B v Police HC Wellington CRI 2006-485-121

[2007] NZHC 1694

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-485-121

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 March 2007

Appearances: I M Antunovic for Appellant

C Boshier for Respondent

Judgment:      27 March 2007

ORAL JUDGMENT OF MILLER J

[1]      This is an appeal against sentence.  Mr B   was charged with assault under s.196 of the Crimes Act.  Judge Clarkson refused a request for a discharge without conviction, convicted Mr B  , and imposed a fine of $800 with Court costs of

$130.

[2]      The summary of facts records that at about 1.00 am on 17 June 2006, Mr B   was in a communal lounge area in a residential block at the Royal New Zealand Police College.  He was drinking from a 745 ml glass bottle of beer.  The victim approached him and attempted to begin a conversation.   About 30 seconds

later Mr B   became enraged, the summary of facts says without provocation or

B V NEW ZEALAND POLICE HC WN CRI 2006-485-121  27 March 2007

warning, and hit the victim with the bottle.  He swung it from waist height, hitting the victim on the left side of his head.  He then struck the victim twice more in the same manner, inviting the victim to engage in a fight, before throwing the bottle at the victim, who ducked.  The victim sustained minor injuries, in the form of bruising and swelling to the left side of his head and tenderness to the jaw.  At the time Mr B   was training as a police officer and had no previous convictions.  Although he was eligible for diversion, the police declined to entertain it as a matter of policy.

[3]      It should be noted at the outset that the summary of facts appears to be inaccurate in so far as it says that this happened without provocation or warning. The victim himself says that he initiated the contact by what is an assault, giving Mr B   a few jabs in the chest or shoulder area in what the victim described as a playful manner.

[4]      Judge  Clarkson  considered  that  the  assault  was  a  serious  one.     She acknowledged that it was out of character and referred to a letter of apology that had been supplied.  She acknowledged that Mr B   did realise how serious the matter is.  Loss of the opportunity to train as a police officer was a significant punishment in itself, which led the Judge to rule out a sentence of community work.

[5]      However,  this  sort  of  assault  would  normally attract  such  a  sentence  of community work, so the Judge declined to discharge Mr B   without conviction. A conviction and fine was the minimum punishment in circumstances where Mr B   had used a weapon that could have been “extraordinarily dangerous”, and used it three times before throwing a bottle.  His behaviour was out of control and completely unacceptable.

[6]      Mr  Antunovic  emphasised  that  the  incident  occurred  during  a  general celebration involving cadets who had all passed an examination earlier in the day. They were about half way through the 19 week training period.  As mentioned, the victim in his statement acknowledges that he initiated the incident.  To this Mr B   reacted aggressively; he says that this sort of behaviour was something that the victim had previously engaged in and he found it irritating.  He had been drinking, which explained the over-reaction to what he interpreted as an assault.  The bottle

was used only because it was in his hand at the time.   Counsel emphasised Mr B  ’s remorse, his co-operation and guilty plea, the consequences for his career, and his excellent previous record.   He was and is willing to make an appropriate donation in lieu of a fine.

[7]      In her written submissions, Ms Boshier emphasised that the sentencing Judge stated that she had listened very carefully to the submissions and took into account previous blameless record and the impact of the conviction upon him.  She submitted that denunciation and deterrence should assume particular importance in cases where the offender was training as a police officer.  It cannot be said that the consequences of conviction were out of all proportion to the seriousness of the offence.   She submitted  that  there  is  no  evidence  that  the  conviction  will  pose  any  specific difficulty for Mr B   in his future employment or overseas travel.

[8]      The jurisdiction to discharge without conviction has been used many times in cases of assault.  But the jurisdiction is discretionary in nature, and this Court will not simply substitute its own decision on appeal:  Halligan v Police [1955] NZLR

1185.  As with any appeal, this Court will only interfere if satisfied that the sentence was clearly excessive, or substantial facts relating to it or the offender’s character or personal history were not before the District Court or were not substantially as placed before or found by that Court.

[9]      The Judge did not misdirect herself or overlook any relevant consideration.   I accept that the complainant first assaulted Mr B  , albeit playfully, and I acknowledge, as the Judge did, the many mitigating factors.  But discharge without conviction would have been a merciful use of her discretion.  It is not possible to say that she was plainly wrong by refusing one.  At the end of the day, the distinguishing feature of this case is that the assault was a serious one, involving as it did repeated blows with a weapon that might well have caused very serious injury.  For the same reasons it cannot be said that the fine of $800 was manifestly excessive.  The Judge might well have imposed a term of community work.

[10]     The appeal is dismissed.

Solicitors:

I M Antunovic, Wellington for Appellant

Crown Solicitors Office, Wellington for Respondent

F Miller J