamilton AP 89/90),  as follows:

Persons  with  an  advantaged  educational  background  will  be  far  better placed to bring applications of this kind because they can nearly always point to some form of career barrier that will result from conviction.   The Court must not give the impression that in some way that class of offenders will be dealt with more leniently than others.

[13]     Notwithstanding that, it must also be true that there should be no additional burden  placed  upon  persons  who  have  good  prospects  or  who  have  had  an advantaged educational background.

[14]     In this case, the minor nature of the offending has weighed particularly with me.  As to the seriousness of the offending, Mr Retzlaff for the  Crown referred me to a Court of Appeal decision R v Hana  (Court of Appeal CA 193/04, 27 September

2004, Anderson P, McGrath J, Glazebrook J) in which the appeal was against a conviction for offensive behaviour.  The appellant had stood naked in the middle of a traffic island in Courtenay Place, and on appeal argued that this was not offensive behaviour.  The Court of Appeal held that a display of nakedness by an adult in the middle of a major city thoroughfare, even in the early hours of the morning, was manifestly legally capable of being offensive.  However, that does not, I think, assist the respondent. The appellant accepts his behaviour was offensive.   Hana is not, however, authority for the proposition that offensive behaviour is serious offending.

[15]     In all the circumstances, I am therefore satisfied, albeit by a narrow margin, that the criteria in s 107 are satisfied.  The direct and indirect consequences for Mr B   will be out of all proportion to the gravity of the offence.   However, I record that Mr B   is unlikely to receive such a lenient approach from the Courts in the future should he re-offend, and it is to be hoped that his expressions of contrition and remorse are genuine.

[16]     Accordingly, the appeal against conviction and sentence is allowed.   Mr

B   is discharged without conviction.

Winkelmann J