Boko v Police

[2014] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000255 [2014] NZHC 2758

BETWEEN

TROY BOKO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 November 2014
Appearances:	M J Dyhrberg QC for Appellant R K Thomson for Respondent
Judgment:	6 November 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 November 2014 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Copy to:            M J Dyhrberg QC, Auckland

BOKO v NZ POLICE [2014] NZHC 2758 [6 November 2014]

Introduction

[1]      Mr Boko pleaded guilty in the District Court at Auckland to one charge of causing bodily injury by carelessly using an airgun.   Judge E P Paul declined his application for discharge without conviction and sentenced him to 60 hours community work.1   He also made an order for destruction of the firearm.

[2]      Mr Boko appeals against the entry of conviction.

Background

[3]      The  background  to  the  offence  and  the  relationship  between  the  various parties involved in the offending are important to the disposition of this appeal.  Mr Boko’s  sister  had  a  relationship  with  the  victim,  Mr  Parker.    She  obtained  a protection order against Mr Parker.  They shared joint custody of their five year old daughter.  The daughter was with Mr Boko’s sister on the afternoon of 22 December

2012 for a family occasion.  Mr Parker texted Mr Boko’s sister later in the afternoon requiring her to deliver the child back to him or he would come and get her.  She responded by telling him not to come to the address or she would call the police. Matters escalated to the stage where she did call the police.  While she was still on the phone to the police Mr Parker arrived at the address where Mr Boko, his sister and other family members were.   Mr Parker was told to leave.   He refused and started to abuse Mr Boko’s sister.  Mr Boko’s father went to the door and asked Mr Parker to leave.   Mr Parker punched Mr Boko’s father in the face.   There was pushing and shoving between the two which led to both of them fighting outside at the bottom of the stairs.  Mr Boko’s father fell to the ground.  Mr Parker continued to fight with him after he had fallen to the ground.  Mr Boko’s sister and mother were trying to separate the two men.

[4]      Mr Boko was by this time in his room.  He had a brand new airgun still in the box in his room.  He took the air rifle from the box and loaded it.  He went to the window and opened it.   Mr Parker and Mr Boko’s father were still fighting.   Mr Boko called out to Mr Parker to stop but he continued.  Mr Boko then “aimed in the

direction of [Mr Parker] and shot him once in the back”.   Mr Parker continued

1      New Zealand Police v Boko DC Auckland CRI-2013-004-8897, 25 July 2014.

fighting with Mr Boko’s father.  Mr Boko reloaded the air rifle and again called out to Mr Parker to stop.  By this stage other people arrived and took Mr Parker to his vehicle.  He then left the address.

[5]      The pellet lodged between Mr Parker’s 11th and 12th ribs, which resulted in a moderate collapse of the right lung and fracture of the right 12th rib. The pellet could not be removed and remains in situ.  The summary of facts records Mr Parker has pain in his back, stomach and back cramps requiring medication to control.

[6]      When spoken to by the police Mr Boko said when he shot at Mr Parker that:

he didn’t mean to hurt him he just wanted to scare him away, when this didn’t happen he reloaded the rifle but didn’t shoot … as the neighbours arrived to help.

[7]      At the age of 29 Mr Boko has no previous convictions.

[8]      Mr Boko has filed an affidavit in support of his application for discharge. The affidavit contains further evidence about two important features, which are not in dispute.  They are that initially he was with his sister when she confronted Mr Parker and he was able to close the door.  After that he went to check whether the children within the house were safe.  It was only at that time, when he was in his room, that he looked out the window and saw the fight between his father and Mr Parker.   That explanation addresses any suggestion that Mr Boko left the fracas downstairs and deliberately went to access the air gun to shoot at Mr Parker.  On his evidence he was already in his room when the scene involving the fight between his father and Mr Parker unfolded.

[9]      There is a further factor Mr Boko refers to, that is that Mr Parker had his dog, a pit-bull terrier, with him at the time and the dog itself was loose and was becoming excited. That posed a further threat to the situation.

The Judge’s decision

[10]     The  Judge  correctly  identified  the  considerations  for  an  application  for discharge were as set out in Z v R.2    The Judge considered the gravity of the offence to be particularly serious.  He recorded:

[16]     The charge is careless use, but having examined the agreed facts, which I have taken the time to record in this sentencing today, frankly they indicate to me that your behaviour was not careless but in fact reckless. …

…

[18]     My view is that even taking account of the mitigating factors that I have referred to, a far more serious charge could well have been laid against you;  you are [fortunate] only careless use has been presented.  …

[11]     While  acknowledging  the  loss  of  employment  as  a  not  insignificant consequence Judge Paul concluded that it could not be said to be so significant as to be out of all proportion to the crime Mr Boko had committed.  For that reason he declined to exercise his discretion.   Leading to that conclusion was the Judge’s reasoning that:

[22]     … In particular I view your deliberate actions arming yourself that day, firing at the victim and going on to reload that firearm as significant in terms of increasing the seriousness of your offending.

[12]     Despite those findings, however, the Judge took account that Mr Boko had already undertaken community work and sentenced him to 60 hours community work.

The appeal

[13]     The appeal is primarily advanced on the basis that:

(a)       the Judge wrongly assessed the gravity of the offending by effectively treating it as a more serious offence than the offence Mr Boko was

charged with;

2      Z v R [2012] NZCA 599.

(b)took  account  of  an  irrelevant  factor,  namely  the  reloading  of  the firearm;  and

(c)       failed  to  give  sufficient  weight  to  the  information  regarding  the

complainant’s attitude following a restorative justice conference;  and

(d)failed to give sufficient weight to the inevitable loss of employment and the additional consequences that would flow from that.

[14]     The  Crown  submit  the  Judge’s  decision  to  decline  the  discharge  was appropriate  and  there  was  no  error  of  law  because  the  consequences  of  the conviction were not out of all proportion to the gravity of the offending.

The gravity of the offending

[15]     Mr Boko was charged under s 53(1) of the Arms Act 1983.  The offence was causing bodily injury to any person by carelessly using an airgun.   That is the offence to which he pleaded guilty.  With respect to the Judge he overstated matters by concluding that Mr Boko had acted recklessly.   The offence of discharging an airgun at any person with reckless disregard for their safety is an offence under s 198(2) of the Crimes Act 1961 and carries a maximum penalty of seven years.  The Judge effectively equated Mr Boko’s actions with an offence under s 198(2) by categorising his behaviour as reckless and emphasising the fact that Mr Boko fired at the complainant.

[16]     The Judge may well be right in that Mr Boko was fortunate he was charged with the Arms Act offence but that is the offence to which he pleaded guilty.  If he had been charged with a more serious offence he may not have pleaded guilty.  Other issues such as the defence of another may have been raised.

[17]     Further,  the  Judge’s  sentence  of  60  hours’  community  work  is  itself inconsistent with this observation that the offending was at the highest end in terms of seriousness for this type of offending.

[18]     Also the Judge’s reliance on the fact the airgun was reloaded as somehow aggravating the offence is problematic.  The Judge says he considers that increased the seriousness of the offending but, given the offence is carelessly discharging a firearm, the fact he desisted and did not discharge the firearm for a second time after reloading it supports an interpretation that he acted with some restraint.

[19]     The Judge’s approach to these issues influenced his assessment of the gravity of the offending and caused him to fall into error.

[20]     In  terms  of  other  circumstances  of  the  offending  generally  it  is  also particularly relevant that following this incident there has been an effective reconciliation between Mr Parker and Mr Boko and his family following a very successful restorative justice conference.  Mr Parker has written a note in support of Mr Boko.  Mr Parker appeared at Court with Mr Boko and his family in support of the appeal. While, as the Judge correctly pointed out, the victim’s views are not determinative,  they  are  nevertheless  a  factor  the  Court  is  required  to  take  into account and are particularly relevant in this case.

The consequences of the offending

[21]     The Judge correctly noted that Mr Boko’s  loss  of employment as an  IT consultant would be a significant consequence of a conviction.  Mr Jack, the director of Mr Boko’s employer, has filed an affidavit for the purposes of the appeal confirming that remains the position.  He is fully aware of the circumstances of the offending and has been able to continue Mr Boko’s employment pending the appeal, but maintains his position that if the conviction stands the employment will immediately be terminated. The company deals in electronic security work, overseas travel is involved and a conviction would not be acceptable.

[22]     While  the  Judge  correctly  identified  the  loss  of  employment  as  not insignificant he  failed  to  go  on  to  take  account  of the  additional  consequences flowing from that loss of employment, namely the likelihood Mr Boko would lose his home in that he would be unable to maintain his mortgage payments which in turn would cause problems for his father who is dependent on him for housing.

Summary

[23]     Standing back and looking at the matter overall I am satisfied that, in the particular circumstances of this case, a conviction and the consequences of that conviction would be out of all proportion to the gravity of the offending, when the offending is seen in context.

Result

[24]     The appeal is allowed.  The conviction is quashed.  Mr Boko is discharged without conviction. The order for destruction of the firearm stands.

Venning J