IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000213 [2014] NZHC 2923
BETWEEN DYLAN FRANCESC KITE BLAY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 October 2014 Counsel:
S D Oliver for the Appellant
T Hu for the RespondentJudgment:
24 November 2014
JUDGMENT OF DUFFY J
[re Appeal Against Refusal to Discharge Without Conviction]
This judgment was delivered by Justice Duffy on 24 November 2014 at 4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Ministry of Justice (Public Defence Service), Auckland
Meredith Connell, Auckland
BLAY v POLICE [2014] NZHC 2923 [24 November 2014]
[1] The appellant appeals against the refusal by the District Court to grant a discharge without conviction for the offence of assault with intent to injure. The maximum penalty is three years’ imprisonment under s 193 of the Crimes Act 1961. The appeal is opposed.
Background facts
[2] On 9 March 2013, the appellant and the victim attended the same party. At the time, the appellant was a year 13 high school student. During the course of the night, the appellant and the victim were involved in a verbal confrontation and exchanged verbal insults. At 11.30 pm when the party ended, the victim walked out of the front gate of the address and waited with friends for a taxi. The appellant, who was intoxicated, approached the victim and, without warning, punched the victim in the face with a closed fist. The force knocked the victim onto his back.
[3] The victim’s friends intervened, and the appellant walked away. The victim suffered a damaged retina, a swollen wrist, and abrasions and lacerations to his face.
[4] Since the offending, and before a complaint was made to the police, the victim’s family and the appellant’s family have met. The victim’s father sought reparation of $3,000. The appellant could not pay this, as he was still at school. Later there was a second meeting arranged by the victim’s father. At this meeting, the appellant signed a contract stating he would pay the victim $3,000. The appellant was working by then and so was in a position to pay reparation. He set up an automatic weekly payment of $60 to the bank account stipulated in the contract. At the time he was sentenced, he had paid $900 in reparation.
District Court decision
[5] On 17 June 2014, Judge J P Gittos sentenced the appellant after a plea of guilty. The Judge canvassed the background facts above and noted that there was the possibility of permanent eye injury resulting from the assault. The appellant sought a discharge without conviction. The Judge noted that he was only 17 years old at the time of the offending. The appellant submitted that a conviction may be an obstacle
for him to visit his father in Spain and may be detrimental to his employment prospects.
[6] The Judge noted that the appellant had paid some $900 to the victim as compensation, and had voluntarily taken some…
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CaseChat Overview and Summary
The court assessed the gravity of the offending by considering all the aggravating and mitigating factors relating to the offending and the offender. The court identified the direct and indirect consequences for the appellant and considered whether those consequences were out of all proportion to the gravity of the offence. The court found that the appellant's age, remorse, and voluntary engagement in rehabilitative programs were significant mitigating factors. However, the court determined that the consequences of a conviction, while detrimental, were not out of proportion to the gravity of the offence. The court also noted the potential for a floodgate of similar applications if discharges without conviction were granted in cases where the only consequences put forward were general. The appeal was dismissed, and the appellant was not discharged without conviction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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