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

[2009] NZHC 1376

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2009-442-18

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 October 2009

Counsel:         Appellant in person

C P Stevenson for respondent

Judgment:      6 October 2009

RESERVED JUDGMENT OF DOBSON J

[1]      Mr B   appeared on his own behalf to advance different matters from those  signalled  in  his  Notice  of  Appeal.    Mr Sandston,  who  had  appeared  for Mr B    on  his  sentencing  in  the  District  Court,  remained  in  Court  as  a courtesy in case any matters in respect of the course of that hearing required clarification.

[2]      The appeal against conviction was pursued on the basis that the victim was not a child at the time of the charge being laid against Mr B  .   He had originally been charged with assaulting a child under the age of 14, pursuant to

s 194(a) of the Crimes Act 1961.  Prior to the matter being dealt with in the District

B V NEW ZEALAND POLICE HC NEL CRI-2009-442-18 6 October 2009

Court, Mr Sandston, as counsel for Mr B  , wrote to the Court, pointing out that the complainant in respect of the assault was not aged under 14 at the time.  The file shows that the terms of the Information were amended to common assault under s 196 of the Crimes Act 1961, and the notes of Judge Zohrab on his sentencing record that Mr B   then pleaded guilty to a charge of Crimes Act assault.

[3]      Accordingly, the ground for appeal against conviction cited in the Notice of

Appeal is misconceived.

[4]      However,  Mr B    advised  this  morning  that  he  has  recently  been diagnosed with a diabetic condition, and he attributes that as the reason for what was otherwise his inexplicable conduct in assaulting the complainant in the present circumstances.  He acknowledges he has previous convictions for violence and that the recent revelation of his diabetic condition is the explanation for what has otherwise been treated as incidents of violence that are out of character.

[5]      He indicated that he wanted to change his plea, and that he wanted more time to gather evidence confirming the link between his recently discovered diabetic condition, and the assault of which he has been convicted.  Mr B   suggested that the diabetic condition had robbed him of his moral control in a way that he wishes to argue would constitute a defence.

[6]      Mr Stevenson  opposed  leave  being  given  to  vacate  the  guilty  plea.    He submitted  that  the  summary  of  facts,  which  was  not  challenged,  showed  that Mr B   was intoxicated at the time of the offending, and that subsequent discovery of a diabetic condition could not be treated as giving rise to the prospect of any tenable defence.

[7]      I was not satisfied that Mr B  ’s circumstances justified granting leave to vacate the guilty plea.   A diabetic condition may be material to matters in mitigation, but does not represent the basis for a tenable defence.   It would risk giving false hope to allow the conviction to be re-opened in such circumstances.

[8]      However, it may well be that an undiagnosed diabetic condition raises valid matters in mitigation of the assault that Mr B   had pleaded guilty to.   I accordingly agreed to adjourn his appeal against sentence to allow him to gather any medical evidence attributing relevance to the condition, as a matter affecting the assault of which he has been convicted.

[9]      I have provisionally adjourned the appeal against sentence to 9.30am on

4 December 2009, warning Mr B   that he should stay in touch with the Court to check whether it becomes necessary to alter that date.

Dobson J

Solicitors:

D J B  , 26 Baldwin Road, Tasman, Nelson

Pitt & Moore, Nelson for respondent