C v Police - [2022] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-55

[2022] NZHC 878

BETWEEN
C

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 April 2022

Counsel:

C J Tennet for Appellant

H R Hancock for Respondent

Judgment:

29 April 2022

REASONS JUDGMENT OF ELLIS J

[1] On 8 March 1996, when C was 21, she was convicted of being a party to unlawful sexual intercourse with a girl aged 12-16 years.1 She had pleaded guilty to that charge. Her then-partner, H, had also pleaded guilty as a principal to the charge. The girl in question was a few months shy of her 16th birthday at the time of the offending.

[2] C was sentenced to a six-month suspended prison sentence and six months of supervision. She had never offended before. Since then, she has committed a very small number of minor offences.

[3] Some 25 years later—on 20 December 2021—Gwyn J granted C an extension of time to appeal her sentence.2 She determined the delay was, for various reasons,

1 Crimes Act 1961, s 134(1) and s 66(1).
2 C v New Zealand Police [2021] NZHC 3560. Strictly speaking—and as Gwyn J expressly acknowledged—an appeal that is predicated on the contention that the appellant should have been

C v NEW ZEALAND POLICE [2022] NZHC 878 [29 April 2022]

explicable and that, on the face of it, there was merit in the argument that C should have been discharged without conviction, which apparently had not been considered at sentencing.

[4] C’s appeal was heard before me on 6 April 2022. In a results judgment issued the following day I allowed the appeal and granted C a discharge without conviction, with reasons to follow. These are those reasons.

New “evidence” and background material

[5] Police had no objection to the admission, on appeal, of further evidence from C about relevant matters subsequent to her 1996 conviction. As will be seen, those matters were addressed quite extensively by Gwyn J in the course of her judgment. I discuss them in more detail later in this judgment.

[6] As far as the offending itself was concerned, Mr Tennet initially indicated that he might seek to adduce further evidence about that, too.. But prior to the hearing he sensibly recognised that the logistical difficulties presented by that course (some 25 years after the event) counted against it. He therefore agreed with Mr Hancock that matters would proceed largely based on the 1996 summary of facts which formed the basis of C’s guilty plea.

[7] That position is, however, slightly complicated by the fact that the only account now existing of C’s sentencing itself appears to be a brief newspaper article published at the time and helpfully provided to the Court at an earlier point by Mr Hancock. Gwyn J referred to it in her judgment and I propose to do so too. Needs must. Also available to the Court is the statement made by the…

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 C v Police

Details

AGLC: C v Police [2022] NZHC 878
Case: [2022] NZHC 878
Decision Date: 29 April 2022

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by C against her sentence for unlawful sexual intercourse with a minor. The court was tasked with determining whether the consequences of C’s conviction were disproportionate to the gravity of the offence, potentially warranting a discharge without conviction. The appeal arose 25 years after the conviction, with C arguing that her current circumstances rendered the conviction disproportionately severe. The court examined the nature of the offence, the seriousness of the specific incident, and the impact of the conviction on C’s life. It was noted that the maximum penalty for the offence had increased since the time of the conviction, and the court found the offence to be of moderate seriousness. The court also considered C’s subsequent life events, including the breakdown of her relationship, difficulty in securing employment due to her conviction, and her inability to access emergency housing. The court concluded that the consequences of the conviction were indeed out of proportion to the gravity of the offence and granted C a discharge without conviction.

The final order was that the appeal was allowed, the conviction quashed, and C discharged without conviction on the single charge under ss 134 and 66 of the Crimes Act 1961.

Orders