C v Police HC Auckland CRI-2009-404-409

[2010] NZHC 212

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-409

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 February 2010

Appearances: Appellant in person

Ms P Singh for the Respondent

Judgment:      4 March 2010

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 4 March 2010 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Ms P Singh, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

Copy to:

R C  109/85 Beach Road, Auckland Central 1010.

C V NEW ZEALAND POLICE HC AK CRI-2009-404-409  4 March 2010

The Appeal

[1]      Just over four and a half years ago, in August 2005, the respondent was convicted of common assault under s 196 of the Crimes Act 1961.  The charge, to which he had pleaded guilty, carries a maximum sentence of 12 months imprisonment.

[2]      The sentence imposed by Judge P D Mahony in the Auckland District Court was an order for the appellant to come up for sentence if called upon within 12 months.

[3]      The appellant seeks leave to appeal that sentence out of time.  His primary submission is that he should have been discharged without conviction under s 106 of the Sentencing Act 2002.

Sentence

[4]      The appellant initially faced a much more serious charge of injuring with intent  to  cause  grievous  bodily  harm  laid  under  s 189(1)  of  the  Crimes  Act. Doubtless as a result of the efforts of his then counsel, Mr J Boyack, the charge was reduced two months after it was laid.

[5]      Eighteen months passed between the appellant’s offending and his conviction and sentence.  There had been a Restorative Justice Conference held in November

2004.  The appellant had also sought assistance for his then problems.

[6]      The appellant had apparently hoped for diversion.  The police, however, and quite properly so, were not prepared to grant diversion because, remarkably, the appellant had already achieved five previous discharges without conviction.   The discharged offences included three offences involving violence and one involving dishonesty.

[7]      The Judge referred to the restorative justice process and the views of the appellant’s victim.  He knew the appellant had paid $1,750 compensation voluntarily

to the victim.  He noted the appellant had completed a Man Alive Living Without

Violence programme and a course relating to drug and alcohol addiction.

[8]      The appellant’s counsel had sought a discharge under s 106.   The Judge indicated he would have accepted that submission but for the fact that the appellant had already had the indulgence of a s 106 discharge in respect of five previous offences.  He considered that, “against the background of previous leniency shown by the  Court  …  to  grant  a  further  discharge  …  would  bring into  question  the integrity of the Court system”.

[9]      The Judge referred to the amended summary of facts to which the appellant pleaded guilty, which described the appellant’s assault of another young person, included knocking him to the ground, and assaulting him on the ground, to the extent he was concussed and needed hospital attention.

[10]     The Judge, having declined to grant a s 106 discharge, further indicated that, but for the restorative justice process and the steps taken by the appellant, he would have imposed a significant term of community work.   He instead convicted the appellant and imposed the order to come up for sentence if called upon within 12 months.

Discussion

[11]     The appellant prepared and presented very full and detailed submissions. The reasons he advanced for leave to appeal out of time were essentially the same as those advanced for quashing his conviction and discharging him under s 106.

[12]     I intend no disrespect to the appellant’s submissions by not setting them out in great detail.  The main points were:

•There was new evidence.  (This was a reference to two affidavits supplied by bystanders or witnesses to the assault for which he was convicted who suggested that the appellant was also an assault victim).

•Various mitigating circumstances surrounding both the assault and aspects of the other offences for which he had been discharged.

•Unlike his victim, the appellant had to incur expensive dental treatment in respect of a tooth lost as a result of the fracas.

•The appellant was unaware, in the wake of his conviction, that he had a right of appeal.

•The Judge had misunderstood, in a temporal sense, the date of a previous discharge, mistakenly believing the discharge (in September 2004) related to an offence which antedated the courses which the appellant had completed.

•Adverse consequences flowing from the conviction, and in particular the appellant’s inability to obtain working visas in both Japan and the United States, and to a slightly lesser extent the United Kingdom, Thailand, and South  Korea.     This  aspect  was  of  primary  concern  to  the  appellant, particularly because of his longstanding interest in Japanese language and culture.

•The appellant’s obligation to disclose his conviction up to August 2012, when the Criminal Records (Clean Slate) Act 2004 would absolve him.

•    Heavily emphasised, the appellant’s exemplary conduct since August 2004.

He  has  kept  out  of  trouble,  and  has  graduated  from  the  University  of

Auckland.

[13]     The appellant referred me to the case law relating to s 106 discharges.   He submitted his offending was a brief lapse of judgment; that the long term consequences of the conviction were disproportionate; that his ineligibility to obtain visas  for  Japan,  Thailand,  and  the  United  States  were  matters  of  considerable concern; and that there was minimal public interest in maintaining the conviction. The appellant referred to his rehabilitative efforts in 2003/2004 and his excellent

record since then.   He submitted that his conviction was “redundant in showing a propensity to violent behaviour”.

[14]     Ms Singh, for the respondent, opposed granting leave.  The appellant carried the onus of establishing special circumstances for granting leave.  None existed here. The conviction and sentence were entirely appropriate.   There had been no miscarriage of justice.   The appellant in 2004 had been represented by competent counsel.  In any event there were no substantive grounds on which an appeal against sentence could be based.  Adverse career and travel consequences were frequently advanced as a ground for granting a s 106 discharge.  It could not be argued that the consequences of the conviction were disproportionate.   Certainly that was not the case in August 2005.  Nor was it the case today.

[15]     Nor, submitted Ms Singh, could it be argued, given the factual matrix and the agreed  summary of facts to  which  the  appellant  had  pleaded  guilty,  that  Judge Mahony’s sentence was clearly excessive.

Result

[16]     Although  the  appellant  has  done  the  best  he  can  in  presenting  his submissions,  his  inability  to  engage  competent  legal  advice  has  led  to  some unrealism.

[17]     The vantage point from which any of the appellant’s grounds for appeal must be assessed is during the 28 day period (the normal appeal period stipulated by s 116 of the Summary Proceedings Act 1957) following the imposition of Judge Mahony’s sentence in August 2005.

[18]     The appellant’s assessment of his situation four and a half years on and current immigration consequences are of little relevance.

[19]     On that latter aspect, were the appellant to have some firm employment prospect essential to his career advancement in either Japan or the United States, then a specific immigration application, effort, and advocacy to obtain the requisite

visa, would undoubtedly be necessary.   But that is not the situation in which the appellant currently finds himself.

[20]     I am not persuaded the appellant’s ignorance in August 2005 that he had a right of appeal has any force or relevance.  Certainly his attempt to obtain a sixth s 106 discharge failed.  But any appeal from Judge Mahony’s refusal to grant him such a discharge would, in my view, be doomed to fail.  The appellant was visited with a lenient sentence.  The conviction was appropriately imposed.  Any argument on appeal that Judge Mahony’s sentence was clearly excessive could not have succeeded.

[21]     The criminal justice system, as it relates to the appellant, is not geared to permit him to unwind the past and to avoid certain inconvenient (and in his case minor) consequences of his tempestuous youth.

[22]     There are no compelling or special circumstances why the appellant should be granted leave to appeal four and a half years out of time.  Nor, in my view, would the substantive appeal have any prospect of success.

[23]     For these reasons, the application for leave is dismissed and, as is apparent from this judgment, the substantive appeal would also have been dismissed.

.......................................… Priestley J