Brodie v Police - [2016] NZHC 120

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000041 [2016] NZHC 120

BETWEEN
LESLIE STEWART BRODIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 February 2016

Appearances:

M J Phelps for Appellant
M Mitchell for Respondent

Judgment:

10 February 2016

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 10 February 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

BRODIE v NEW ZEALAND POLICE [2016] NZHC 120 [10 February 2016]

[1] Mr Brodie pleaded guilty in the District Court to a charge of common assault.1 On 31 July 2015 Judge Rea ordered Mr Brodie to make an emotional harm reparation of $1,000 to the victim of his offending but imposed no other penalty.

[2] Mr Brodie appeals against conviction and sentence. He contends that the Judge ought to have made an order under s 106 of the Sentencing Act 2002 (the Act) discharging him without conviction.

Background

[3] The charge was laid as a result of an incident that occurred on the afternoon of 18 October 2014. On that date Mr Brodie went with his two sons to a bar in central Hastings. They were drinking in an area of the bar near where the complainant and his partner were dancing. One of Mr Brodie’s sons put his drink down on the shelf near the complainant and his partner. The complainant’s partner picked up the drink to avoid it being spilled on her jacket. Mr Brodie’s son thought she had taken his drink. A verbal altercation then ensued.

[4] Mr Brodie’s son initially moved away from the complainant and his partner. A short time later, however, he went back towards the complainant in an aggressive manner. As Mr Brodie’s son advanced on the complainant, the complainant pushed him away. Mr Brodie’s son then began punching the complainant in the head. A short time later Mr Brodie’s other son joined in the attack. He, too, began punching the complainant in the head. At this point Mr Brodie became involved. By this stage the complainant was pinned against a pool table. Mr Brodie put the complainant in a headlock and lowered him to the ground. The complainant took exception to this and bit Mr Brodie on the arm. Mr Brodie responded by punching the complainant in the side of the head.

[5] CCTV camera footage of the incident shows that the fracas went on for some considerable period. It ended when members of the bar’s security staff extracted the
complainant and took him outside. The complainant required medical attention as a

1 Crimes Act 1961, s 196. Mr Brodie was originally charged with injuring with intent to injure under s 189(1) of the Crimes Act 1961.

result of the incident. He received 12 stitches to the cheek and six stitches to his ear. He also had a considerable number of bruises.

Relevant principles

[6] Applications for discharge without conviction are governed by s 106 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.

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Details

Case: [2016] NZHC 120
Decision Date: 10 February 2016

CaseChat Overview and Summary

The case of Brodie v Police is an appeal against conviction and sentence brought by Leslie Stewart Brodie, who had pleaded guilty to a charge of common assault in the District Court. The central issue in the appeal is whether the District Court Judge should have discharged Mr Brodie without conviction under section 106 of the Sentencing Act 2002. The appeal court is required to assess the gravity of the offending, the direct and indirect consequences of a conviction, and whether the latter are out of all proportion to the gravity of the former. The court found that the gravity of the offending was lower than the District Court Judge had assessed, considering factors such as the reduced charge, Mr Brodie's delayed involvement, and his previous good character. However, the court concluded that the direct and indirect consequences of a conviction were not out of proportion to the gravity of the offending, leading to the dismissal of the appeal. The final outcome was that the appeal was dismissed, affirming the original conviction and sentence.

Orders