Cook v Police - [2014] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2013-563-000090 [2014] NZHC 282

NICHOLAS DUNCAN COOK

v

NEW ZEALAND POLICE

Hearing: 25 February 2014

Appearances: T Barclay for the Appellant
A Hill for the Crown

Judgment: 25 February 2014

[ORAL] JUDGMENT OF WYLIE J

COOK v POLICE [2014] NZHC 282 [25 February 2014]

Introduction

[1] The appellant, Mr Cook, appeals against a decision of Judge JF Munro, given in the District Court at Rotorua on 14 November 2013. Judge Munro declined to grant Mr Cook a discharge without conviction in relation to a charge of male assaults female.

Background Facts

[2] Mr Cook and his partner (the victim in this matter) were living together in a domestic relationship. They had been living together for some time and they have one child.

[3] At approximately 3.30 am on 5 June 2013, Mr Cook arrived home. He had been drinking. Mr Cook’s partner woke up to attend to their baby. She found that Mr Cook was home. Her aunty was also present. She went into the room and sat on the couch, talking to her aunty. Mr Cook was squatting by a wall nearby. The partner got up to say goodbye to her aunty, and in doing so, squeezed through the gap between the furniture and Mr Cook. As she went through the gap, Mr Cook lifted his knee and kneed his partner to the left side of her mouth. Mr Cook then stated, “Shouldn’t I just kick you in the head”. The partner did not receive any injuries as a result of the assault.

[4] The offending did not surface promptly. Rather, it came to light some three weeks later, when the police attended at the couple’s property in relation to another incident.

[5] When the offending came to light, Mr Cook cooperated with the police. He accepted that he had assaulted his partner on 5 June 2013 and he promptly entered a guilty plea to the charge. He was referred to Mana Social Services and he went through the restorative justice process. That process was successful. The report from the restorative justice conference records that Mr Cook had little or no recollection of the assault on his partner, but that he accepted that he had been guilty of the offending. He expressed remorse and apologised profusely when he realised what he had done. His partner did not consider that it was necessary for him to

attend any anger management counselling. He promised to never offer violence to her again. She accepted that this promise was sincere and she expressed the view that there is no likelihood that the offending will be repeated. The partner requested that any sentence should not be too harsh and in particular, that Mr Cook should not receive a sentence of imprisonment.

District Court Judge’s Decision

[6] As noted, the matter came before Judge Munro on 14 November 2013. She recorded the background facts and that the restorative justice process had succeeded. She noted that…

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 Cook v Police

Details

AGLC: Cook v Police [2014] NZHC 282
Case: [2014] NZHC 282
Decision Date: 25 February 2014

CaseChat Overview and Summary

The appellant, Mr Cook, appealed against a decision by Judge Munro of the Rotorua District Court, who declined to grant Mr Cook a discharge without conviction for a charge of assault on a female. The case was heard in the High Court of New Zealand, Rotorua Registry. The legal issues centred on the interpretation and application of sections 106 and 107 of the Sentencing Act 2002, particularly whether the consequences of a conviction would be out of proportion to the gravity of Mr Cook's offending. The court had to consider the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences were disproportionate to the seriousness of the offence. After examining the facts, the High Court found that the assault, while serious, was relatively minor and that the consequences of a conviction on Mr Cook's employment prospects were disproportionately severe. The appeal was allowed, and Mr Cook was discharged without conviction.

The court's reasoning was grounded in a detailed analysis of the statutory provisions and the relevant case law. It determined that the offending, while not the most severe, involved an assault in a domestic context following heavy drinking, with a verbal threat accompanying the physical act. However, mitigating factors such as Mr Cook's age, lack of prior convictions, expressed remorse, and the successful outcome of a restorative justice process were also considered. The court found that the risk of adverse employment consequences was real and appreciable, tipping the balance in favour of granting a discharge without conviction. The High Court concluded that the consequences of a conviction were out of proportion to the gravity of the offence, exercising its discretion under section 106 of the Sentencing Act 2002 to discharge Mr Cook without conviction.

Orders