B v Police HC Nelson CRI-2009-442-18

[2010] NZHC 1177

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2009-442-18

B

v

NEW ZEALAND POLICE

Hearing:         22 June 2010

Appearances: Appellant in person

C Stevenson for the respondent

Judgment:      5 July 2010         at 4 pm

JUDGMENT OF MALLON J

Introduction

[1]      Mr B   has recently been diagnosed with diabetes.   He sees this as explaining his past behaviour which has led to convictions.  He wishes to take steps to have his most recent conviction quashed as he sees this conviction as likely to impact on his future.   With this in mind, Mr B   has applied for leave to appeal against two High Court decisions that relate to his most recent conviction.

Background

[2]      Mr B   assaulted a boy.  He pleaded guilty to a charge of assaulting a child under the age of 14 years (s 194(a) of the Crimes Act 1961).

[3]      According to the summary of facts before the District Court Mr B   had just got engaged to the boy’s mother and had been drinking wine to celebrate

B V NEW ZEALAND POLICE HC NEL CRI-2009-442-18  5 July 2010

this.   The boy decided to have a shower before going to bed but Mr B   followed him, calling him a “pussy” and trying to engage him in a fight.  The boy opened the shower door telling Mr B   he did not want to fight whereupon Mr B   punched him on the nose.

[4]      The summary of facts goes on to say “B   fell towards the victim who then hit the defendant on top of the head with a wooden shower brush causing his head to bleed”.  It also said that when Mr B   was spoken to by the police he could not remember what had happened between him and the victim.

[5]      Prior to sentencing in the District Court it was discovered that the boy was 14 at the time of the assault. The prosecution and Mr B  ’s then counsel agreed that the charge should be amended to common assault (s 196 of the Crimes Act). Mr B   then entered a guilty plea to that charge.  Mr B   was sentenced to 200 hours’ community work and supervision for six months with special conditions.

[6]      By notice dated 26 August 2009 Mr B   lodged  an appeal on  the ground  that  at  the  time  of  the  charge  the  boy  was  not  a  child.    By  this  time Mr B   was representing himself.   The appeal came before the High Court (Dobson J) on 6 October 2009.   The Judge pointed out that the appeal was misconceived because Mr B   had pleaded guilty to and been sentenced on a charge of common assault.

[7]      By  this   time  Mr B     had   been   diagnosed   as   having  diabetes. Mr B   informed Dobson J of this diagnosis and that he saw this as explaining his otherwise inexplicable conduct in assaulting the boy and his previous offending. He advised Dobson J that he wished to vacate his guilty plea and to investigate evidence of the link between his diabetic condition and his offending.  He suggested that his diabetic condition had robbed him of his control.  The Judge was of the view that his diabetic condition might be relevant in mitigation but would not provide a basis for a tenable defence.   He adjourned the appeal to allow Mr B   the opportunity to gather relevant material about his condition for the purposes of a sentence appeal.

[8]      The sentence appeal came before the High Court (Clifford J) on 14 December

2009.  Mr B   placed before Clifford J various materials he had obtained from the internet which discussed possible links between diabetic conditions and violent behaviour.  He also submitted a letter from his doctor which read as follows:

This is to confirm that the above patient has recently been diagnosed with non-insulin  dependent  diabetes  mellitus.    It  is  possible  that  it  has  been present for some time and could have affected his behaviour and well-being.

He has now been started on a diet and oral hypoglycaemics which have already resulted in an improvement in his energy and mental clarity.

[9]      Taking this material into account the Judge concluded that the sentence that had been imposed on Mr B   was not manifestly excessive.   He therefore dismissed the appeal.

Grounds for leave application

[10]     Mr B   had two points he raised in support of this application for leave to appeal to the Court of Appeal.  The first point was that his fitness to plead to the charge was affected by his condition.   The second point was that he had been sentenced on the basis of an incorrect statement in the summary of facts.

Jurisdiction to grant leave

[11]     A party may appeal to the Court of Appeal on a question of law with leave. Leave may be granted by the High Court if it is of the opinion that “the question of law...is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal.  An application for leave is to be made within 21 days after the High Court decision in respect of which the appeal is to be made, or such further time as the Court may allow (s 144(2) of the Summary Proceedings Act 1957).

[12]     Mr B  ’s application for leave was filed on 4 March 2010 which is well outside the 21 day period whether that is taken from the decision of Dobson J or the decision of Clifford J.  Counsel for the respondent adopted a neutral position on

whether the Court should allow further time for the bringing of this application.  I have proceeded to examine the merits of the application despite it being well out of time.

Applicant’s first ground for leave

[13]     Mr B   did not phrase his first ground as a question of law.   But ignoring that issue for the moment, a problem with this ground is that none of the material  Mr B    submitted  shows  that Mr B  ’s  condition  impacted upon his fitness to plead.

[14]     Mr B   relied particularly on the letter from the doctor but that letter only says that the condition “could have affected his behaviour and well being”.  I consider that this is far too general a comment from which to take that Mr B   may have been unfit to plead.  There is nothing in the internet material submitted that supports this either.  Both the letter and the material from the internet support the point that Mr B  ’s condition may have caused him to act aggressively but, as Dobson J held, that may have been relevant in mitigation at sentencing but it does not establish that Mr B   had a defence to the charge.

[15]     Mr B   also referred to his statements to the police as illustrating that he was not a well man.   I have reviewed the officer’s notebook entries.   In that notebook Mr B   is advised of his rights and he says “yea. why am I here. I have influrries” (the meaning of this is unclear).   He is asked what happened and says “I got married I’m gona marry her”.  He is asked what happened to the boy and says that he cannot remember.  He then adds “that little f***er”.  He is asked why he can’t remember and says “Aye. I’m gona marry her”.  He is asked how he got a cut on his head and says “what I’m bleeding. I want to go to sleep.  That little f****er”. He is asked if he hit the boy and says “I dunno”.  He is asked if the boy hit him and says “I can’t remember”.

[16]     I agree with Mr B   that his answers to the officer suggest he was not the most cogent.  The reason for that is not clear.  It may be because he had been drinking  or  because  of  his  diabetic  condition  or  for  some  other  reason.    But,

whatever the reason, this is only evidence of his behaviour on the night.   It is not evidence of his fitness when he entered his guilty pleas some time later. I therefore conclude that Mr B   has not raised an issue here that ought to be submitted to the Court of Appeal.

Applicant’s second ground for leave

[17]     Mr B  ’s  second  ground  of  appeal  was  described  in  his  notice  of appeal  as  “false  evidence  regarding  the  assault”  and  “the  assault  described  in evidence did not occur”.  At the hearing Mr B   advised that his concern was that it was said that he had hit the boy with a shower brush when in fact the position was that the boy had hit him with the shower brush.  Mr B   submitted that the summary of facts contained an error about this.

[18]     The summary of facts said this:

The victim opened the shower door to say he didn’t want to fight and was punched in the nose by B   who had entered the bathroom.

B   fell towards the victim who then hit the defendant on top of the head with a wooden shower brush causing his head to bleed.

[19]     Thus the summary of facts refers to a punch (in the first para above) and a hit on the head with a shower brush (in the second para above).  As to the hit on the head with the shower brush, the summary of facts is a little confusing because it switches from “B  ” to “victim” to “who” to “the defendant” to “his”. However, as the “who” comes straight after “victim”, and as the victim is the boy and Mr B   is the defendant, it is saying that Mr B   fell towards the boy and it was the boy who hit Mr B   on the head with the shower brush.

[20]     This is consistent with the officer’s notebook entries.   In the notebook the officer has recorded the boy as saying that he had the “shower brush in my hand at the time and then I dropped that and punched him.  He just fell over on the ground and I told Mum to call the police”.  I note that Mr B   suggested a different reading for this entry but this is not material for present purposes.  What is material

is that it was the boy that had the shower brush and there is no suggestion from the boy that Mr B   hit the boy with the shower brush.

[21]     The notebook also records that Mr B  ’s head was bleeding.  This is consistent with the summary of facts stating that the boy hit Mr B   on the head with the shower brush causing Mr B  ’s head to bleed.

[22]     Therefore  the  evidence  before  the  District  Court  was  not  false.    At  the hearing before me it was submitted by counsel for the respondent that because there was no error in the summary of facts this ground of appeal was not made out. However, in considering this matter after the hearing I have realised that an error was made by the Judge about this when he sentenced Mr B   and this error carried through on his sentence appeal to the High Court.  I assume this is the error which Mr B   meant to refer to.

[23]     In sentencing Mr B   the District Court Judge said this:

You ended up punching the 14- year old in the nose.  You have then fallen towards him and hit him on the top of the head with a shower brush causing his head to bleed.

[24]     It therefore seems that the District Court Judge misread the summary of facts, because according to that it was the victim that hit Mr B   with the shower brush and not the other way around.   This error carried through to the sentence appeal before Clifford J because in his decision he said “[h]e punched the complainant in the nose, and then hit him on the head with a wooden shower brush, causing his head to bleed”.

[25]     This error does not amount to a question of law which the Court of Appeal ought to consider.   However, although Mr B   had the opportunity to raise this error when the appeal came before Clifford J and did not do so, I am concerned that he has been sentenced on an incorrect factual basis.  To punch a 14 year old boy once in the nose is certainly not good, but the conduct is worse if there was a second blow to the head with a wooden brush and which caused the boy’s head to bleed. The latter did not occur (rather the boy hit Mr B   causing Mr B  ’s head to bleed), yet Mr B   has been sentenced on the basis that it did.

[26]     This raises the question of what should be done about this error.  In fairness to Mr B   it may be that his sentence should be quashed and he should be resentenced on the correct factual basis.  I am limited in what I can do because this error has been uncovered on an application for leave to appeal to the Court of Appeal which can only be granted in the circumstances set out above (refer [11] above).  It seems to me, however, that a possible procedural route for Mr B   to have his sentence reconsidered is via an application for a rehearing made to the District Court under s 75 of the Summary Proceedings Act.  If a rehearing on sentencing were to be granted Mr B   would then be able to be sentenced on the basis of one punch only to the nose of the boy.  Mr B   would also be able to refer to material about his diabetic condition.  This could make quite a difference to his sentence.

[27]     Because I have not heard submissions on what is the appropriate procedural course I will not formally dismiss Mr B  ’s application for leave to appeal to the Court of Appeal at this point.  I envisage doing so if the parties agree that at this stage of proceedings the error is best dealt with via an application to the District Court for a rehearing.  I request submissions from Mr B   and counsel as to the appropriate course in these circumstances.   Such submissions are to be filed within 14 days of today’s judgment.

Result

[28]    The application for leave to appeal is adjourned for 14 days for further submissions to be made on the appropriate procedural avenue for dealing with the factual error made when sentencing Mr B  .

“Mallon J”

Solicitors:

C Stevenson, Pitt & Moore, Nelson, email: [email protected]