Day v Police

[2016] NZHC 2725

IN THE HIG H COURT O F NEW ZEALAND ROTORUA REGISTRY

CRI-2016-470-28 [2016] NZHC 2725

BETWEEN

DWAYNE MURRAY DAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 November 2016
Counsel:	D Fraundorfer for Appellant S J P Davison for Respondent
Judgment:	15 November 2016

JUDGMENT O F BREWER J

This judgment was delivered by me on 15 November 2016 at 9:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:            Holland Beckett (Tauranga) for Appellant

Hollister-Jones Lellman (Tauranga) for Respondent

DAY v POLICE [2016] NZHC 2725 [15 Nove mber 2016]

Introduction

[1]      Mr Day is a soldier.   From 2004 to 2013 he served in the Regular Force achieving the rank of Corporal.  He is now active in the Ar my Reserves and has been promoted to Sergeant.   In his civilian life he has established a plastering business, but his status as a soldier remains a very large part of his identity.

[2]      It is part of the role of Army Reservists to assist the Regular Force with operational deployments overseas.  Leaders with Mr Day’s depth of experience are particularly valued.  Mr Day wishes to volunteer to join the training mission i n Iraq. The i ncident with w hich this Judgment is concer ned has delayed hi m putting forward his application.

[3]      The i ncident occurred on 12 May 2016 at a building site w here Mr Day was working as a plasterer and the victim was installing a garage.  The summar y of facts is laconic:

The  Victim  had  moved  some  timber  from  the  garage  to  the  hallway, [Mr Day] asked  him if he  is moving the timber  back after  he finished,  to which he agreed he would.

At about 11:00 am the Victim had finished installing the garage and sat in his work van and phoned his mother.

Moments later [Mr Day] approach the Victim in his van and ask (sic) him if he was going to move the timber.  The Victim ignored him as he was talkin g on the phone.

[Mr Day] said to the Victim “Do you want a punch to the face”, to which he

replied saying he will not move the timber if he was being threatened.

[Mr Day] walked away from the van back towards the house.   Seconds later he turned back and again approached the Victim in his van.

The Victim  was unaware  he had returned  and without  warning [Mr Day]

punched him which is commonly described as a ‘king hit’.

[4]      The victi m suffered a chipped tooth, his nose bled, and the right side of his face was sore.

[5]      Mr  Day,  at the  first available  opportuni ty,  pleaded  guilty to  a  charge  of common assaul t.  On 2 September 2016, in the District Cour t at Tauranga, he asked

Judge CJ Harding to discharge  hi m without conviction.   Judge Harding refused. 1

Instead, he convicted Mr Day, fined hi m $500 and ordered hi m to pay reparation of

$500.

[6]      Mr Day now appeals the refusal of Judge Harding to discharge hi m without conviction.

Application to adduce furt her evidence

[7]      Mr Fraundorfer, for  Mr Day, applied for leave to adduce fur ther evidence. This was an affidavit of Mr Day sworn on 27 October 2016.   In it, Mr Day gives more details of the incident, expresses his remorse and expands on the consequences for hi m of a conviction.  The Crown opposed the application.

[8]      Generally, only evidence that was not reasonably available for the hearing from which an appeal arises will be admitted in the appeal.  Such evidence needs to be sufficientl y relevant to the points being taken on the appeal that the interests of justice require the appellate court to consider it.  This r ule prevents appeal hearings being tur ned into second trials and promotes fi nality of litigation.

[9]      In this case the evidence is not fresh.   But neither is it controversial.   It provides a certain depth to the picture looked at by Judge Harding.  I admi tted it with the stipulation that I would  not adopt any aver ment of fact contradictory to  the summary of facts.  Mr Day pleaded guilty to, and was sentenced on, the summar y of facts.  I add that there are no bold contradictions, onl y some shadings.

Discharges without conviction

[10]     Section 106  of the  Sentencing Act 2002  gives  the  Court a  discretion  to discharge without conviction a person who, like Mr Day, has pleaded guilty to an offence or who has been found guilty of an offence.  A discharge without conviction is deemed to be an acquittal.

[11]     Section 107 is crucial.  It provides:

1       Police v Day [2016] NZDC 18893.

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a con viction  would be out of all proportion to the gravity of the offence.

(My emphasis)

[12]     Therefore, there are three considerations: (a)    the gravity of the offence;

(b)      the direct and indirect consequences of a conviction; and

(c)      whether those consequences are out of all proportion to the gravity of the offence.

[13]     In assessing the  gravity of the offence,  the Court should consider all the aggravating and mi tigating factors relating to the offending and the offender.

[14]     It  is  onl y  if  the  s 107  exercise  concl udes  that  the  conseque nces  of  a conviction are out of all proportion to the gravity of the offence that the Court will consider the exercise of its discretion to discharge under s 106 (although it would be rare not to then exercise it).

The role of the Court on appeal

[15]     This is a general appeal.  It proceeds by way of rehearing.  That means that I have to make my own assessment of the case in order to deter mi ne whether Judge Harding’s decision was correct.  Mr Day has the onus of satisfyi ng me that I should differ from Judge Harding.

The s 107 analysis

(a)      The gravity of the offence

[16]     I will look first at the offence itself.  The offence is common assault.  Judge Harding classified Mr Day’s offendi ng as moderately serious bearing in mi nd it was a punch delivered without notice.  The Judge called it a “king hit”.  Mr Fraundorfer took  exception  to  that  description  as  being  unduly  pejorative  since  its  popular

meani ng   is   attached   to   dr unken   attacks   on   unsuspecting   pedestrians,   not uncommonl y resulting i n death.

[17]     I am satisfied that Judge  Harding did not use the ter m in that way.   His Honour used it to encapsulate the description in the summary of facts which had the victim sitti ng in his van, Mr Day walking away after a brief exchange of words, and then retur ni ng and without warni ng punchi ng the victi m to  his head through the van’s open window.  I agree that that is an aggravati ng feature of the assaul t.

[18]     The second aggravating feature, mentioned by the Judge in his description of the overall incident, is that the victi m suffered actual inj ur y.  The chipped tooth and the bloody nose.

[19]     The circumstances in which the offence occurred are not of the most serious. This was not a malicious attack by a stranger.  There was some background.  The summary of facts refers to the victi m having moved ti mber and having agreed to move it back.  Mr Day’s later affidavit gives some more detail.  There was tension between the two men.

[20]     Then  there  are  the  circumstances  personal  to  Mr Day.    This  was  a  first offence.2     It was out of character – a  momentary loss of control.   Immediatel y afterwards   Mr Day   expressed   remorse,   tried   to   help   his   victi m  and   took responsibility for his actions.

[21]     Mr Day could not understand why he had over-reacted to what was a low level of provocation.  Of his own volition he went to a psychologist for help.

[22]     Judge Harding decided that for common assault this was moderately serious offending.  I agree; although expandi ng the spectrum, I would put it at the lower end

of moderatel y serious.

2       I discount the minor dishonesty conviction entered in 1998.

(b)      Consequences of a conviction

[23]     Mr Day advanced two principal consequences before Judge Harding – the effect on his voluntary work and the potential effect on his military career.  Before me   he  advanced  a  further  two  –  effect  on  his  civilian  career  and  indirect consequences such as impact on his son.  Putti ng aside that an appeal is not the ti me to advance grounds not put before the Judge at first i nstance, my view is that the first two grounds are the most i mportant.

[24]     I accept, as did Judge Harding, that a conviction will end Mr Day’s volunteer work  with   the   Graeme   Dingle   Foundation.      Mr Day,   to   his   credit,   helps disadvantaged teenagers in a number of ways and generally acts as a mentor. A letter from the Regional Coordinator for the Graeme Di ngle Foundation confir ms that a consequence  of  a  conviction  would  be  that  Mr Day  would  no  longer  fit  the Foundation’s criteria and would have to step dow n from his role as mentor.

[25]     Then there is the potential consequence for his military career.  Mr Day has reported his actions to the Ar my.  Once the Cour t process has fi nished, the Ar my will review his situation and decide whether he should be retained in the service.

[26]     Mr Day  has  provided  a  copy  of  Defence  Force  Order  for  Personnel Admi nistration, Policy Guidelines, and refers to 16.135 w hich discusses conduct that indicates retention may not be desirable.   I note that this section of the Defence Force Order applies to Regular Force Service members and not to Reservists. However, I would expect similar principles to be applicable.   The point is that a discharge without conviction would be viewed as indicating the Court’s view that the offence was mi nor and so should onl y be considered when it has, separately, special implications for the service.

[27]     Mr Day is also concerned that a conviction may jeopardise his obtaining of the  security  clearance  needed  for  hi m  to  deploy  with  the  Ar my  on  overseas operations.  He would not have to declare a discharge without conviction.

[28]     I have noted Mr Day’s advice that busi ness merger discussions will require

disclosure of a conviction and that a conviction will add to the embarrassment and

reputation issues which have caused hi m distress (including having had to explain hi mself to his son).  I do not consider these factors add materially to the weight of consequences.  All convictions carry some consequences, especially for someone of otherwise good character, and these are common examples.

(c)      Are the consequences out of all proportion to the gravity of the offence?

[29]     In my view, the consequences for Mr Day are largely embarrassment and the scrutiny he will have to undergo by those who deal with hi m in his various walks of life.   It seems  clear that a conviction will end his work for  the Graeme  Dingle Foundation.  That is unfor tunate.  Judge Harding recognised that.

[30]     Then there is the scruti ny by the Ar my.   This will take place regardless of whether a conviction is entered.  If the Defence Force Order ’s principles are applied to a Reservist, then all the circumstances will be taken into account.  I accept that a discharge without conviction would probably lessen the degree of scrutiny.

[31]     I accept that disclosing a conviction as part of security vetting for overseas service would also put Mr Day under more scr uti ny than otherwise.   But all that would mean is  that  Mr Day’s  retention review  would  be  put  before  the  vetti ng agency.  After all, he already has a dishonesty conviction from 1998 and that did not prevent hi m from serving in Afghanistan and East Ti mor.

[32]     The gravity of the offending is at the lower end of moderatel y serious.  The victim was take n unawares and punched to the head.  He received a chipped tooth and transitory i njuries.  Mr Day is remorseful and embarrassed.  As a man of good character who acted on the spur of the moment i n a situation of tension, a conviction will expose hi m to more scrutiny than he would care for.  He will lose his volunteer work with the Graeme Di ngle Foundation and he will have to explain hi mself to the Ar my. The test is whether those consequences are out of all proportion to the gravity of the offending.

[33]     I cannot say they are.  The test is not one of si mple disproportion.  It is higher than that.  It is “out of all proportion”.  I do not fi nd that Judge Harding was wrong in his decision.

[34]     I have also stood back and looked at Mr Day’s situation as a whole.  He lost his temper and str uck a man w hose behaviour he found provocative a single blow. He has been convicted of common assault – the least serious of the Cri mes Act offences of violence.   He has never before been convicted of a cri me of violence. His sentence reflects how civilian society regards his offendi ng: a fine of $500 and an order to pay a further $500 to his victi m.

[35]     There  is  nothi ng  in  this  offending  w hich  tends  to  bring  the  Ar my  into disrepute or would be of special concern to the Ar my due to the nature of Mr Day’s service in the Ar my.  The Ar my’s principal concern should be that a senior NCO is expected to keep control of his temper and not to punch people.

[36]     I see that Mr Day has the support of his company commander and of his Regi mental Sergeant Major.  He also has his service record to rely on.  The Ar my knows Mr Day,  he  has val uable experience, and  I would  not expect the officers reviewing his retention to recommend a disproportionate outcome.

Decision

[37]     The appeal is dismissed.

Brewer J