D v Police HC Wellington CRI-2008-485-19
[2008] NZHC 743
•22 May 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2008-485-19
D
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 May 2008
Appearances: R M Gould for Appellant
J Murdoch for Respondent
Judgment: 22 May 2008
RESERVED JUDGMENT OF CLIFFORD J
Introduction
[1] On the afternoon of Sunday 30 September 2007, Mr D , the appellant, and three of his cousins entered the grounds of Bellevue School.
[2] The four cousins approached the school swimming pool, which was fully fenced and which had a wire gate secured by a chain and padlock. They saw three wooden doors within the swimming pool area. Using a netball post picked up from
the ground, they struck the padlock several times and succeeded in smashing it off.
D V POLICE HC WN CRI-2008-485-19 22 May 2008
[3] They entered the enclosed swimming pool area, and proceeded to smash open the three wooden doors with a metal pole picked up from inside that area. On ascertaining that there was nothing in the sheds worth taking, the offenders proceeded to the kindergarten next door. No charges arose in respect of their presence at the kindergarten.
[4] Following this incident the appellant pleaded guilty before Judge Harrop in the District Court at Wellington on 2 April 2008 to one charge of intentional damage and one charge of being unlawfully on a property.
[5] After hearing submissions from Mr D ’ counsel, the Judge refused to discharge the appellant without conviction, as is provided for by s 106 of the Sentencing Act. He convicted the appellant on both charges. By way of sentence the Judge imposed reparation of $100 on the wilful damage charge and a fine of
$200 and court costs of $130 on the charge of unlawfully being on a property.
[6] Mr D now appeals against the District Court Judge’s refusal to discharge him without conviction.
The District Court decision
[7] In declining to discharge the appellant without conviction, the District Court Judge first noted that a discharge without conviction was an exceptional thing for someone who was guilty of an offence. He was not to discharge Mr D without conviction unless he was satisfied that the direct and indirect consequences of entering a conviction would be out of all proportion to the seriousness of the offences. That was a very difficult thing to achieve, and involved looking at matters on the basis of a three-step process.
[8] Correctly summarising the law, the Judge noted that he had first to make an assessment as to the seriousness of the offending. He then had to look at the direct and indirect consequences of entering a conviction and finally, he had to weigh those matters up and decide whether the direct and indirect consequences identified were out of all proportion to the seriousness of the offending.
a) He first considered the seriousness of the offending. He noted that the charges that the appellant faced were not nearly as serious as many. But he said he regarded the offending involved as a fairly serious example of its kind. That is, it was wilful damage to school property bought or built using public funds or funds generated by parental donation. It was a community facility. He acknowledged, however, that the appellant had accepted responsibility and had been fully co- operative with the Police, and respectful to them at all times.
b)He then considered the direct and indirect consequences of entering a conviction. Here, he noted that the appellant’s counsel had responsibly and sensibly accepted that the difficulty for someone in Mr D ’ position, starting out on a career, was that he could not identify specifically what the consequences of these convictions might be. The appellant’s counsel did point, however, to difficulties arising from such convictions in terms of future career and travel opportunities.
c) Then, in a passage of the judgment central to the Judge’s reasoning, he stated, at [13] of his sentencing notes, as follows:
The difficulty that you have is that in order to meet the test in the legislation I have to have identified to me, some adverse consequences direct or indirect and I really cannot see that there are any here I am afraid. I can see risks, I can see potential adverse consequences, but I cannot see any direct consequences or indirect consequences that would meet that test, and even if there had been I then would have to be satisfied that they are out of all proportion to the offences and I am satisfied that that test is not met here.
[10] On that basis, he declined to discharge the appellant without conviction, and entered convictions and sentences as noted above.
[11] Taken overall, I understood Ms Gould’s submission to be that the District Court Judge had erred, particularly in the passage I have referred to at [9(c)], by concluding that no relevant adverse consequences for the appellant had been identified. She submitted, further, that once identified, those relevant adverse consequences could properly be regarded as being “out of all proportion” (s 107) to the gravity of Mr D ’ offending.
[12] More specifically, Ms Gould argued that the three step approach, set out by Richardson J in Inspector of Fisheries v Turner [1978] 2 NZLR 233 (CA), remained the appropriate test, notwithstanding the different wording now found in s 107 of the Sentencing Act 2002 compared to earlier expressions of the discretion to discharge without conviction.
[13] Ms Gould was critical of the District Court Judge’s description in this case of s 107 providing a “stiff test”. She drew my attention to the decision of Gendall J in Hughes v Police HC WN CRI-2007-485-155 18 March 2008. Hughes involved an appeal from an earlier decision of the Judge, where he had described s 107 as creating a “very stiff test”. Ms Gould contrasted the approach taken by Gendall J in the Hughes decision, where he upheld the Judge’s decision, to that taken by Justice France in Kingi and McEwen v NZ Police HC WANG CRI-2007-483-4 6 September
2007.
[14] Ms Gould submitted that the District Court Judge took an unduly restrictive approach to the exercise of the discretion provided to him by s 106, particularly when seen in the context of the Sentencing Act taken as a whole.
[15] For the Crown, Ms Murdoch submitted that the appellant had not pointed to any error of law on the part of the District Court Judge in refusing to exercise his discretion. Moreover, there was no evidence at the time of the District Court hearing, or now, of any consequences that met the statutory test.
[16] Ms Murdoch identified an apparent divergence in High Court authority. In Police v Devereux HC AK A03/02 27 June 2002, she submitted that Heath J held that s 107 requires affirmative proof that the consequences of conviction would be out of all proportion to the gravity of the offence, as a condition precedent to the Court exercising jurisdiction to discharge without conviction. In contrast, Randerson J in Iosefa v NZ Police HC CHCH CIV-2005-409-64 21 April 2005 held it was sufficient if the Court is satisfied there is a “real and appreciable risk that such consequences would occur”. Ms Murdoch submitted that even if the latter approach was considered correct, there must at the very least be some evidence before the Court as to the risk of those consequences occurring for it to be so satisfied. Here, there was no such evidence.
Approach to this appeal
[17] With respect, I adopt the approach articulated by Justice Gendall in Hughes, where he said, at [33] to [35]:
[33] Appeals such as these under the Summary Proceedings Act are general appeals and the traditional approach is that the appellant bears the onus of satisfying the Court that it should differ from the original decision, and any weight given by the appellate Court to the original decision is a matter of judgment.
[34] The approach has been discussed and modified by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103. The Supreme Court said at para [16]:
“Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.”
[35] Where the original decision-maker may have an advantage in terms of technical expertise or because of the opportunity to assess credibility (where such is important), an appellate Court “may rightly hesitate to conclude that findings of fact or fact and degree are wrong” but the “customary” caution appropriate when facts found by the original decision-
maker turn on issues of credibility (emphasis added) is not to be read as a general requirement of deference to the original decisionmaker’s assessment of the acceptability and weight to be accorded to the evidence. Caution is appropriate where an appeal is against the exercise of a discretion, as in this case, nevertheless, if satisfied that the Judge’s decision was wrong, it cannot stand.
Discussion
[18] For my part, I consider that the approach in Iosefa accords with my understanding of what it means for a Court to be “satisfied” on a particular matter. I also accept that, as Ms Gould submitted, the three-step approach outlined by Richardson J in Turner remains applicable.
[19] Ms Gould’s submissions were essentially based on the proposition that, influenced by his understanding that s 107 involves “a stiff test”, the Judge had failed to identify relevant direct and indirect consequences. Further, when identified, those consequences could properly be regarded as being out of all proportion to the gravity of his offending.
[20] I note first that, as Ms Murdoch submitted, in Haligan v Police [1955] NZLR
1185 (at 1188) and in Inspector of Fisheries v Turner (supra), the Court stated that the jurisdiction to discharge without conviction was to be exercised sparingly, although not so sparingly as to fetter the Court’s discretion. The standard required to meet the threshold under s 107 was a high one. The phrase “out of all proportion to the gravity of the offence” embodied the common law test applied to s 19 of the Criminal Justice Act 1975, prior to the commencement of the Sentencing Act 2002. In Stewart v Police HC DN AP43/89 7 July 1989, Smellie J had noted that the overriding criterion for the exercise of the discretion was that there should be “something exceptional” about the offender or the offence. In Police v Roberts [1991] 1 NZLR 205, the Court of Appeal stated at 210:
The words “out of all proportion” point to an extreme situation which speaks for itself.
[21] Likewise, in BC v Police HC WN CRI-2003-485-101 2 June 2004, Ronald Young J acknowledged at [9]:
that the words “out of all proportion” imply significant disproportionality of consequence…
[22] I therefore agree with the Crown’s submission that the language and interpretation of the test in s 107 means that significant disproportionality between the offending and its consequence is required to warrant a discharge. Something exceptional is needed, which takes the case outside the realm of ordinary cases.
[23] I am not persuaded, therefore, that the Judge erred when he said that s 107 involved a stiff test, or that a discharge without conviction was an exceptional thing, or that it was a very difficult thing to achieve. Those descriptions of the implications of the test to be applied accord with the authority to which I have referred.
[24] Neither at trial, nor on appeal, was counsel for Mr D , including Ms Gould, in a position – in my judgement – to identify the type of disproportionality between the gravity of the offending and the consequences of a conviction so as to provide a basis for the exercise of the discretion. I accept that the potential consequences pointed to before Judge Harrop were real consequences, in the sense that any conviction may possibly have some impact on employment and travel. It was not established, however, that those consequences were out of all proportion to the entry of a conviction. Whilst the Court can sympathise with the position of an offender such as Mr D who may, in the future, have to deal with adverse consequences arising from the fact that he has been convicted, in my judgement that is not, of itself, sufficient to satisfy the statutory test.
[25] I note that at one point in her submissions Mr Gould did suggest that she might benefit from having further time to speak to Mr D , to identify such matters with greater particularity. I do not consider it appropriate for this matter to be adjourned, if that was in fact what she was asking for. The appeal was set down in the normal way, and Ms Gould would have been well aware of the potential relevance of such matters, were she and Mr D in a position to identify them.
[26] Taken overall, I do not accept Ms Gould’s submission that the identified potential consequences were, for Mr D , shown to be out of all proportion to the gravity of his offending.
[27] Ms Gould had also, in her written submissions, raised issues of parity of treatment as between the appellant, and his co-offenders, particularly on the basis that one of his co-offenders had undergone diversion. The District Court Judge would not appear to have been aware of that fact at the time, a consideration which Ms Gould suggested was relevant, and which should have been placed before the District Court Judge.
[28] Before me, however, Ms Gould acknowledged that the appellant was not eligible for diversion, having previously been placed in a diversion programme. Although Ms Gould explained to me the background circumstances as regards that matter, I am not persuaded that the District Court Judge’s decision should be revisited by reference to that consideration. Even if the Judge had been aware that one of Mr D ’ co-offenders had been dealt with by diversion, that outcome was not a possibility for Mr D . I do not think, therefore, that the Judge being unaware of this fact meant that he failed to take into account a relevant consideration so as to give rise to an error in the way in which he exercised his discretion.
[29] As I have noted, the fundamental difficulty for Mr D , in my judgement, was that on the facts of this case, as identified in the District Court and before me, the Court was not satisfied that the consequences of Mr D ’ convictions were “out of all proportion” to the offending involved.
[30] On that basis, and for the other reasons set out in this judgment, I do not consider the District Court Judge erred. This appeal is dismissed.
“Clifford J”
Solicitors: Luke Cunningham & Clere, Wellington for Respondent
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