Dickin v Police
[2023] NZHC 760
•5 April 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-7
[2023] NZHC 760
IN THE MATTER of an appeal against conviction and sentence BETWEEN
WADE DICKIN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 March 2023 Appearances:
T Sutcliffe for the Appellant
P Noorland for the Respondent
Judgment:
5 April 2023
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 5 April 2023 at 2:00 pm.
Registrar/Deputy Registrar
Solicitors: Hamilton Legal (Office of the Crown Solicitor), Hamilton Counsel: T Sutcliffe, Hamilton
DICKIN v NEW ZEALAND POLICE [2023] NZHC 760 [5 April 2023]
[1] On 7 November 2022, Wade Dickin was convicted and discharged on a charge of intimidation by hindering the complainant’s use of his motor vehicle by grabbing his car keys and throwing them away.1 He was acquitted of a charge of assault with intent to injure. Mr Dickin’s oral application for discharge without conviction in respect of the intimidation charge was unsuccessful.
[2] Mr Dickin now appeals the conviction and the refusal of his application for discharge without conviction. This appeal was filed nearly two weeks out of time. Despite counsel advising Mr Dickin of the right of appeal after the hearing, there was no contact with him until he queried the option of appealing. This arose after Mr Dickin found he was being refused work opportunities. There appears to be no prejudice to the parties as a result of the late filing and the respondent does not oppose the application. I grant leave accordingly.
Factual background
[3] On 6 October 2021, Mr Dickin was driving behind the complainant and made a slight contact with the rear right corner of the complainant’s car. After the collision, both the complainant and Mr Dickin got out of their cars. The Police alleged that Mr Dickin swung his hands at the complainant, hitting him on the neck and jaw with an open hand three to four times. They also said Mr Dickin pushed the complainant to the ground twice, fracturing his thumb in the process.
[4] The Police then alleged that Mr Dickin continued to intimidate the complainant by standing over him and speaking to him in a threatening tone. Mr Dickin then took the complainant’s car keys and threw them into a field. He continued to threaten the complainant by saying “you taking my licence plate and going to call the cops? If anything happens, I will be back with 20 guys like me”.
1 Summary Offences Act 1981, s 21(1)(c). Maximum penalty: three months’ imprisonment or a
$2,000 fine.
Judgment under appeal
[5] In a judge-alone trial in the District Court,2 Judge S R Clark acquitted Mr Dickin of the assault charge after being presented with two diametrically opposed versions of events and with due regard to the presumption of innocence.
[6] In respect of the intimidation charge as laid, the Judge noted it required the Police to prove that Mr Dickin had threatened to injure another person or a member of their family, or to damage any of that person’s property, with the intention that the threat be taken seriously. Judge Clark doubted whether Mr Dickin had made the threat with the intent to be taken seriously, relying on Mr Dickin’s version of events that he said something along the lines of that he could be back with people if it went any further. The Judge viewed this as a heated discussion with words said out of frustration rather than any serious threat.
[7] However, the Judge acknowledged that Mr Dickin had reached into the complainant’s car, grabbed the keys, and threw them away in frustration when he had no right to do so. Therefore, pursuant to s 133 of the Criminal Procedure Act 2011, the Judge amended the charge to one of depriving the complainant of his property or hindering his use of it, by grabbing the keys and throwing them away. Because Mr Dickin had admitted, by his own evidence, to grabbing the keys, Judge Clark found he had hindered the complainant’s use of the keys even if he didn’t have the intention of permanently depriving the complainant of them.
[8]Judge Clark found the amended charge proven and convicted Mr Dickin.
[9] An oral application for a discharge without conviction was heard immediately after Judge Clark convicted Mr Dickin. Judge Clark refused the application.
Fresh evidence on appeal
[10] On appeal, Mr Dickin seeks to admit fresh evidence contained in his affidavit dated 10 March 2023. While no evidence was put before the Court at the oral application, this affidavit has since been filed to provide information on the difficulties
2 Police v Dickin [2022] NZDC 22113.
Mr Dickin has faced in finding employment since the conviction. The Police do not oppose leave for the Court to consider this new evidence. Accordingly, I grant leave to admit it.
Legal principles
Conviction Appeal
[11] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge- alone trial.
[12] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4)In subsection (2), miscarriage of justice means 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.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[13] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.3 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b). The Court of Appeal recently confirmed that s 232 did not change the approach to appeals against conviction. The tests that applied prior to the enactment of the Criminal Procedure Act continue to apply.4
[14] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.6
[15] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.7 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.8
[16] An appeal against conviction proceeds by way of rehearing.9 The appeal court must carefully consider all the matters that were before the Judge. But, ultimately, the court must reach its own decision.
3 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
4 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
6 At [110].
7 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
8 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 7, at [38].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
[17] The courts have also warned of the limitations involved in not seeing or hearing directly from the witnesses.10 An appeal court should only interfere with the factual findings of the trial judge in exceptional circumstances.11
Discharge without conviction appeal
[18] Section 106 of the Sentencing Act 2002 governs applications for discharge without conviction. It relevantly provides:
106 Discharge without conviction
If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[19] In applying s 106, the court must first be satisfied the threshold in s 107 is met:12
107 Guidance for discharge without conviction
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.
[20] In assessing whether the s 107 threshold is met, a court must consider three issues.13 It must first assess the gravity of the offending on the facts of the particular case, taking into account all aggravating and mitigating factors of both the offending and the offender; secondly, it must identify the direct and indirect consequences of a conviction being entered; and thirdly, it must determine whether those consequences would be out of all proportion to the gravity of the offending.
[21] An appeal of this nature is primarily one against conviction. Therefore, the law outlined above in the conviction appeal at [12]–[17] of this judgment applies. Namely, that the Court must dismiss the appeal if it considers the Judge erred in
10 Sullivan v Police HC Auckland CRI-2008–404–152, 2 October 2008 at [30]–[3l].
11 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].
12 The Court of Appeal noted in R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [8] that although the heading to s 107 refers to “Guidance”, the wording clearly makes the s 107 requirement mandatory.
13 R v Hughes, above n 12, at [16]–[17].
assessing the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.
[22] Usually, an appeal against the refusal to discharge an offender without conviction is also secondarily an appeal against sentence. However, because Mr Dickin was convicted and discharged, there is no sentence here to be appealed.
[23] Because the pre-requisite s 107 threshold is a question of fact requiring judicial assessment, an appeal against a refusal to discharge an offender without conviction is in that respect a general appeal by way of rehearing.14 The question on appeal is, therefore, whether in my view the consequences of Mr Dickin’s offending are out of all proportion to the gravity of his offending. If that is my view, it follows a miscarriage of justice has occurred in that the Judge erred by entering a conviction.
Submissions
Conviction Appeal
[24] Mr Sutcliffe, counsel for the appellant Mr Dickin, submits that Judge Clark erred in not considering or making a finding on the issue of intent to frighten or intimidate or whether Mr Dickin knew his conduct was likely to cause the complainant reasonably to be frightened or intimidated. He submits Mr Dickin was only found guilty because he admitted to grabbing the keys, he did not have the right to do so, and he hindered the complainant’s use of them. However, he submits that s 21(1)(c) of the Summary Offences Act requires the act of hindering a person’s use of property to be done with the intention to frighten or intimidate or knowing that such conduct is likely to cause the person reasonably to be frightened or intimidated.
[25] Mr Sutcliffe argues that Mr Dickin’s comments were already found in the District Court to be devoid of either of the necessary mens rea elements outlined above. In support of this, he refers to Judge Clarke’s impression of the evidence:15
My view of the matter is that the words said by Mr Dickin on his version of events perhaps get close to that but appear to be made between the course of
14 R v Hughes, above n 12, at [11].
15 Police v Dickin, above n 2, at [15].
a conversation, a discussion which was becoming heated. Some backwards and forwards and perhaps borne out of frustration and said at the heat of the moment. Therefore, I have doubt as to whether Mr Dickin attempted it to be taken seriously.
[26] From this, Mr Sutcliffe submits Judge Clark viewed the complainant as someone who was fully participating in the conversation and due to the backwards and forwards nature of the conversation, was neither frightened nor intimidated. He notes that while it is accepted that the complainant’s fright or intimidation at the relevant time of the conduct does not need to be established and rather it is the defendant’s state of mind that is relevant, the Court can infer knowledge from a defendant’s conduct. In support of this counsel cites Green v Police,16 where Edwards J considered that the court can infer the knowledge required under the alternative mens rea elements, that is, knowing that their conduct is likely to cause the other person reasonably to be frightened or intimidated, from the defendant’s conduct:
[58] The Court has to be satisfied beyond reasonable doubt that the defendant had knowledge his conduct was likely to cause the person to reasonably be frightened or intimidated. For the defendant to think this result “likely”, he or she must consider there is a real or substantial risk of that result, not merely a remote possibility. That is, the defendant must anticipate a feeling of fright or intimidation which would be a reasonable response to the conduct in question. A court can infer such knowledge from the defendant’s conduct.
[27] However, Mr Sutcliffe also submits that the conduct of the defendant should not be viewed in a vacuum divorced from that of the complainant when assessing the defendant’s knowledge at the time.
[28] It is then said that Judge Clark similarly held that Mr Dickin’s actions in throwing the key were “probably out of frustration”.17 Therefore, Mr Sutcliffe argues, it falls well short of a finding that Mr Dickin had an intention to frighten or intimidate or had knowledge his conduct would likely cause the complainant reasonably to be frightened or intimidated. He respectfully submits that Judge Clark’s sole focus was on the actus reus when he concluded the s 21(1)(c) charge was made out.
16 Green v Police [2017] NZHC 1551.
17 Police v Dickin, above n 2, at [28].
[29] Mr Sutcliffe contends that Judge Clark’s decision was wrong in law and fact because the only possible inference available from the evidence was that Mr Dickin was at most, frustrated, and never had the intention to frighten or intimidate the complainant, or knew that his actions would likely cause the complainant to reasonably be frightened or intimidated given the complainant’s presentation.
[30] Counsel for the Crown submits that the surrounding circumstances, as found by Judge Clark, were properly referred to in finding the intimidation charge proven. These surrounding circumstances include that while heated discussions were exchanged, Mr Dickin, perhaps out of frustration and in the heat of the moment, took the complainant’s keys and threw them away. The Crown acknowledges that this was not sufficient to establish the original charge, but says it is sufficient and contains the necessary mens rea for the amended intimidation charge.
[31] The Crown submits it was open to the Judge to infer that following a heated argument, Mr Dickin’s actions would reasonably have caused the complainant to be frightened or intimidated and that Mr Dickin would have been aware that his actions may result in such a feeling. They say this is because the actions of Mr Dickin must be viewed in the context of the incident as it occurred and the exchange between him and the complainant. Therefore, the Crown submits that an inference was available to Judge Clark that would satisfy the mens rea requirement.
[32] Accordingly, counsel for the Crown submits Judge Clark was best placed to draw such an inference, was not wrong in fact or law, and therefore, the appeal against conviction should be dismissed.
Discharge without conviction appeal
[33] Mr Sutcliffe submits that the consequences of conviction for Mr Dickin are out of all proportion to the gravity of the offending, and a discharge without conviction per s 106 of the Sentencing Act 2002 is appropriate.
[34] Counsel notes that Judge Clark was not satisfied, given Mr Dickin’s history of offending, that a discharge without conviction would make much difference to him going forward. He says this was despite Mr Dickin pointing out he had been offence
free for almost a decade and that an additional conviction of intimidation would have negative consequences for him. He refers to the affidavit of Mr Dickin that tells of the difficulties he has had in finding employment because of the recent conviction.
[35] Mr Sutcliffe refers to Z v R18 and R v Hughes19 as confirming that s 107 of the Sentencing Act requires a three-step approach by the Court when considering a discharge without conviction:
(a)Identify the gravity of the offending by reference to all the facts of the case, including aggravating and mitigating factors.
(b)Identify the direct/indirect consequences of a conviction.
(c)Determine whether direct/indirect consequences of a conviction are out of all proportion to the gravity of the offending.
[36] Counsel cites R v Leitch to confirm that Mr Dickin does not bear any onus in establishing the disproportionality test as all that is required is the Court be satisfied.20 Furthermore, Mr Sutcliffe submits it is not necessary for the Court to be satisfied that direct or indirect consequences would inevitably or probably occur. Rather, he submits it is sufficient if the Court is satisfied that there is a real and appreciable risk such consequences would occur.21 Counsel goes on to submit the higher the likelihood and the more serious the consequences, the more likely it will be that the statutory (disproportionality) test can be satisfied.22
[37] In light of this, counsel submits Judge Clark described the incident as minor, but at the time, there was no evidence to suggest consequences flowed from the conviction. He submits this has subsequently been proven to be otherwise.
18 Z v R [2012] NZCA 599, [2013] NZAR 142.
19 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA).
20 R v Leitch [1998] 1 NZLR 420 (CA) at 428.
21 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; R v Taulapapa [2018] NZCA 414 at [22].
22 Iosefa v Police at [35]; DC v R [2013] NZCA 255 at [43].
[38] Counsel for the Crown, guided by the appellant’s submission on this matter as they are not in possession of the sentencing notes or the comments of Judge Clark on this, submit that Judge Clark did not err in his assessment that the consequences of a conviction would not outweigh the gravity of the offending. They accept the law and test as set out by counsel for the appellant, and refer to Judge Clark’s reasoning that given Mr Dickin’s criminal history, he was not satisfied the conviction would make much difference to Mr Dickin going forward.
[39] In support of this, the Crown annex Mr Dickin’s criminal history and note the relevant prior convictions as including: injuring with intent to injure in 2009, male assaults female and common assault in 2010 and 2013, six convictions of contravening a protection order, and threatening to kill and assault with a weapon in 2013. The Crown also refer to Mr Dickin’s most recent conviction of cultivating cannabis in 2018, and therefore is no longer afforded the benefit of the Criminal Records (Clean Slate) Act 2004.
[40] The Crown recognise the gravity of the offending, on a stand-alone basis, could be considered low, as demonstrated by the convict and discharge sentence imposed by Judge Clark. However, they still submit Judge Clark did not err in his assessment.
Analysis
Conviction appeal
[41] The relevant mens rea of intending to frighten or intimidate or knowing that his conduct is likely to cause the complainant reasonably to be frightened or intimidated, applies to both the original intimidation charge and the amended charge. However, in respect of the original intimidation charge, Judge Clark assessed it in the context of whether Mr Dickin intended the threat to be taken seriously when he said something along the lines of he “could be back with people”.
[42] The words of Judge Clark that Mr Sutcliffe points to as demonstrating a lack of a finding of the relevant mens rea are not representative of that, but rather Judge Clarke’s view on Mr Dickin’s intention that the threat be taken seriously. After expressing doubt as to whether Mr Dickin did attempt the threat to be taken seriously,
the Judge amended the charge to represent only the throwing away of the keys. Therefore, Judge Clark’s findings that Mr Dickin was frustrated and may not have attempted the threat to be taken seriously, does not prevent a finding of the relevant mens rea for the conduct of throwing away the keys.
[43] Even though Judge Clark noted that Mr Dickin probably threw the keys away out of frustration, it was still open for him to infer from the evidence that Mr Dickin at least anticipated a feeling of fright or intimidation would be a reasonable response to his conduct. In other words, it must have been apparent to Mr Dickin that his actions of taking the keys out of the complainant’s car and throwing them away, would be intimidating.
[44] The doubt expressed by Judge Clark in respect of the intimidation by threatening to injure charge does not preclude him from finding the relevant mens rea in respect of the amended charge. I acknowledge that Judge Clark did not explicitly consider the relevant mens rea when turning his mind to the amended charge, however, this Court can, on appeal, draw its own conclusion from the evidence and circumstances. Given that I find it was open on the evidence for a finding that Mr Dickin did have the relevant mens rea, I do not consider there to be a real risk that the outcome was affected.
[45] Accordingly, I am not satisfied that Judge Clark erred in his assessment of the evidence to the extent that a miscarriage has occurred, or for any other reason. The appeal against conviction is dismissed.
Discharge without conviction appeal
[46] The gravity of Mr Dickin’s offending is relatively low. This is indicated by the relatively low maximum penalties under s 21(3) of the Summary Offences Act which are imprisonment for a term not exceeding three months or a fine not exceeding
$2,000.
[47] The consequences of the conviction are put to this Court in Mr Dickin’s most recent affidavit. Of relevance in this affidavit is Mr Dickin’s employability since the hearing and conviction on the intimidation charge. Mr Dickin says he has been
unsuccessful at many applications he has made for employment, with one employer telling him the most recent charge of intimidation was a disqualifying factor due to the nature of the job requiring interaction with members of the public. He says he cannot even get a minimum-wage job.
[48] Mr Dickin also points to the fact that he was in a well-paid job prior to his conviction and holds certifications and licences for various types of vehicles. He says that many of the jobs he has applied to are entry-level jobs which do not require the certifications or licences he has, but he is still constantly being rejected from them. This, he says, is a clear indication that the recent conviction is the main obstacle to him gaining employment.
[49] The Crown support Judge Clark’s consideration that Mr Dickin’s history of criminal offending means this recent conviction won’t change much going forward. This was determined by Judge Clark without the recent affidavit of Mr Dickin explaining his recent employment struggles.
[50] In light of this new evidence from Mr Dickin, which Judge Clark did not have available to him at the time he considered the consequences of the conviction, it is evident that this conviction has changed Mr Dickin’s employability considerably despite his history of criminal offending. Mr Dickin refers to this in his affidavit and says that despite his prior criminal offending in his younger years, he was employed by ACC as an installer of wheelchair ramps and regularly had contact with vulnerable persons. He says ACC was fully aware of his prior offending and that because he had grown up and left his offending in the past, it did not impede him from being hired.
[51] Judge Clark erred, albeit without fault as he did not have this affidavit evidence, in his assessment of the consequences of conviction. I consider the consequences would have been assessed as out of all proportion to the gravity of the offending because it is not the court’s aim to prevent persons from regaining employment, particularly if the gravity of their offending was low.
[52]Accordingly, a miscarriage of justice has occurred as a result of this error.
Result
[53]The appeal against conviction is dismissed.
[54]The appeal against refusal to discharge without conviction is allowed.
Order
[55] The appellant is discharged without conviction under s 106 of the Sentencing Act 2002.
Woolford J
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