Boys v Police - [2024] NZHC 2132

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-96

[2024] NZHC 2132

BETWEEN
DANIEL SIMON STUART BOYS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 July 2024

Appearances:

T J McGuigan and Z L Trapski for the Appellant B W D Alexander for the Respondent

Judgment:

1 August 2024

JUDGMENT OF HARLAND J

Introduction

[1] On 8 November 2023, Daniel Boys pleaded guilty to two charges of indecent assault.1 On 9 April 2024, at sentencing, he advanced an application to be discharged without conviction because he contended that the employment and immigration consequences of a conviction were out of all proportion with the gravity of his offending. The Judge entered convictions on both charges2 and ordered the appellant to pay $750 in emotional harm reparation to each victim.3 He now appeals. The appellant maintains that the Judge made various errors of law when assessing his application for a discharge without conviction on both charges.

[2]The Police oppose the appeal.

1      Crimes Act 1961, s 135; maximum penalty seven years’ imprisonment.
2      Police v Boys [2024] NZDC 7611.
3      Police v Boys [2024] NZDC 7642.

BOYS v POLICE [2024] NZHC 2132 [1 August 2024]

[3] I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.

Factual background

[4] The appellant is a citizen of the United Kingdom. He first came to New Zealand in January 2013 while travelling and applied for work visas. In approximately July 2019, he met his partner, and they commenced a relationship. The appellant’s partner is a New Zealand citizen. In January 2022, the appellant applied for a resident visa under the partnership category, based on his relationship. He was granted a resident visa on 20 September 2022.

[5] On the evening of 23 December 2022, the appellant, then aged 37, was at a Christchurch bar with a group of friends.

The first indecent assault

[6] At about 10.30 pm, a 25-year-old female waitress, employed at the bar, was walking towards it when she was stopped by the appellant after he turned around on his seat to talk to her. He outstretched his hand to initiate a handshake and the victim shook his hand briefly. After a short conversation, the appellant reached out again towards the waitress and placed his hand on her breast momentarily with an open palm, without her consent.

The second indecent assault

[7] Between 6:55 pm and 11:55 pm, a 46-year-old woman, who was also a waitress at the bar, was approached by the appellant while she was seated at a table with a friend. The appellant placed an arm around her and attempted to feel her breast with his hand. The victim told him not to touch her, so he removed his arm but attempted to touch her breast again a short time later. The victim told the appellant that she was married and, again, told him not to touch her. The appellant did not attempt to…

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: [2024] NZHC 2132
Decision Date: 1 August 2024

CaseChat Overview and Summary

The appellant, Daniel Boys, appealed against his convictions for two counts of indecent assault, arguing that the District Court Judge had erred in refusing his application for a discharge without conviction. The High Court found that the Judge had not erred in his assessment of the offending, the consequences of conviction, or in his proportionality assessment. The appeal was dismissed. The appellant, a citizen of the United Kingdom, had been in New Zealand since 2013. On 23 December 2022, while intoxicated, he indecently assaulted two female waitresses at a bar in Christchurch. On 8 November 2023, he pleaded guilty to the charges. At the sentencing hearing, he sought a discharge without conviction, arguing that the consequences of conviction would be out of all proportion with the gravity of his offending. The Judge refused the application, convicted the appellant and ordered him to pay reparation to each victim. The appellant appealed, arguing that the Judge had erred in his assessment of the offending, the consequences of conviction, and in his proportionality assessment. The High Court found that there was no error in the Judge’s assessment of the offending, the consequences of conviction or the proportionality assessment. The appeal was dismissed.

Orders