Blair v Police

[2017] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2017-485-48 [2017] NZHC 3028

BETWEEN

SEAN IAN BLAIR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 November 2017
Counsel:	Appellant in Person (with Ms V Morse as McKenzie friend) J M OʼSullivan for Respondent
Judgment:	7 December 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Blair seeks on appeal a discharge without conviction on charges of trespass and assault.  This outcome was not sought at the time of the original sentencing.1

Normally a court will not consider the matter for a first time on appeal unless there was good reason for it not being raised at the proper time.2  Here Mr Blair says he was not advised by trial counsel of the possibility.  Mr Blair filed a waiver of privilege but no steps have been taken by the respondent in relation to it. I proceed therefore on the basis that Mr Blair’s assertion is accepted for the purposes of the appeal.  Discharge without conviction was a matter that could have been considered at the time of sentencing so it will be addressed on the appeal.

[2]      Mr Blair was part of a group that staged a protest at a gun manufacturing site in Lower Hutt on 19 September 2016.  Mr Blair describes himself as a peace activist.

The group dressed up as “grim reapers” and entered the foyer, where they threw large

1      New Zealand Police v Blair [2017] NZDC 26231 [Blair sentencing].

2      Ho v R [2016] NZCA 229 at [11].

amounts of glitter and confetti, and let off party poppers.  They were asked to leave but did not do so in a reasonable time. Workers were alarmed by the incident, a feeling no doubt exacerbated by the intruders’ clothing.

[3]      The site has a second building.  This was known to the protestors due to their having researched the site in advance.   Mr Blair and another entered that second building. This building is not open to the public but due to fumes the sole worker had left the door open.  The worker asked the two intruders to leave and then started to push them out the door. The worker pulled Mr Blair’s mask off. Mr Blair spat at him. This forms the basis of the assault charge.  At trial Mr Blair accepted the spitting but

said it was in response to being punched several times in the head. His was a claim of self-defence.  The District Court Judge rejected that defence and the allegations of punching by the victim.3

[4]      Mr Blair was sentenced to a $500 fine and ordered to pay $500 reparation. The sentencing remarks were not available for the appeal hearing, but emerged shortly after. Given their tone, an opportunity for further submissions was proffered. Mr Blair did not file any. The District Court Judge when sentencing Mr Blair observed:4

[2]       I find your actions towards [the victim] to be arrogant and dismissive. You have a sense of entitlement about your behaviour on that day and you showed no respect throughout the whole of the proceedings today towards the people who have been affected by your actions. You believe that you have an entitlement to do that because of your beliefs but it was plain to me that [the victim]  was very badly affected by that, that he was frightened on that occasion, not surprisingly in the circumstances, and that he felt insulted by being spat at.

[3]       You now will have two convictions against your record and that in itself is a penalty and a serious penalty, because you carry those two convictions, not for something that you did that you should be proud of, but for something that you did that you should be remorseful and regretful for, to spit [at] a person like that.   I would have expected that you would have accepted responsibility for your actions and that you would have taken some steps to reflect on how it affected a person but you have not.

[4]       I take into account that you are young, only 20 years old, that you have no previous convictions, and in those circumstances, I have decided to impose on both a monetary penalty.

3      New Zealand Police v Blair [2017] NZDC 20145 [Blair conviction].

4      Blair sentencing, above n 1.

[5]      As noted Mr Blair is 20 years old, and was aged 19 at the time of the offending. He has no previous convictions.

[6]      Mr Blair advances the following matters in support of his application for a discharge without conviction:

(a)      the gravity of the offending – trespass and assault – is minor.   The assault involved no injury, and the emotional harm to the victim is fairly classed as minor;5

(b)Mr Blair was 19 years old at the time and youth is relevant to the assessment of gravity.  Mr Blair is a first offender;

(c)      the convictions will impact on his job prospects.  Mr Blair filed job descriptions for vacancies for a rest home caregiver, a kitchen hand at a hotel and a motel room attendant all of which made the absence of criminal convictions a criteria;

(d)Mr Blair’s job prospects are already hindered by personal mental health issues  that  required  him  to  give  up  full  time employment  with  a government department. It is submitted the impact on job prospects for someone presently limited to part time work is greater; and

(e)      Mr Blair hopes to travel overseas.  Information was filed that suggests the convictions will deny him access to visa waiver schemes and require him to seek visas in advance.  (I note some jurisdictions attach this consequence to being charged with offending, thereby overriding a discharge without conviction or clean slate legislation.)

[7]      The application is opposed on the basis that Mr Blair does not satisfy the s 107 test under the Sentencing Act 2002 of “out of all proportion”.  It is also submitted the

Court should have regard to Mr Blair’s lack of remorse and the statutory purposes of deterrence and accountability.

Applicable principles

[8]      The correct approach to these applications is set out in Z (CA447/2012) v R.6

Section 107 of the Sentencing Act must be satisfied before s 106 is engaged; there is no jurisdiction to discharge without conviction under s 106 until the s 107 test is satisfied.  In terms of s 107, the assessment of the gravity of the offending includes consideration of the relevant Sentencing Act purposes and principles, together with the assessment aggravating and mitigating factors.  In this sense the gravity of the offending analysis establishes the final base position against which other inquiries are made:

(a)       whether the consequences (direct and indirect) of a conviction would be out of all proportion to the established gravity of the offending; and

(b)      if so, how should the discretion under s 106 nevertheless be exercised?

Analysis

[9]      In terms of the offending itself, the underlying conduct is at the lower end of the scale. The assault is insulting conduct but did not involve physical harm or injury. The context of a peaceful protest is neutral, although it can be observed Mr Blair was taking matters further than the group as a whole. By entering the second building and confronting the lone occupant there is an element, within the context of a peaceful protest, of going too far, which should be discouraged.  Otherwise, denunciation and general deterrence do not particularly feature.

[10]     As for personal factors, the sentencing notes sum it up. Mr Blair is young and seemingly displayed the arrogance of youth in his attitude. He orally professed regret for his actions during the appeal hearing, but this was because he feels uncomfortable, as a peace activist, about having an assault conviction.  There was nothing to suggest

discharge without conviction would not meet sentencing purposes of personal deterrence, nor rehabilitation since it would likely fuel his sense of entitlement.  On the other hand, these are indicia of immaturity and sometimes it can be appropriate to look behind these current attitudinal issues.

[11]     Overall, I assess the gravity of the offending as minor, but note that there are aspects of Mr Blair’s attitude that suggest a discharge without conviction would not meet sentencing purposes.  Other than youth, it can be noted there is no insight or remorse, nor any real commitment to avoid the same happening. This flows from the lack of insight into the effects of his conduct.

[12]     There are no direct and indirect consequences particular to Mr Blair.  I do not consider his mental health issues particularly exacerbate the implications for employment that a conviction can have. I accept that otherwise a conviction for assault will impact on job prospects to the same extent such convictions always will. I do not minimise that impact particularly when it is a young person seeking to get underway in the job market.

[13]     I place little weight on the travel issue. A conviction of this sort requires more steps to be taken to obtain visas, but that is not a significant consequence and it is static in the sense that this is a reality that applies to the fact of any conviction. In my view, of itself it does not merit particular regard and there is nothing about Mr Blair’s situation that takes it out of the usual consequences.

[14]     Ultimately  this  application  comes  down  to  the  proposition  that  a  first conviction for minor offending for a young person will have consequences out of all proportion to the gravity, and therefore a discharge without conviction is merited. That proposition may have strength where the gravity is indeed very low but for the reasons given I assess the gravity as greater than that, essentially due to the absence of personal mitigating factors other than youth and a clean record to date. The lack of insight, and remorse, in circumstances where the offence is assault (albeit minor) and where there has been an impact on the victim who was merely trying to do his job and earn a living, are such that I do not consider the s 107 test of out of all proportion is met.

Simon France J