Brown v New Zealand Police
[2019] NZHC 2348
•17 September 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-24
[2019] NZHC 2348
BETWEEN COLLIER BROWN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 September 2019 Appearances:
G J Denize for the Appellant F E Cleary for the Respondent
Judgment:
17 September 2019
JUDGMENT OF CULL J
[1] Mr Brown appeals both his conviction and the decision declining his s 106 application. He was found guilty of two charges of resisting arrest in a judge alone trial at the District Court at Napier.1 On 6 May 2019, Mr Brown was sentenced to a
$70 fine, and the Judge declined Mr Brown’s application for a discharge without conviction.2
[2] Mr Brown appeals his conviction on the ground that the District Court Judge erred in his assessment of the evidence. In his appeal against the decision declining his s 106 application, he alleges the Judge failed to consider relevant mitigating factors.
1 New Zealand Police v Brown [2019] NZDC 17303 [Conviction decision]; Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment or $2,000 fine.
2 New Zealand Police v Brown [2019] NZDC 13033 [Section 106 decision].
BROWN v NEW ZEALAND POLICE [2019] NZHC 2348 [17 September 2019]
Factual background
[3] The charges subject to this appeal arise from an incident in October 2018. Other charges arose from the same incident (dangerous driving, prohibited driving, possession of cannabis and failing to stop for flashing lights) but those charges were severed and transferred to Tauranga.
[4] Mr Brown was 17 years old at the time of the offending. On the morning of the 27 October the appellant was driving in his Ford Falcon in Napier. The appellant was prohibited from driving and was under the influence of cannabis. For approximately 20 kilometres the appellant led Police on various high-speed chases from the north of Napier to the north of Hastings. At several points Mr Brown was driving at speeds in excess of 150 kilometres per hour. At various points Police pursuits were called off due to public safety concerns.
[5] At approximately 9.30 am, Constable Palmer was patrolling in the Flaxmere area when he was notified via radio that Police were in pursuit of a fleeing driver, Mr Brown. Constable Palmer drove to an intersection off the Flaxmere expressway and spotted Mr Brown’s vehicle. Constable Palmer commenced pursuit, with his flashing lights and sirens activated. Constable Marshall had been following Mr Brown’s vehicle in an unmarked police car, without lights and sirens in order to report Mr Brown’s position. Mr Brown was followed for approximately two kilometres by Constable Palmer and Constable Marshall. Mr Brown then pulled his car over onto the shoulder of the road. Constable Palmer then parked his vehicle directly behind Mr Brown’s vehicle.
[6] Constable Marshall parked his patrol car directly in front of Mr Brown’s vehicle on an angle so as to block the front of the vehicle. The patrol car was approximately 10 cm from Mr Brown’s car.
[7] Constable Palmer got out of his vehicle and approached Mr Brown. Mr Brown then forcefully accelerated, closing the gap between his car and Constable Marshall’s car. Once Mr Brown’s car came into contact with Constable Marshall’s patrol car his back tyres began to spin.
[8] Constable Palmer then smashed the front driver door of Mr Brown’s car with his baton and reached through the window to grab the keys from the ignition. Constable Marshall then sprayed pepper spray on Mr Brown’s face. Mr Brown then moved towards the passenger side door. Constable Marshall opened the driver’s door and grabbed Mr Brown, pulling him back out of the car and onto the ground. Mr Brown continued to struggle and kick at the officers while he was on the ground. He swore at them, telling the officers to “fuck off”. The officers handcuffed Mr Brown and marched him over to Constable Palmer’s patrol car. Mr Brown continued to struggle against them and refused to get into the car. The officers pushed him into the vehicle.
Conviction appeal
District Court decision
[9] After outlining the charges, the Judge outlined the non-contentious facts. They were that Mr Brown had been pursued by police in a high-speed chase and had come to a complete stop, before being blocked in position by two police patrol vehicles. The Judge then turned to a consideration of the competing accounts of the facts.
[10] The Crown case was that on the first charge, Mr Brown resisted Constable Palmer by accelerating heavily and driving into the front police car, causing the wheels of his car to skid and attempted to climb over the front passenger to get out the passenger door when Constable Marshall used OC spray against him. As to the second charge, Mr Brown resisted Constable Marshall by struggling on the ground and/or refusing to enter Constable Marshall’s patrol vehicle. Both Constable Marshall and Constable Palmer gave evidence to that effect.
[11] The defence case was that, on the first charge, Mr Brown did not accelerate heavily, but came to a stop. Further, Mr Brown did not attempt to climb over the front passenger to get out, but to protect his girlfriend, who was sitting in the passenger’s seat. As to the second charge, Mr Brown struggled on the ground due to the effects of the OC spray, not to resist arrest. Finally, Mr Brown says he did not struggle to avoid getting into the police vehicle.
[12] The Judge also noted the photographic evidence produced that indicated that Mr Brown’s car was in physical contact with the unmarked patrol car.
[13] In considering the differing accounts and respective credibility of the witnesses, the Judge gave weight to the events leading up to the alleged resistance:
[7] We know from Mr Brown’s own evidence that he had been driving dangerously, he has apparently pleaded guilty to that in another Court. We know that he wished at that stage to get away from the police, he has told us that in evidence. That sets the tone.
…
[12] This was a situation where the police have been taken on a 20 odd kilometre adventure by a suspected 17 year old driver in a very powerful sports saloon and it was appropriate that the police should act quickly and positively to bring that conduct to an end. That is not to condone excess police force but to shed an air of reality on a situation which otherwise might assume an air of unreality.
[14] The Judge noted the “evidence of the two officers coincided in all elements material to the allegation of obstructing both of them”.3 As for Mr Brown, “[t]he best that can be said for the defendant is that his recollection of matters was hazy as a result of the deployment of OC spray, of his earlier consumption of cannabis and his desire to escape the police”.4
[15] The Judge concluded he was satisfied as to the officers’ account of the facts, and held both charges proven accordingly.
Approach to appeal
[16] An appeal against conviction in a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011. This appeal is brought under s 232(2)(b):
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
3 Conviction decision, above n 1, at [14].
4 At [15].
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
(c)in any case, a miscarriage of justice has occurred for any reason.
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[17] The Supreme Court recently re-examined the approach to assessment of evidence for conviction appeals in Sena v New Zealand Police.5 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well- established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.6
First ground of appeal against conviction: that the Judge erred in his assessment of the evidence.
[18] Ms Denize for Mr Brown submits that the District Court Judge erred in concluding Mr Brown resisted arrest by accelerating the vehicle after he had pulled over. She submits the oral evidence from Constables Marshall and Palmer was inconsistent with the photographic evidence and the damage to the front police vehicle.
[19] Constable Marshall’s evidence was that he parked his patrol car directly in front of Mr Brown’s vehicle on an angle so as to block in the car and prevent it from moving. The patrol car was approximately 10 cm from Mr Brown’s car. Constable Palmer got out of his vehicle and approached Mr Brown. Constable Marshall’s evidence was that at that point, Mr Brown’s vehicle began to accelerate. As Mr
5 Sena v New Zealand Police [2019] NZSC 55.
6 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Brown’s car closed the gap and was hard up against Constable Marshall’s car, Mr Brown’s wheels began to spin:
Q. Constable Marshall, your evidence earlier was that you estimated 10 centimetres?
A. Yes.
Q. A 10 centimetre movement, so you saying that the vehicle has travelled forward 10 centimetres?
A. Approximately.
Q.Approximately and you’re saying that the rear left wheel was smoking and that was caused when it had previously been on the tar seal, is that correct?
A.Yes, it began spinning, smoking, moving left, pivoting left off my car and the[n] moved into the grass where it kicked up dust and such.
[20] Constable Marshall said there was only minor damage to the front of his vehicle from the impact: a small bit of paint transfer and a small ding. Constable Palmer’s evidence was consistent with that account:
Q. Was his vehicle stationary at that time or not?
A. Immediately as the other constable pulled his car in front which there wasn’t a very big gap but he ran into the side of it and so his vehicle was kind of sliding as the wheels were spinning, it was partially on the grass.
Q. Had the green vehicle been stationary at that place at any time?
A. Yes, yes.
Q. And then moved again?
A. Yes.
[21] Constable Marshall gave evidence there was only minimal damage. I consider it is a reasonable inference that if Mr Brown accelerated for only 10 centimetres, it would result in a light impact, and consequently, only minor damage. The cars are just touching in the photograph produced. The only alternative theory as to why the cars are touching is that Constable Marshall’s car overshot the distance as he pulled over, scraping the side of his car as he did so. However, there is no evidence of scratches or scrapes on Constable Marshall’s car. Finally, Mr Brown himself admitted in
questioning from the Judge that he did not feel Constable Marshall’s car hit his own as he pulled up:
Q. And the car that blocked you in front did that hit your car at that time?
A. It was really close, like he was real.
Q. Did it hit your car or not?
A. I’m not too, I can’t answer, I don’t know.
Q. Did you feel it hit your car?
A. No.
[22] I find it was open to the Judge to accept the Constables’ evidence and conclude Mr Brown accelerated his vehicle.
[23] Ms Denize further submits the Judge erred in finding Mr Brown attempted to fight off the officers on the ground after he had been dragged out of the car. She argues that rather, Mr Brown was thrashing on the ground from the effect of the pepper spray. She says Mr Brown’s evidence was consistent with that. But as the Crown points out, the fact that Mr Brown’s evidence was consistent with this theory is far from conclusive. Constables Marshall and Palmer gave a different account. On their evidence, Mr Brown fought them off while he was on the ground outside the car. Constable Marshall said Mr Brown tried to push the officers away and yell at them. Constable Marshall applied an arm bar and restrained him with his knees until handcuffs were put on him.
[24] With diametrically opposed evidence from the witnesses, the Judge’s finding was one of credibility. The Judge made adverse credibility findings against Mr Brown, noting his recollection was hazy at points and that he was under the influence of cannabis at the time of the offending. I find it was open to the Judge to make those findings. I also bear in mind the Supreme Court’s comments on the limitation on appeal judges:7
[38] …Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had.
7 Sena v New Zealand Police, above n 5 (footnotes omitted).
Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”. There are two main, overlapping, reasons for this.
[39] The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
[25] Finally, Ms Denize submits the Judge erred in finding Mr Brown was reluctant to enter the police car. Whatever view is taken of this evidence, the two charges were proven with the finding Mr Brown accelerated the vehicle and struggled with the officers when he was on the ground. It was therefore, not necessary to make this finding on the evidence, in order to find the two charges were proven.
[26]I do not uphold this ground of appeal.
Second ground of appeal against conviction: bias and unfairness
[27] Ms Denize submits that the Judge’s interjections in cross-examination gave a general impression of bias. She points to several points in the transcript where the Judge asked his own questions of both the prosecution and defence witnesses.
[28] A judge is empowered to ask any question of a witness “that, in the opinion of the judge, justice requires”.8 In determining whether to exercise the discretion a judge should take into account the defendant’s right to a fair trial, the need to let counsel pursue their examination and cross-examination of witnesses and the possibility that judicial questioning could cut across a defence which a defendant wishes to rely on
8 Evidence Act 2006, s 100.
but which may not be apparent to the judge.9 The Court of Appeal’s comments in
Tahere v R are instructive in this regard:10
[36] …a Judge may not intervene so as to cause a reasonable observer to think the court partial as between the parties. Interventions may convey that appearance where they indicate that the Judge has become an advocate, or that the evidence for a party on a controversial point ought to be believed, or not. Nor should interventions detract from the party’s orderly presentation of its case or prevent an accused from offering an account in his or her own way in the witness box. A judge who intervenes frequently or at length must take care to avoid conveying the wrong impression, but the number of interventions matters less than their impact on the parties’ cases and any impression they convey to the reasonable observer about the judge’s attitude toward the parties.
[29] The Court of Appeal has held that there must be more latitude afforded to judges in choosing to intervene in a judge-alone trial as “such a Judge wants to be certain of the facts before coming to a decision on guilty or otherwise”.11
[30] But particular caution is required when a judge questions a defendant who has elected to give evidence in a criminal trial.12 Overall, the question is whether the conduct of the judge (in either failing to intervene or intervening excessively) interfered with the right of the defendant to a fair trial or gave rise to a reasonable apprehension of bias.13
[31] I do not consider the Judge’s questioning gave an impression of bias. The questions were directed at clarifying the witnesses’ accounts of the evidence. For example, the Judge asked Constable Marshall further questions as to the contact between Mr Brown’s car and Constable Marshall’s car:
Q.Let me clarify this point and up to this point. His vehicle had become stationary with a car parked close behind it?
A. Yes, that’s right, Sir.
9 M v R [2015] NZCA 183 at [33].
10 Tahere v R [2013] NZCA 86 at [31] (footnotes omitted).
11 EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA) at 149 per Cooke P, citing Wilson v Collector of Customs HC Auckland, M 604/79, 28 June 1979, cited most recently in Chief Executive of Ministry of Social Development v L [2018] NZHC 2528.
12 R v Molioo [2008] NZCA 333, Holland v R [2010] NZCA 279; Beckham v R [2012] NZCA 290; and Tahere v R, above n 10.
13 Adams at TP25.06; and Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216, at [84]– [86].
Q. You angled across the front of him?
A. Yes, sir.
Q. So that your left front panel was in the way of his right front panel?
A. Yes, sir.
Q.Were those two panels in contact with each other at the time you stopped your car?
A. No, Sir.
Q. What distance between you would there have been do you think?
A. Um, 10 centimetres, Sir. It was small, if that.
Q. If that?
A. Yep.
Q.10 centimetres. The photographs depict the two vehicles apparently in contact.
A. Yes, sir.
Q. How did that come about?
A. From the defendant driving into my vehicle, Sir.
[32] This line of questioning relates to issues that had been already covered in Constable Marshall’s evidence in chief. It is evident the Judge was seeking to clarify the witness’ account of what happened. On another occasion, the Judge asked a follow up question to clarify the witness’s day-to-day experience:
COUNSEL:
Q. In your day-to-day duties as a constable, you would not usually use pepper spray when you are dealing with offenders, would that be correct?
A. No.
THE COURT:
Q. Constable, how often have you deployed pepper spray this year?
A. I don’t believe I have this year, Sir.
Q. How many days have you been on duty this year approximately?
A. Monday to Friday every week, give or take a few days.
[33] The only area where there might be some apprehension of bias is during Ms Denize’s cross-examination of Constable Palmer. Ms Denize pursued a line of questioning about the Constables’ restraint of Mr Brown after he was pulled from the car:
Q. With that number of police officers involved smashing a window of a car, pepper spraying the driver, putting him on the ground and hand- cuffing him there was tension involved, would you agree with that?
A.Yes I’m not too sure what you mean by tension. He was probably tense, we were probably tense, you know.
Q. It wasn’t a relaxed situation.
A. No, it wasn’t relaxed, no.
THE COURT:
Q.It was a situation that presented some policing imperatives I would have thought.
A. Sure.
Q. Would that be fair to say?
A. Yes.
Q. That you had to act resolutely?
A. Yes.
Q. And quickly?
A.It would have been a situation if he stopped his car and got out of his car with his hands up and, you know.
Q. Or if he had been pulled over for a driver licence check?
[34] This passage does give the appearance that the Judge believed the officers had acted reasonably in their response to Mr Brown. However, overall I do not consider there was any inappropriate questioning of the Police Officer or questioning that gave an impression of bias, particularly following the answers elicited in cross-examination.
[35] There was a further matter raised in relation to the Judge’s questioning of Mr Brown himself, to which Ms Denize took objection. At one point there was animated discussion as to whether Mr Brown was hit by the officers after he had been pulled
from the car. There was questioning by the Judge of Mr Brown’s description that he was “bashed”:
COUNSEL:
Q. They said you were kicking out at them?
A. No.
Q.Well, you weren’t complying, you just didn’t put your hands behind your back and said hand-cuff me, did you?
A. They chucked me on the ground and like forced me to, they, I don’t know.
Q. Your words were “They were bashing me”.
A. They were.
Q.I put it to you they were restraining you trying to get the hand-cuffs on.
A.This is far out, I got scars on my head and shit and I have bruises on my ribs, obviously he’s bashed me. Obviously, he’s done something.
Q.Well, again, I put it to you if you were getting bashed like you say and bashed is quite an emotive word, that you would have more injuries than what is in your photograph.
A. So, is that not a bash? Is that not a bash?
THE COURT:
Q. No, well, just tell me this. From the time you were stood up with your hands cuffed behind you was there any more bashing after that?
A. After I was stood up?
Q. After you were stood up and got your hands behind you and you’re walking to the police car.
A. No.
Q. No more bashing.
A. No. It was while I was on the ground and when I was in the car.
Q. You weren’t bashed at the police station?
A. No.
[36] I consider that this passage shows the Judge clarifying with Mr Brown whether he was hit by the Police after he was handcuffed. Overall, I do not consider a reasonable person would impute bias from the Judge’s questioning or that a miscarriage of justice occurred. Ms Denize relied on the Court of Appeal’s judgment in Kane v R, to submit that the Judge’s questioning of the defendant here amounted to a miscarriage of justice.14 The facts of that case were different.
[37] First, the questioning in Kane was in the context of a jury trial. This was a Judge alone trial, and the Judge is the finder of fact. Second, the Judge in Kane went beyond asking questions of clarification. It was accepted that his questions amounted to cross-examination of the witness. At several points in Kane, the Judge’s disbelief of the witness is made very apparent, and those passages are highlighted in the decision.15 Here, I do not consider the Judge’s questioning of the witness was in the nature of cross-examination. He adopted the defendant’s robust terminology by the use of the defendant’s word “bash” and attempted to clarify with him when he maintained he was hit.
[38] Ms Denize further submits the Judge’s interventions had a “chilling effect” on the ability of counsel to put the appellant’s case to the prosecution witnesses. She says the Judge’s questioning prevented counsel from questioning the officers about the lack of skid marks on the photos on the basis the appellant would not be calling a traffic expert and denied her the opportunity “to properly highlight inconsistencies with the Prosecution witnesses’ evidence and the photos” in the exhibit.
[39] In the passage referred to by Ms Denize, it is correct that the Judge curbed Ms Denize’s questioning of the witnesses on the lack of skid-marks in the photograph because the questioning sought opinion evidence, for which the witnesses were not qualified. A witness may only state an opinion if that opinion is necessary to enable the witness to communicate what they saw or heard.16 Ms Denize contends their answers did not require technical expertise but related specifically to their account as to what they say they saw. I am unable to uphold this submission. To permit Ms
14 Kane v R [2019] NZCA 328.
15 At [12].
16 Evidence Act 2006, ss 24–25.
Denize to ask these witnesses why the photographs did not evidence any skid marks on the ground was to invite speculation. The witnesses’ attempt to explain, without expertise in photographs, would inevitably result in inadmissible opinion evidence, which the Judge would have had to put aside.
[40] Finally, Ms Denize submits that no allowances were made for the appellant’s youth. The judge-alone trial was Mr Brown’s first trial and it was submitted there was “no accommodation made for the appellant’s youth”. Ms Denize referred to the International Convention on the Rights of the Child, but did not address what allowances ought to have been made at the hearing. Although Ms Denize referred to the Judge’s questioning again in this context, I do not consider any miscarriage of justice arose from the Judge’s questioning, as Mr Brown was forthright in his responses to the Judge’s questions and there were no matters raised before me to demonstrate that Mr Brown was under duress or disadvantaged in some material way.
[41]This ground of appeal is also dismissed.
Section 106 sentence appeal
District Court decision
[42] After a few preliminary comments as to case management, the Judge noted counsel for Mr Brown had provided material related to policy considerations for criminal procedure on 17 year olds and general research on adolescent development.17 The Judge explained this material did not take on authoritative proportions in the context of the test following a s 106 application. The central issue, regardless of that material, was whether the consequences of the conviction entirely outweighed the culpability of the offending.18
[43] Turning to as assessment of the gravity of the offending, the Judge noted the offending took place in the context of a highly dangerous and lengthy car chase. He concluded “[t]his was a moderately serious incident of resistance arising out of a very
17 Section 106 decision, above n 2, at [6].
18 At [7].
serious incident of driving fault and wilful driving disobedience and it is not to be minimised”. 19
[44] As to the consequences of a conviction, the Judge observed there was the proposition of a general stigma but “that of course depends on the nature of the offence… these particular offences of resisting constables while executing their duty are at the bottom of the criminal code”.20 There were no other specific consequences pointed to.
[45] The Judge concluded that, overall, “the whole of his behaviour seen in context does justify a criminal record” and he was not satisfied the threshold for discharge was met.21
Approach to appeal
[46] The appeal against the decision declining the s 106 application is brought under ss 231 and 248 of the Criminal Procedure Act 2011. An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.22 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:23
(a)by virtue of a material error by the sentencing judge in entering a conviction; or
(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Act.
[47] As stated by the Court of Appeal in R v Hughes, s 107 “provides a gateway through which any discharge without conviction must pass”.24 The Court noted that such an appeal is not an appeal against the discretion of the Court:25
19 Section 106 decision, above n 2, at [10].
20 At [7].
21 At [14]–[15].
22 Jackson v R [2016] NZCA 627 at [6]-[16].
23 At [12].
24 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
25 At [11].
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles ... The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.
[48] The approach to be adopted by an appeal court in relation to s 107 has been summarised as:26
[28] An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.
Relevant law
[49] Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, the court “may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence”. The application of s 106 is guided by s 107:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[50]More recently, the Court of Appeal, speaking of the s 107 test, said:27
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
26 Denden v Police [2014] NZHC 1814 (citations omitted).
27 Prasad v R [2018] NZCA 537 (citations omitted).
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
Analysis
[51] Ms Denize submits the Judge erred in failing to consider several mitigating factors. She notes the Judge ought to have considered Mr Brown’s personal circumstances. She cites Mr Brown’s youth, his relatively unstable home life, the fact both his parents have criminal convictions and his father has drug and alcohol issues. Mr Brown left school at 14 and has smoked cannabis regularly since the age of 14.
[52] The Judge did not explicitly consider Mr Brown’s youth or those personal circumstances when assessing the gravity of the offending. This was an error — in assessing a discharge without conviction application the first step is for the court to assess the gravity of the offending. In doing so the judge must take into account all aggravating and mitigating factors of the offending and the offender.28
[53] I consider the District Court Judge erred in assessing the gravity of the offending as moderately serious. Leaving aside the mitigating factors for one moment, the nature of the offending is at the most serious end of the scale for this kind of offending. The attempts to resist were continuous, despite verbal warnings and attempts on the part of the officer to control Mr Brown. The broader context of the offending cannot be ignored. Mr Brown’s resistance followed a lengthy, dangerous car chase at high speeds, under the influence of cannabis. Measured against that, I accept that his youth and difficult personal circumstances take the nature of the offending to a moderate to low level.
[54] Turning to a consideration of the consequences of a conviction, Ms Denize submits the charge of resisting police carries a stigma and is likely to have a
28 Prasad v R, above n 27, at [11].
detrimental effect generally on his future dealings with police and future employment. She does not put forward any specific consequences of a conviction.
[55] Overall, even assessing the seriousness of the offending as moderate to low, I do not consider the consequences of a conviction are “all out of proportion” to the gravity of the offence. They are no more than the ordinary consequences of a conviction, in fact, the consequences Mr Brown will already be facing as a result of his other convictions for the same set of offending.
[56] In the circumstances I do not consider this warrants the exercise of the Court’s discretion to grant a discharge without conviction.
[57]I dismiss the appeal.
Cull J
Solicitors:
Elvidge & Partners, Napier for the Respondent
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