B v Police HC Palmerston North CRI-2008-454-56

[2009] NZHC 35

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-454-56

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2009

Counsel:         Y R Summers for Appellant

B D Vanderkolk for Respondent

Judgment:      3 February 2009

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against conviction and sentence.  The appellant who is 17 years of age was convicted in the District Court on 2 October 2008 and fined $350 and Court costs on a charge of being found without reasonable excuse in a building.

[2]      The circumstances were that on 29  September  2008  a  number  of  young people had entered office premises in Chamberlain Street in Levin.   The premises were vacant and the building had been left insecure and it was something of a gathering place for young people.  The appellant entered the premises and removed a chair, which had been left in the premises, which had rollers, and he was intending to

ride on that in a skate park nearby.

B V NZ POLICE HC PMN CRI-2008-454-56  3 February 2009

[3]      The appellant has no previous criminal history.  When he appeared he did not consider that it was necessary for him to consult a lawyer or see the duty solicitor and the Judge proceeded to deal with the matter on the spot as was entirely appropriate in the circumstances of the case.

[4]      The appellant would have been a potential candidate for diversion and the officer in charge considered him to be a suitable candidate for diversion in the circumstances of the offending but regrettably the prospect of diversion was not raised at the hearing in the District Court.  Ms Summers, for the appellant, submits that in the circumstances either an opportunity to have diversion further considered should be given or in the alternative that the appellant should be discharged without conviction.

[5]      Mr Vanderkolk for the respondent accepts that the possibility of diversion was not fully explored.  While diversion is a matter of discretion, rather than a matter of right,  I consider that there is a potential risk of injustice in this  case if  the opportunity to have diversion considered is not made fully available.  I consider in the circumstances that that is the better course, rather than to deal with the matter now.  The appellant has suffered some additional stress and no doubt expense and inconvenience in having to bring the appeal, but, had the question been raised at first instance in the District Court, I am confident that the Judge would have regarded the matter as one for diversion rather than for discharge without conviction at that stage. I think that notwithstanding the course that the matter has taken since, that is the appropriate way in which to resolve this matter.

[6]      For these reasons the appeal will be allowed.  The conviction and the fine are quashed and the matter is remitted to the District Court for reconsideration.

“A D MacKenzie J”

Solicitors:         Y R Summers, Levin for Appellant

B D Vanderkolk, Palmerston North for Respondent