Mr Blythe seeks leave to appeal out of time against the refusal, by Judge Inglis in the District Court at Wanganui on 15 December last, to discharge him without conviction.[1] He had pleaded guilty to a charge of assault under s 196 of the Crimes Act 1961. Mr Blythe contends the Judge erred in several respects, and should have discharged him.

Extension of time to appeal

[1] R v Blythe District Court, Wanganui, CRI 2009-083-2287, 15 December 2010.

The short delay in appealing was due to counsel’s oversight during the Christmas vacation. There is no resulting prejudice to the Crown, which does not oppose an extension of time. We extend time to 1 February last, the day on which the appeal was filed.

What had happened

Mr Blythe is a police officer. At the time of the assault he was a dog handler. In the early hours of 12 April 2009 he was called to a supermarket in Wanganui. A break in was suspected because the alarm had been activated.
Mr Blythe saw a man running away from the supermarket. The man did not heed his call to stop. Mr Blythe released his young police dog, but it misunderstood his commands and came back to him. Mr Blythe chased the man, who was intercepted by two other police officers. They were in the course of arresting the man when Mr Blythe came up and punched him in the side of his face knocking him to the ground. He was not badly injured: a chipped tooth and some bruising. He lost a day’s work.
It transpired that the man was innocent: he was running home from a function, drunk.

The Judge’s sentence

Upon sentence, after dismissing Mr Blythe’s application for a discharge without conviction, Judge Inglis ordered him to pay $1,500 emotional harm reparation to the man he had punched. Mr Blythe had offered to pay that amount. She did not impose any other sentence, but ordered him also to pay Court costs.

The test for a discharge without conviction

Judge Inglis summarised her jurisdiction under s 106 of the Sentencing Act 2002 as follows:[2]
Section 106 provides the jurisdiction to discharge an offender without conviction. Section 107 provides guidance on the exercise of the Court’s discretion. It provides that:
The Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of…

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 Blythe v R

Details

AGLC: Blythe v R [2011] NZCA 190
Case: [2011] NZCA 190
Decision Date: 17 May 2011

CaseChat Overview and Summary

In the case of Blythe v R, Matthew Leslie Blythe, a police officer, appealed against the District Court's decision to refuse his application for discharge without conviction after pleading guilty to assault under section 196 of the Crimes Act 1961. The primary issue before the Court was whether the District Court correctly applied the three-step approach outlined in R v Hughes to determine whether the consequences of a conviction would be disproportionate to the gravity of the offence. The Court was required to assess whether the District Court erred in its application of the statutory test under sections 106 and 107 of the Sentencing Act 2002.

The Court found that while the District Court correctly applied the three-step approach, it erred in its analysis at step 3. The Court noted that the District Court did not properly compare the consequences of a conviction with the gravity of the offence as assessed at steps 1 and 2. Instead, the Court considered the need for general deterrence, which is not relevant at the s 107 stage. The Court held that the District Court's error at step 3 was critical, as it failed to make the necessary comparison between the consequences of a conviction and the gravity of the offence. Consequently, the Court concluded that the s 107 test was not met, and dismissed the appeal.

The Court granted Blythe leave to appeal out of time, as the delay was due to counsel's oversight during the Christmas vacation, and there was no prejudice to the Crown. The appeal itself was dismissed, as the Court found no error in the District Court's assessment of the gravity of the offence and the consequences of a conviction. The Court emphasised that the focus should have been on comparing the consequences of a conviction with the gravity of the offence, rather than considering general deterrence.

Orders