Cable v Police HC Wang CRI 2009-483-32

[2010] NZHC 38

IN THE HIGH COURT OF NEW ZEALAND

WANGANUI REGISTRY

CRI-2009-483-32

ALEXANDER DUNCAN CABLE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 February 2010

Counsel:         M J Bullock for appellant

J M Woodcock for respondent

Judgment:      5 February 2010

RESERVED JUDGMENT OF DOBSON J

[1]      This is an appeal against conviction, and an application for leave to appeal

out of time against sentence, in relation to a conviction entered against the appellant

(Mr Cable) in the Wanganui District Court on 5 August 2009.

Appeal against conviction

[2]      The charge arose out of a dispute between neighbours. In the course of developing a Wanganui residential property,  Mr  Cable  erected  a  fence  of  some

1.8 metres high out  of  horizontally  corrugated  metal. The  structure  was  entirely

CABLE V NEW ZEALAND POLICE HC WANG CRI-2009-483-32  5 February 2010

legal.   His neighbour, the complainant, Mr Holly, whom I infer to be substantially younger than Mr Cable (who was 61 years old at the time), apparently believed that the 1.8 metre high fence did not adequately protect his privacy.  Ostensibly to further protect his privacy, Mr Holly had tacked lengths of black polythene shade cloth to sticks which were then attached to the poles on Mr Cable’s fence, so as to protrude above it.  Mr Cable knocked the addition to the fence down on Mr Holly’s side and an altercation ensued.

[3]      Mr Cable was holding a length  of  wood  which  he  described  as  some

1.8 metres long.  He struck the top of the fence with it, from a position he estimated

as some 1.5 metres away from the fence.  Mr Holly thought that the wood struck the fence  directly  in  line  between  him  and  Mr  Cable,  causing  him  to  have  to  jump backwards to avoid being hit by the wood.  In contrast, Mr Cable described striking the fence approximately 18 inches to one side of the line between the two of them. The District Court Judge was inclined to accept Mr Cable’s recollection of the point of impact.  On Mr Cable’s version, only a small part at the end of the length of wood would have protruded over the fence when it hit the top of it.

[4]      Mr Cable  appeals from  the finding that these  facts were sufficient to  make out  a  charge  under  s 202C  of  the  Crimes  Act  1961  (the  Act)  for  assault  with  a weapon.  The two grounds of appeal are:

·first, that the Judge was wrong to conclude on the evidence that there was an assault, and

·secondly, that if the Judge was right in concluding that there was an assault then  the  defence  of  self-defence  was  raised  and  had  not  been  adequately negated by the prosecution to the requisite standard.

[5]      Section 2 of the Act defines assault in the following terms:

The act of intentionally applying or attempting to apply force to the person

of  another,  directly  or  indirectly,  or  threatening  by  any  act  or  gesture  to apply  such  force  to  the  person  of  another,  if  the  person  making  the  threat has, or causes the other to believe on reasonable grounds that he has, present ability to affect his purpose; and to assault has a corresponding meaning.

[6]      The phrase “threatening by any act or gesture” was considered by the Court

of Appeal in R v Kerr,[1]  where the following observations were made:

...although there is implicit in a number of dictionary meanings of “threat” or

“threatening” the notion that fear will be induced in the mind of the person

to  whom the  threat  is  addressed  as  is the  case  in  a  threat  to  kill  (Police  v Lloyd [1973] 2 NZLR 486; R v Meek [1981] 1 NZLR 499, a threat does not necessarily require to be communicated to the victim. Other meanings of “threaten” are “to menace”, “to be a source of danger to” or “to declare ones intention of inflicting injury upon”: Oxford English Dictionary. In our view an assault for the purposes of the Crimes Act 1961 is committed when one person by a threatening act or gesture displays hostility towards another even though the person at whom the threatening act or gesture is directed is unaware that it is being made provided always that the threatener has the present ability to effect his purpose. It is the aggressive conduct at which the legislation strikes. The mens rea is the intention to do the threatening act; the actus reus is the doing of it.

[1] R v Kerr [1988] 1 NZLR 270 at 274.

[7]      I  agree  with  the  District  Court  Judge  that  on  this  breadth  of  threatening conduct that comes within the definition of assault, Mr Cable’s use of the piece of wood amounted to threatening conduct that can constitute an assault.

[8]      The  other  element  required  to  be  established  by  the  prosecution  was  the ability  of  Mr Cable  to  carry  out  the  threat  of  violence,  or  that  the  threat  was conveyed  in  circumstances  that  would  cause  Mr Holly  reasonably  to  believe  that Mr Cable  had  the  present  ability  to  carry  out  the  threat. The  Judge’s  reasoning suggests that he may have   been influenced by Mr Holly’s evidence of his apprehension  of  the  prospect  that  Mr Cable  had  the  ability,  and  an  intention,  to actually go on and assault Mr Holly.

[9]      Although the Judge appears to have had some measure of sympathy for the predicament  Mr Cable  was  in,  he  found  this  element  of  the  charge  made  out.   On appeal, Mr Bullock was not able to press a tenable challenge on this ground. The protagonists were separated by a secure fence so that they could only see the heads, and possibly the top of each other’s bodies, when confronting each other across the fence. There was some suggestion that at some point Mr Cable could see more of Mr Holly because the latter was standing on a structure, likely to be a dog kennel. However, that was some distance back from the fence and both would have to be on the ground when adjacent to their respective sides of the fence.

[10]     Although the fence could possibly have been scaled by either protagonist, it does seem unlikely that the vast majority of 61 year olds would be spritely enough to leap over the corrugated metal fence shown in the photographs.  The fence appears

to have been at about chin height on Mr Cable, so it is unlikely that he could scale it,

at least without a period where he would leave himself vulnerable to Mr Holly in the context of any physical confrontation.

[11]     Mr Cable described his thumping the piece of wood on the top of the fence as intended to convey the message that Mr Holly should break off the confrontation and leave   the   immediate   vicinity.           Thus,   it   was   primarily  intended   to   bring   the confrontation to an end.   If that message was indeed conveyed by the way in which the fence was struck, then it would be inconsistent with conveying a threat in terms implying the prospect of actual assault thereafter.

[12]         However, this analysis of the context overlooks the significance of the use of the length of wood as a weapon, and the full measure of the threat conveyed by the way it was used.  In the context of the confrontation, wielding a substantial piece of wood almost two metres long and using it to strike the top of the fence with some force,  would  readily  convey  an  intention  to  do  more  with  it.   On  a  review  of  the totality of the evidence, I am not persuaded that the Judge was wrong in attributing to Mr Cable the requisite intention that the use of the piece of wood would carry with it the threat of a subsequent attack on Mr Holly, using the length of wood.

[13]     The second ground argued on the appeal against conviction is that the Judge wrongly  failed  to  recognise  and  consider  the  prospect  of  self-defence. Before anything in the nature of an evidential burden arises for the prosecution to deal with a  defence,  it  must  have  been  made  a  genuinely  live  issue  by  the  defence. As commented in Adams on Criminal Law:[2]

This evidential burden means the accused needs to point to evidence which could lead the jury to entertain a reasonable possibility of the existence of the  defence: R v Matoka  [1987] 1 NZLR 340 (CA), at p 344; R  v  Tavete

[1988] 1 NZLR 428; (1987) 2 CRNZ 579 (CA), a p 430; p 581. This evidential burden resting on the accused does not amount to a burden of proof. It is merely a burden to be able to point to sufficient evidence to raise the issue.

[2] Bruce Robertson (ed) Adams on Criminal Law - Evidence (looseleaf ed, Brookers) at [ED1.02].

[14]     In regard to self-defence, that evidentiary burden will be met where “there is

a credible or plausible narrative  which might lead the [fact-finder] to entertain the reasonable possibility of self-defence”[3].

[3] R v Tavete [1988] 1 NZLR 428 (CA).

[15]     There   was   a   suggestion   in   the   evidence   that   at   some   point   Mr Holly threatened to go over to Mr Cable’s property, and assault him.   The Judge did not determine whether that threat was made before or after Mr Cable used the piece of wood on the  fence. There  was no  clear  evidence that  conduct on  Mr Holly’s part caused Mr Cable to fear  that he was going to be  assaulted. That lack of evidence creates a difficulty in now arguing that the defence of self-defence was sufficiently raised for the prosecution to have to deal with it.

[16]     Even if there was evidence of grounds for Mr Cable to reasonably perceive the threat of an assault as being in prospect, then the level of force used would still have to be commensurate or reasonable.  The prospect of an assault by Mr Holly was certainly not imminent, when the stand-off occurred with the protagonists  on opposite sides of a solid fence which was 1.8 metres high and not readily scalable. Just as the prospect of Mr Cable getting over the fence with sufficient ease to pursue

an  assault  on  Mr Holly  is  somewhat  remote,  so  too  if  Mr  Holly  were  to  pursue Mr Cable.   The  time  taken  to  get  over  the  fence,  and  the  measure  of  difficulty in doing so, would likely afford Mr Cable an opportunity of either quitting the scene, or resisting  a  threatened  attack  on  him  by  pushing  Mr Holly  off  the  fence  as  he attempted to get across the top of it.

[17]     The law is relatively reluctant to  recognise  anything  in  the  nature  of  a

pre-emptive strike as constituting self-defence – R v Terewi[4]  acknowledges that the law does not recognise a general right of pre-emptive attack in self-defence.  Further,

[4] R v Terewi (1985) 1 CRNZ 623 (CA).

in R v Wang[5]  the Court of Appeal observed:

[5] R v Wang [1990] 2 NZLR 529 (CA) at 542.

...what  is reasonable force to use to  protect  oneself or  another when faced with   a   threat   of   physical   force   must   depend   on   the   imminence   and seriousness  of  the  threat  and  the  opportunity  to  seek  protection  without recourse  to  the  use  of  force.   There  may  well  be  a  number  of  alternative courses of action open, other than the use of force, to a person subjected to a

.

threat  which  cannot  be  carried  out  immediately.     If  so,  it  would  not  be reasonable to make a pre-emptive strike.

[18]     Those observations are  pertinent here.   There  were alternatives available  to Mr Cable beyond advancing a threat of use of a weapon against Mr Holly.  I am not persuaded that the defence of self-defence was one which the Judge was required to consider.

[19]     Accordingly,  I  am  not  satisfied  that  either  of  the  grounds  on  which  the conviction  is  challenged  can  be  upheld,  and  the  appeal  against  conviction  is dismissed.

Appeal against sentence

[20]     Having found the charge proven but that there was no need for a penalty, the

Judge’s decision simply records:

I convict and discharge you so there is no penalty at all.  That is a conviction for assault with a weapon.

[21]     Mr Cable now wishes to argue that he should have been discharged without conviction.

[22]     The appeal against sentence is brought out of time, and accordingly requires leave under s 123 of the Summary Proceedings Act 1957.  It is fairly acknowledged

on behalf of the Police that there is no prejudice to it as respondent from the delay in pursing  this  second aspect of  the appeal. I was accordingly inclined to hear argument on the appeal against sentence, enabling me to take into account the merits

of the substantive arguments before determining whether leave ought to be granted.

[23]     The entry of a conviction on terms where the Court has declined to discharge without  conviction,  but  convicts  and  discharges  the  defendant,  is  appropriately treated as an appeal against sentence: see Nash v New Zealand Police[6]  and the earlier authorities referred to at [8] of that judgment.

[6] Nash v New Zealand Police HC Wellington CRI-2009-485-000007, 22 May 2009.

[24]     In an affidavit in support of his appeal sworn on 20 January 2010, Mr Cable deposes that his lawyer asked for a discharge without conviction, but that before any submissions could be made the Judge said he would not do that and said he would be entering a conviction.

[25]     Under s 119 of the Summary Proceedings  Act,   the   Court   has   a   full discretionary power to hear and receive further evidence  if  it  could  not,  in  the circumstances, have reasonably been adduced at the hearing.  Given that the Judge apparently declined to hear submissions in   support   of   a   discharge   without conviction, this constitutes one circumstance in which  such  evidence  could  not reasonably have been adduced at the hearing.  Mr Bullock fairly acknowledges that

his instructions at the hearing did not extend to raising the adverse consequences of a conviction  that  he  now  seeks  to  argue.  He  suggests  that  his  preferred  course  of requesting  an  adjournment  after  the  District  Court’s  finding  that  the  charge  was proven, was probably not tenable.

[26]     However, in present circumstances I am satisfied that the interests of justice support consideration of the affidavit.

[27]     It is appropriate to have regard to the factual aspects of Mr Cable’s affidavit,

at least to the extent that it addresses the factual circumstances in which the hearing occurred, and the factual matters as to the consequences of entry of a conviction.

[28]     Section  11  of  the  Sentencing  Act  2002  requires  a  sentencing  Court,  before entering  a  conviction  and  imposing  a  sentence,  to  consider  whether  the  offender would   be   more   appropriately  dealt   with   by  discharging  the   offender   without conviction  under  s 106,  and  other  alternatives  to  the  imposition  of  a  specific sentence. There   will   be   many   cases   in   which   the   absence   of   any   explicit acknowledgement of that consideration by the sentencing Judge is readily explicable. However,  where  a  defendant’s  counsel  seeks  to  raise  the  prospect  of  a  discharge without  conviction  and  where  the  facts  giving  rise  to  a  finding  that  a  charge  of assault with a weapon  was made out arose in circumstances substantially different from the gravity generally conveyed by a conviction for that offence, an expectation does arise that such an outcome would be explicitly considered.  Here, it was not.

[29]     The approach to consideration of discharge without conviction has recently been  reconsidered  by  the  Court  of  Appeal  in  R  v  Hughes.[7] The  “gateway” requirement in s 107 of  the Sentencing Act must be satisfied before the  Court can exercise   the   discretion   under   s 106   to   discharge   without   conviction. That requirement is for the Court to be satisfied that the direct and indirect consequences of  a  conviction  would  be  out  of  all  proportion  to  the  gravity  of  the  offence. In Hughes, the Court observed[8]:

[7] R v Hughes [2008] NZCA 546.

[8] Ibid, at [41].

...Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.     Having  taken  account  of  those  factors,  the  Judge  must  determine whether  the  s 107  test  is  met  and  whether  it  is  appropriate  that  he  or  she makes an order under s 106 to deal with the offender.

The gravity of the offending

[30]     There will be cases in which  this  consideration  appropriately embraces  the Court’s subsequent assessment of overall     culpability, going beyond the circumstances   of the offending itself. Here, a spirited altercation between neighbours, resolved  without any physical damage  and with the defendant being a 61 year  old  confronting  his  neighbour  over  a  relatively  high  fence,  constitutes  a scenario  at  the  very  least  serious  end  of  the  continuum  of  situations  in  which  a conviction  for  assault  with  a  weapon  might  ensue. Had  the  circumstances  been somewhat different, the context of this altercation might have led to a far less serious charge. I  accept  Mr Bullock’s  submission  that  these  circumstances  are  relatively innocuous relative to any “norm” for assault with a weapon, and were relatively less serious by the end of the contested hearing than appeared from the Police case at the outset.

The direct and indirect consequences of conviction

[31]     Mr Cable now deposes that two potentially important sources of work for him  as  a  self-employed  builder,  namely  the  Wanganui  District  Council  and  the Earthquake  Commission,  will  most  likely  exclude  him  from  those  considered  for relevant work if he has to disclose such a conviction.  His affidavit specifies that the Earthquake  Commission  will  not  commit  in  writing  to  this  as  a  formal  stance. However,  I  accept  that  for  practical  purposes,  the  interest  both  those  potential contractors appear to take in the existence of any convictions, when he would always be in a position of competing with other potential providers of building services who do not have a conviction of this type, would seriously impair the prospects of work from such sources.

[32]     Mr Cable also raises the prospect of his firearms licence being revoked on the basis of the conviction.  He deposes that he has had a firearms licence since he was about 16 years of age and has never had any issues arising with the use of firearms. The Police have raised with Mr Cable his fitness to continue having a licence, but have deferred further consideration of revocation pending resolution of this appeal. Mr Cable belongs to the Western Action Shooting Association, which he describes as having international affiliations.  A conviction of this kind would stop him being able  to  travel  to  Australia  or  the  United  States  to  be  involved  in  firearms-related recreational activities.  More generally, he apprehends difficulties in obtaining a visa to enter the United States where he has a sister, whose 70th  birthday party he hopes to attend  in  April  this  year  in  Arizona.  Mr Cable  deposes  that  he  has  no  previous convictions except for one for careless driving in 1995.

[33]     For the respondent, Ms Woodcock was critical of the quality of this evidence. She suggested it was speculative as to the genuine extent of adverse consequences, and fell well short of the standard required to make out substantial disproportion between the extent of adverse consequences and the criminality of what was involved. The evidence could have been stronger. However, given Mr Cable’s circumstances, one can understand a measure of reluctance by Mr Cable  to  draw specific attention to his predicament with those that he hopes to be able to deal with in the future, without having to acknowledge this conviction. I am persuaded by the

evidence  that  the  adverse  consequences  he  is  afraid  of  are  more  than  a  realistic prospect, and are more likely than not to follow from entry of the conviction.

[34]     For a man of his age with his otherwise good record, a conviction for assault with a weapon would constitute a serious blight  on  his  character,  suggesting criminality significantly beyond what was involved on the facts in this case.

Whether the consequences are out of all proportion to the gravity of the offending

[35]     I  am  readily  persuaded  that  the  “gateway”  requirement  in  s 107  of  the Sentencing Act is made out.  I agree with the District Court Judge’s characterisation that  what  Mr Cable  did  was  a  “silly thing”  but  it  did  not  have  anywhere  near  the gravity  that  warrants  a  criminal  record  for  assault  with  a  weapon,  an  offence  for which the maximum penalty is five years’ imprisonment.

Outcome

[36]     I accordingly grant leave to appeal against sentence out of time.   I allow the appeal and substitute by way of outcome under s 106 a discharge without conviction.

Dobson J

Solicitors:

Mark Bullock, Wanganui for appellant
Armstrong Barton, Wanganui for respondent