BB v Police - [2022] NZHC 3460

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000308

[2022] NZHC 3460

BETWEEN
BB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 December 2022

Appearances:

J L Holden and J T Tai for Appellant P R McNabb for Respondent

Judgment:

16 December 2022

Reissued:

23 February 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew
on 16 December 2022 at 11.00 am and re-issued on 23 February 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016

Registrar / Deputy Registrar Date………………………….

BB v NEW ZEALAND POLICE [2022] NZHC 3460 [16 December 2022]

Introduction

[1] Ms BB pleaded guilty to charges of possession of an offensive weapon in a public place,1 wilful damage2 and being found in an enclosed yard without reasonable excuse.3 In the District Court, Judge A M Manuel declined her application for discharge without conviction and imposed a sentence of one year supervision in respect of all three charges.4

[2] BB now appeals against the Judge’s refusal to discharge her without conviction. She contends that Judge Manuel overstated the gravity of the offending and failed to properly assess her mental health at the time of the offending.

[3] In opposing the appeal, the Police say there was no error in the Judge’s approach.

The offending

[4] The victim of BB’s offending was another woman who was not previously known to her. On the afternoon of 21 March 2021, BB was parked outside the victim’s address. It was clear that she was in an agitated state, pacing up and down the driveway and smoking. BB pressed the intercom of the address and the victim opened the gate to find BB in an angry state, demanding to know the victim’s name. BB was asked to leave the address but instead she followed the victim through the gate and began verbally abusing her, as well as flicking a cigarette butt at her.

[5] The victim ran inside her house. BB then returned to her car to retrieve a 28- centimetre hammer from her vehicle. She used this to hit the intercom about 10 times, causing it to fall off and shatter. BB then left the victim’s address.

[6] In her victim impact statement, the victim says that she was scared and thought that BB was going to assault her.

1      Crimes Act 1961, s 202A(4)(a). Maximum penalty three years’ imprisonment.
2      Summary Offences Act 1981, s 11(1)(a). Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
3      Summary Offences Act 1981, s 29(1)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
4      Police v [BB] [2022] NZDC 15779.

[7] The victim’s address, where the offending took place,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BB v Police

Details

AGLC: BB v Police [2022] NZHC 3460
Case: [2022] NZHC 3460
Decision Date: 16 December 2022

CaseChat Overview and Summary

BB appealed against the District Court's decision to not grant her a discharge without conviction after she pleaded guilty to possession of an offensive weapon in a public place, wilful damage, and being found in an enclosed yard without reasonable excuse. BB argued that the District Court overstated the gravity of her offending and failed to properly assess her mental health at the time of the offending. The Police opposed the appeal, stating there was no error in the District Court's approach.

The High Court found that the District Court's assessment of the gravity of BB's offending was correct, and there was no error in characterising the aggravating features of the offending. The Court also found that the District Court properly considered BB's mental health and the correlation between her mental illness and the offending as mitigating factors. However, the Court concluded that the overall gravity of BB's offending was appropriately assessed as moderate, not low, and therefore the consequences of conviction were also moderate.

The Court held that the consequences of conviction on BB's ability to have her medical license restored and her alternative employment prospects were moderate in nature. The Court found that the consequences of conviction on BB were not disproportionate to the gravity of her offending and that the District Court was correct to decline to grant BB a discharge without conviction. The Court also agreed with the District Court's conclusion that the Court retains a residual discretion to decline to grant a discharge without conviction on public interest grounds.

The appeal was dismissed, and the decision of the District Court was upheld.

Orders