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…

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.

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Details

Case: [2017] NZHC 3028
Decision Date: 7 December 2017

CaseChat Overview and Summary

In the case of Blair v Police, Sean Ian Blair sought a discharge without conviction on charges of trespass and assault. The case was heard in the High Court of New Zealand, Wellington Registry. The central issue was whether the court should grant a discharge without conviction for Blair, considering the nature of his offenses and personal circumstances. The court needed to determine if the consequences of a conviction would be disproportionate to the gravity of the offenses, given the mitigating factors presented by Blair.

Blair was part of a group that protested at a gun manufacturing site, engaging in disruptive activities that resulted in trespass and assault charges. The High Court analyzed the minor nature of the offenses but noted Blair's lack of remorse and insight into the impact of his actions on the victim. While Blair presented arguments about the potential adverse effects of the convictions on his employment and travel prospects, the court found that these factors did not sufficiently establish the necessary threshold for a discharge without conviction. The court emphasized the importance of considering the statutory purposes of deterrence and accountability in its decision-making process.

The High Court concluded that the gravity of the offenses, coupled with Blair's attitude and lack of remorse, did not meet the test of being "out of all proportion" to the established gravity of the offenses as required by section 107 of the Sentencing Act. Consequently, the court denied Blair's application for a discharge without conviction.

Orders