Charpan v Police
[2023] NZHC 3510
•5 December 2023
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2023-442-06
[2023] NZHC 3510
BETWEEN GRIGORI CHARPAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 October 2023 Appearances:
R W Ord for the Appellant
J M Webber for the Respondent
Judgment:
5 December 2023
JUDGMENT OF PALMER J
Solicitors
R W Ord, Barrister, Nelson O’Donoghue Webber, Nelson
CHARPAN v NEW ZEALAND POLICE [2023] NZHC 3510 [5 December 2023]
What happened?
The puppy
[1] On 11 October 2021, Mr Grigori Charpan, aged 54, took his son to a violin lesson in central Nelson. A new puppy at a neighbouring house began to bark and ran to the edge of the driveway before its owner, the complainant, called it back. Mr Charpan got angry. The complainant apologised. Five minutes later the complainant and her puppy went to get something out of a car. She saw Mr Charpan again and asked whether his son would like to meet the puppy. Mr Charpan got angry again. He threatened to kill the puppy, saying something to the effect that he had a “knife to kill dogs” and flicked open a knife he pulled from his pocket. The complainant ran back into the house, took a photo of Mr Charpan’s car, hid under her table, and called the Police later that night. She has required mental health care after the incident and moved her dog away for fear for its safety. Mr Charpan was charged with intimidation and possession of an offensive weapon.1
The knife
[2] On 14 October 2021, in the course of executing a search warrant, two police officers talked to Mr Charpan in an Intermediate School carpark in Richmond. They noticed he had a metal clip likely to hold a knife. Mr Charpan got angry and aggressive, insulting them and then threw a closed pocketknife towards the feet of one of the officers. Mr Charpan was charged within possession of a knife without a reasonable excuse.2
The trial
[3] On 16 February 2023, Mr Charpan represented himself in a judge-alone trial in the District Court at Nelson. Mr Charpan’s case was that:
(a)The puppy was jumping up trying to attack his son and Mr Charpan was calm and polite. The knife belonged to his son, and he said he
Summary Offences Act 1981, s 21(1)(a): maximum penalty of three months’ imprisonment or a
$2,000 fine; and Crimes Act 1961, s 202A(4)(a): maximum penalty of three years’ imprisonment.
2 Summary Offences Act, s 13A. Maximum penalty of three months’ imprisonment or a $2,000 fine. The Court may also order the knife be forfeited.
would have to use it if the dog attacked his son. The complainant was mentally ill, on medication, and her husband had left her.
(b)The Police ambushed him on 14 October 2021. He was not abusive, though he admitted calling them “bastards” and “assholes”. The male police officer had tattoos and the female officer was wearing trousers, so less weight should be placed on their evidence. The knife he had on that occasion was his gardening knife with which he liked to sharpen pencils. It was his human right to carry to a knife.
[4] Mr Charpan was found guilty of the three charges and convicted. Judge A A Zohrab noted there was no evidence to support any of Mr Charpan’s allegations against the complainants and his comments about the Police officers were irrelevant.3 He concluded Mr Charpan’s account of events did not make sense and exaggerated what happened with the dog.4 He accepted the complainant’s evidence which was consistent with what she said to the Police.5 The Judge did not accept that the knife in the second incident was a gardening knife as it was not useful for that.6 He accepted the officers’ evidence.7
[5] On 2 May 2023 the Judge sentenced Mr Charpan for these offences and an unrelated driving offence.8 He explained again why he found Mr Charpan guilty.9 He advised Mr Charpan to reflect on his actions in setting an example for his children.10 He was sentenced to 175 hours of community work for each charge, concurrently, and to pay $400 in reparation to the complainant. The Judge ordered destruction of the two knives. He ordered the words “final warning” be placed on Mr Charpan’s record, so that if Mr Charpan is in possession of a knife in a public place again a prison sentence will be imposed.11
3 New Zealand Police v Charpan [2023] NZDC 2876 [DC Judgment] at [57].
4 At [65] and [68].
5 At [61].
6 At [74].
7 At [73]–[74].
8 New Zealand Police v Charpan [2023] NZDC 8758 [Sentencing decision].
9 At [7]–[13].
10 At [16].
11 At [18].
The appeal
[6] Mr Charpan appeals his conviction and the failure to discharge him without conviction. His three grounds of appeal are that he had defences to the charges of possession of an offensive weapon and possession of a knife without reasonable excuse, and that he was not given the opportunity to apply for a discharge without conviction.
The test
[7] Under s 232(2) of the Criminal Procedure Act 2011, relevantly, I must allow an appeal of the conviction if I am satisfied the Judge erred in their assessment of the evidence to such an extent a miscarriage of justice occurred or that a miscarriage of justice occurred for any reason. A miscarriage of justice, as defined under s 232(4), is:
any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[8] There is a “real risk” the outcome was affected when there is a reasonable possibility a more favourable verdict, such as not guilty, might have been delivered if nothing went wrong.12 An appellant must establish there was a real possibility the verdict was unsafe.13
[9] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence, which I explain further below.14
The evidence
[10] Mr Charpan applies to adduce additional evidence on appeal. The test is whether it is fresh, credible, and cogent.15 The evidence is:
12 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
13 At [110].
14 Jackson v R [2016] NZCA 627 at [15]–[16].
15 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
(a)Initially, an unsworn affidavit from a neighbour of the complainant, the music teacher, who was not prepared to give evidence in the District Court. However, it turned out that neither was she prepared to swear the affidavit so this application was abandoned. I would have declined it in any case. The evidence is not fresh and is not cogent.
(b)An unsworn affidavit from Mr Charpan. Most of this is not fresh either. It repeats much of his evidence at trial. The paragraphs in which Mr Charpan explains the likely consequences of conviction are fresh and relevant to the ground of appeal about discharge. I admit those paragraphs only as evidence on appeal.
(c)A report prepared by Dr Jarrod Gilbert about Mr Charpan’s personal background, under s 27 of the Sentencing Act 2002. Mr Ord, for Mr Charpan, submits this gives a more measured response that what was said by a vehement and stubborn man. But this could have been obtained before the sentencing, as Mr Ord acknowledged. The Court of Appeal has repeatedly warned against admitting s 27 reports on appeal when they could have been produced before sentencing.16 It is not particularly relevant to the issues on appeal. Most of it deals with background matters addressed in the trial and expands on Mr Charpan’s attitudes displayed at trial. I decline the application to adduce it on appeal.
Issue 1: Defence to possession of an offensive weapon
[11] Mr Ord, for Mr Charpan, submits that Mr Charpan has a defence to the possession of an offensive weapon charge under s 202A(5) of the Crimes Act 1961, which states:
(5) It is a defence to a charge under subsection (4)(b) if the person charged proves that he or she did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
16 Greening v R [2023] NZSC 432 at [18]–[19] citing Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [174]; Laipato v R [2021] NZCA 562 at [13]; Clarke v R [2021] NZCA at [14]; and Carroll v R [2019] NZCA 172 at [8].
[12] Mr Ord submits that, under s 57 of the Dog Control Act 1996, Mr Charpan would have been entitled to destroy the dog if the dog had attacked his son. Because the threat to kill the dog was conditional on that, it is clear Mr Charpan did not intend to use the knife to commit an offence. There was no attempt to do anything. And, if Mr Charpan did kill the dog in defence it would not have been an offence pursuant to s 57 of the Dog Control Act.
[13] However, as Mr Webber submits for the Police, s 57(1) of the Dog Control Act does not empower a person to carry a knife to destroy a dog or to emphasise to its owner an intention to destroy a dog. It empowers a person to seize or destroy a dog, for the purpose of stopping an attack, if they are attacked or witness the dog attacking any other person. That makes no difference here because the puppy did not attack anyone when the knife was produced. The Judge properly rejected this defence at trial. His acceptance of the complainant’s evidence of what happened, over that of Mr Charpan, is well founded and reasonable.
[14] Mr Charpan was also convicted of intimidation in this incident, which he does not appeal. Mr Ord accepted at the hearing of the appeal that means Mr Charpan would have to find some way of showing he did not intend to use force and suggests that, as a former Latvian soldier, he would not reasonably have known the complainant would be likely to be intimidated. But that is not a ground of appeal and is not credible on the basis of the facts. As Mr Webber submits, and the Judge found,17 the only rational conclusion was that Mr Charpan opened his knife to reinforce his threat and knew his conduct was likely to intimidate the complainant. I dismiss this ground of appeal.
Issue 2: Defence of reasonable excuse for possession of a knife
[15] Mr Ord submits that the knife in Mr Charpan’s possession when he spoke to Police was used as a gardening tool. There is no evidence he did not have it as a gardening tool. Therefore, there was a reasonable excuse for carrying it. Mr Ord also says the wrong knife was confiscated from Mr Charpan for the purpose of destruction. He wants it back.
17 DC Judgment, above n 3, at [71]–[72].
[16] However, as Mr Webber submits, Mr Charpan’s explanation on appeal is inconsistent with his defence at trial that it was his human right to carry a knife. Furthermore, the Judge rejected the proposition that the knife was a sort used for gardening. There is nothing in this point. And there is nothing before me about which knife was confiscated. I dismiss this ground of appeal.
Issue 3: Opportunity to apply for a discharge without conviction
[17] In relation to the possibility of a discharge without conviction, I must allow the appeal if satisfied a miscarriage of justice has occurred by virtue of a material error in entering the conviction or in applying s 107 of the Sentencing Act 2002.18 Otherwise, I must dismiss the appeal.
[18] Section 107 of the Sentencing Act requires that the Court must not discharge an offender without conviction “unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. This involves establishing the gravity of the offending, the consequences of conviction, and whether the latter are out of all proportion to the former.19 It remains open to the Court to decline to exercise its discretion to grant a discharge even if that test is satisfied.20
[19] Mr Ord submits that the only aggravating factor here was threatened violence or threatened use of a weapon, which is already accounted for in the charges. Because of Mr Charpan’s cultural background from Latvia, he has misunderstood the circumstances. He is concerned he will not be able to continue home schooling and help with community services and may have a problem if he goes back to Australian and attempts to gain employment. If he tries to become a teacher again, there is a real risk he will not be considered “fit and proper”. He now expresses remorse, in that he did not appeal the reparation order, and he is of previous good character. Mr Ord appeared to submit that perhaps the Court could discharge Mr Charpan without conviction and impose supervision on him.
18 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
19 See Z (CA447/12) v R [2012] NZCA 599 at [27]–[28].
20 At [27].
[20] A Court cannot impose a sentence without a conviction so Mr Ord’s last point is unhelpful. In relation to the other points, Mr Charpan has lived in New Zealand since 1996. There is little to indicate his remorse for the effect of his offending on the complainant. He cannot rely on previous good character because he has convictions for driving offences.
[21] The violence and threats involved in the offending, and the effect on the complainant, illustrates that it was moderately serious. There is not a real or appreciable risk of the consequences of conviction he is concerned about, and they do not appear particularly serious. The travel consequences are speculative. There is no evidence of the attitude of Australian immigration authorities to these sorts of convictions. The impact on home schooling is also unsupported by evidence. The nature of the convictions suggests that it would be appropriate for relevant authorities to be informed of them in any case.
[22] The consequences of conviction are not out of all proportion to the offending. There is no basis for a discharge without conviction.
Result
[23]The appeal is dismissed.
Palmer J
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