Cerda v Police - [2018] NZHC 2574

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-235 [2018] NZHC 2574

BETWEEN
CAMILO PUGA CERDA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 October 2018

Appearances:

Appellant in person
M Mortimer for Respondent

Judgment:

2 October 2018

JUDGMENT OF LANG J

[on appeal against refusal to grant discharge without conviction]

Thisjudgment was delivered by me on 2 October 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CERDA v NEW ZEALAND POLICE [2018] NZHC 2574 [2 October 2018]

[1] Mr Cerda pleaded guilty in the District Court to two charges of common assault.1 One of these related to an assault on his wife and the other related to an assault on his wife’s current partner. On 12 July 2018, Judge Jelas declined to make an order under s 106 of the Sentencing Act 2002 (the Act) discharging him without conviction.2 On the same date she sentenced Mr Cerda to 60 hours community work on both charges and made a protection order in favour of Mr Cerda’s wife.

[2] Mr Cerda appeals against the Judge’s decision declining to discharge him without conviction.

The offending

[3] The charges were laid after an incident that occurred on 3 December 2016. At about 11 pm on that date Mr Cerda went to the address occupied by his wife. He and his wife had terminated their relationship approximately three months earlier after seven years of marriage.

[4] Mr Cerda banged on the front door of the property and demanded to be let inside. When there was no response, he went to the rear of the property and climbed onto an upstairs balcony. By this means he gained access to the upstairs hallway area of the address through an unlocked door.

[5] Whilst in the hallway Mr Cerda encountered his wife, who had come to investigate noises she had heard coming from the area where Mr Cerda had entered the property. Mr Cerda then pushed his wife, causing her to fall backwards into the frame of a doorway. He then entered a bedroom, where he discovered his wife’s current partner. Mr Cerda punched this person four to six times in the face with his fist. When his wife endeavoured to intervene, Mr Cerda twisted her right arm backwards. She then ran out of the house to a neighbouring address where she alerted the police.

[6] By way of explanation Mr Cerda told the police he had become angry when he arrived at the address to talk to his wife and noticed another person’s car in the

1 Crimes Act 1961, s 196.
2 New Zealand Police v Cerda [2018] NZDC 14183.

driveway. He acknowledged he had climbed into the house and punched his wife’s new partner.

[7] As a result of the incident Mr Cerda’s wife sustained a sore right shoulder, whilst her new partner suffered swelling, bruising and bleeding to his forehead.

Relevant principles

[8] An application…

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 Cerda v Police

Details

AGLC: Cerda v Police [2018] NZHC 2574
Case: [2018] NZHC 2574
Decision Date: 2 October 2018

CaseChat Overview and Summary

In this case, Camilo Puga Cerda appealed against the District Court's refusal to grant him a discharge without conviction. Mr Cerda pleaded guilty to two charges of assault, one against his wife and the other against his wife's current partner. The offending occurred after Mr Cerda unlawfully entered his former wife's residence, assaulted her and her partner, and caused physical injury to both victims. The District Court Judge declined to discharge Mr Cerda without conviction and sentenced him to 60 hours of community work and issued a protection order against him. Mr Cerda appealed the decision on the basis that a conviction would have severe consequences for him personally and professionally.

The legal issue before the court was whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. The court had to consider the aggravating and mitigating factors of the offending and determine whether the consequences of a conviction would be disproportionate to the overall culpability of the offending.

The court concluded that the overall gravity of the offending was moderately serious, while the likely consequences of a conviction were low. The court accepted that Mr Cerda's offending had significant aggravating features, such as the unlawful entry into a dwelling house, the infliction of violence on two separate victims, and the fact that the violence occurred in a domestic context. However, the court also took into account mitigating factors, such as Mr Cerda's lack of previous and subsequent convictions, his guilty pleas, and his completion of the Man Alive programme.

The court held that Mr Cerda's career and lifestyle would likely not be significantly affected by the convictions, as his employer remained supportive of him, and there was little prospect that his convictions would affect any application he might make for registration as a member of the New Zealand Plumbers, Drainlayers and Gasfitters Association. The court also found that the convictions were unlikely to prevent Mr Cerda from travelling to Bali or Australia, but may require him to undertake a different process in order to be able to travel to those countries. Therefore, the court concluded that Mr Cerda could not meet the statutory threshold of demonstrating that the likely consequences of the convictions would be out of all proportion to the overall gravity of the offending.

The appeal was dismissed.

Orders