Blay v Police

[2014] NZHC 2923

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 Respondent
Judgment:	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…