C v Police HC Tauranga CRI 2006-470-17

[2006] NZHC 735

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2006-470-000017

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 June 2006

Appearances: Appellant in Person

Mr S Bridges for Crown

Judgment:      29 June 2006

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Ronayne Hollister-Jones Lellman, PO Box 13063, Tauranga

Copy to:             Mr I M C  , 2 Maitland Street, Greerton, Tauranga

C V NEW ZEALAND POLICE HC TAU CRI 2006-470-000017  29 June 2006

[1]      On 29 March 2006 at the District Court at Tauranga the appellant Mr C   pleaded guilty through counsel to one charge of Crimes Act assault on his stepfather. He was convicted and sentenced to 150 hours community work.

[2]      Mr C   has lodged an appeal against that conviction and sentence.  The grounds of the appeal as set out in the notice of appeal are:

(1) My lawyer gave my case to  his  mate.    Chris Tennet  to  Nicholas

Dutch.  Nicholas Dutch knows nothing of me.

(2) Pushed pressured into a guilty plea of common assault.

(3) Have letter of complaint that states I did not lay a hand on him.

(4) Community work sentence was complete. No hours left at 29 March

06.

(5) Clear police assault on myself at arrest time.  And over charge. (6) Currently try to hold a job down.

[3]      Given the first two grounds of appeal it appeared to the Crown and to the Court that Mr C   wished to challenge the advice given and the guilty plea entered.

[4]      I have explained to Mr C   the difficulties in relation to that course of action.  Section 42 of the Summary Proceedings Act 1957 does not apply.  There is no ability to vacate a plea of guilty after sentence because s 42 only applies prior to sentence.   Nor can the appellant rely on s 169 of the Summary Proceedings Act either as that section relates only to the preliminary hearing of indictable offences. This charge was laid summarily.

[5]      While  s  115  of the  Summary  Proceedings  Act  might  support  an  appeal despite a plea of guilty the circumstances need to be “exceptional” as discussed in the Court of Appeal decision of Church v Police (CA 364/01, 15 July 2002).

[6]      I explained to Mr C   that if he wished to pursue the appeal on the grounds of counsel’s failure to give proper advice or on the basis of a challenge to counsel’s actions then he would need to waive privilege and the appeal hearing today would  have  to  be  adjourned  and  an  affidavit  obtained  from  the  lawyer  that represented him.

[7]      Mr C   has said he wants to get on with his life, that he has come from Tauranga to Rotorua today for the hearing of this appeal and wants the matter dealt with.  He submitted there were exceptional circumstances in his case.  He noted the assault was on his stepfather.  He put before the Court a complaint that he had laid with the police in relation to an assault on him by his stepfather in November 2005, some two months before the charge in issue.  He also put before the Court a letter from his mother to confirm that the relations  in the  family had  improved.    Mr C   also said he is now getting on with his life.  Mr C   also said that the conviction has caused him difficulty with access to children.

[8]      I have regard to those matters but as I indicated to Mr C   they are not exceptional circumstances of the kind that he would be required for this appeal to be granted.  I have asked Mr C   on a number of occasions whether he wishes for the appeal hearing today to be adjourned with privilege waived to enable an affidavit to be obtained from the lawyer so that the aspect of the appeal can be pursued.  He has said he does not want to do so.

[9]      I note that in relation to Mr C  ’s submission the police overcharged him that initially the offence charged was for assault with a weapon which carried a maximum sentence of five years’ imprisonment.  That was amended when the guilty plea was entered to a common assault under s 196 carrying the maximum sentence of one year.   It seems to that extent at least the lawyer representing him on the day achieved some positive outcome for Mr C  .

[10]     As I advised Mr C   there are no exceptional circumstances disclosed. Mr C   wants the matter dealt with today.   In the circumstances the appeal against conviction must be and is dismissed.

[11]     The appeal also related to sentence.   I note the sentence was for 150 hours community work.   I note that Mr C   has previous convictions for common assault, resisting police and disorderly behaviour.  In the circumstances the sentence was well within the range available to the sentencing Judge.   The appeal against sentence is also dismissed.

[12]     The appeals are dismissed.

Venning J