Dion v Police
[2013] NZHC 854
•22 April 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2012-404-000463 [2013] NZHC 854
CHRISTINA MARIE DION
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 22 April 2013
Appearances: M M Winterstein for the Appellant
E C Rutherford for the Respondent
Judgment: 22 April 2013
ORAL JUDGMENT OF GILBERT J
Counsel: M M Winterstein, Auckland: [email protected]
E C Rutherford, Auckland: [email protected]
DION V POLICE HC AK CRI 2012-404-000463 [22 April 2013]
[1] On 10 December 2012, following a defended hearing at the Pukekohe District Court, Judge McAuslan convicted Ms Dion of assault with a weapon. The Judge imposed a fine of $500 and ordered Ms Dion to pay reparation of $500. Ms Dion appeals against this conviction claiming that the Judge was wrong to find it proved beyond reasonable doubt that she was not acting in defence of property or self-defence. Ms Dion also appeals against sentence. She argues that the Judge ought to have discharged her without conviction under s 106 of the Sentencing Act 2002.
Appeal against conviction
[2] The circumstances were that Ms Dion’s chihuahua was attacking one of her neighbour’s chickens that had strayed through the fence into Ms Dion’s property. The neighbour had reached over the fence with the cane and was trying to keep the dog away from the chicken when Ms Dion approached. Ms Dion took the cane out of her neighbour’s hand and struck her on the arm with such force that it caused what the Judge described as a “significant injury” including a laceration and bruising to her forearm and bicep. The injuries are confirmed by photographs that were taken at the time and produced in evidence.
[3] Ms Dion claimed to be acting in defence of property (her dog). The particular section relied on by Ms Dion is s 53 of the Crimes Act 1961 which provides:
Every one in peaceable possession of any moveable thing under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person.
[4] The Judge found, correctly, that defence of property could not apply because Ms Dion struck her neighbour and caused bodily harm. There was no challenge to this finding, nor could there be. Ms Winterstein responsibly did not pursue this aspect of the appeal at the hearing.
[5] I turn now to the challenge to the Judge’s conclusion regarding the
availability of self-defence in this case. Section 48 of the Crimes Act 1961 provides:
Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
Neither counsel has been able to refer me to any authority addressing the question as to whether the word “another” in this section refers solely to another person or whether it could include dogs or other living creatures. Like the Judge, I am inclined to the view that the word “another” refers to another person, not a dog. However, I do not need to decide this issue because, in my view, the Judge was plainly correct in finding that s 48 could not apply in the circumstances.
[6] There could be no justification for Ms Dion striking her neighbour with the cane to defend herself or her dog. By the time the assault occurred, Ms Dion had taken the cane from her neighbour who was on the other side of a high fence and clearly posed no ongoing threat to her or to her dog. I agree with the Judge that self-defence was clearly unavailable on the facts of this case.
Appeal against sentence
[7] Ms Dion argues that the direct and indirect consequences of the conviction will be, in her case, out of all proportion to the gravity of her offending. Accordingly, she argues that the Judge was wrong not to discharge her without conviction under s 106 of the Sentencing Act.
[8] Before a judge can exercise her or his discretion to discharge a defendant without conviction under s 106, he or she must first be satisfied that the threshold test under s 107 is satisfied. This involves a three-step process:
(a) First, the Judge must identify the gravity of the offence considering all aggravating and mitigating factors in relation to the offending and the offender.
(b)Second, the Judge must identify the direct and indirect consequences of a conviction.
(c) Third, the Judge must determine whether those consequences would be out of all proportion to the gravity of the offence.
Gravity of the offence
[9] The evidence Ms Dion gave at the hearing differed in important respects from the victim’s evidence. The victim said that Ms Dion “grabbed the stick”, raised it above her head and hit her “really hard”. The blow struck the top of her arm which she had put up to protect her head. The victim, who is a registered nurse, thought that her arm was broken. She went to an emergency clinic where her arm was X-rayed but found not to be broken. She said that she sustained a serious laceration and severe bruising. She said she had to wear her arm in a sling, keep it elevated and could not use it at all for approximately seven days. She said that she has been left with a permanent scar on her arm.
[10] By contrast, Ms Dion said that “swiped her arm away from the stick”. She initially said that she then threw the stick at the victim but she later denied this saying that it did not happen. Ms Dion was unable to explain how the victim’s injuries occurred. When asked whether she was suggesting that her neighbour had inflicted these on herself, she said “I don’t know. I can’t answer that… I didn’t hit her”.
[11] The Judge accepted that Ms Dion struck the victim with the cane causing the injuries apparent in the photographs that were produced in evidence. The Judge described the victim as being “extremely distressed” and the injury as “significant”. The Judge did not need to decide, for the purpose of determining whether the charge had been proved, whether Ms Dion struck the victim with a “swiping” blow or the more serious blow described by the victim. She dealt with this at [20] of her judgment:
I am faced with two completely different factual scenarios. As for the elements of the offence, that must be where the Court’s focus has to be first,
an assault is simply the intentional application of force to the person of another. I accept on all of the evidence that there are clear admissions by the defendant that she did strike the complainant, whether it was a swiping blow or the deliberate blow the complainant has described, whatever it was it clearly was an intentional application of force… the elements of the offence are proven beyond any reasonable doubt.
[12] Unfortunately, the Judge’s sentencing notes were not transcribed because of a fault in the court recording system. It is therefore not clear which version of events the Judge preferred for the purpose of sentencing, and in particular, when she assessed the gravity of the offence under step 1 of the three-step process mandated by s 107. For the purposes of this appeal, Ms Winterstein invites me to proceed on the basis that Ms Dion’s evidence was accepted that the assault involved no more than a “swipe” on the victim’s arm.
[13] I am unable to accept this submission. First, it appears that the Judge did not accept Ms Dion’s evidence. She noted that Ms Dion denied hitting the victim when giving her evidence and denied throwing the stick at her but that these statements were contradicted by statements she made to the police the day after the incident:
Question: What did you hit [the victim] with? Answer: A stick that she was holding.
…
Question: How many times did you hit her?
Answer: I can’t remember. Once over I threw the stick at her…
[14] The Judge was also not prepared to accept other important aspects of Ms Dion’s evidence. Ms Dion claimed when cross-examined that she had not seen the chicken, whereas in evidence-in-chief she said she had. The Judge described this inconsistency as “surprising”.
[15] The Judge noted that Ms Dion would not accept that when she had the cane, neither she nor the dog was in any danger. Ms Dion said that the victim could have jumped the fence. The Judge said in relation to this evidence:
I have seen the fence and the complainant. That again is an extraordinary statement.
[16] In any event, the injuries sustained provide independent objective evidence that the victim was struck with considerable force. These injuries demonstrate that the incident involved much more than a mere “swipe”.
Consequences of a conviction
[17] Ms Dion filed an affidavit in the District Court setting out her concerns about the potential consequences of a conviction for her. She explained that she has a beauty therapy clinic and that she and her staff travel to Australia regularly to learn about new therapies. She said that she has plans to travel further afield to learn from growers in such countries as Hungary, Turkey, France and England. She would also like to travel to Tibet one day. She fears that a conviction could prevent her entry to these countries. She regards travel as essential to the growth of her business. Ms Dion also said that she may wish to foster or adopt a child at some stage in the future and she is concerned that she may not be able to do this if she has a conviction for assault.
[18] In a further affidavit filed today, updating her position, Ms Dion says that she is now considering selling her business and moving to Australia. She said that she is concerned that a conviction could impede her employment prospects. However, she did not suggest that her position was different from anyone else in this respect. Ms Winterstein submitted:
Given the nature of the employment/financial difficulties in NZ and indeed the rest of the world, any conviction which exists for one party and not another who are in competition for employment would clearly disadvantage the person with the conviction.
[19] Ms Dion remains concerned that a conviction could make it more difficult for her to adopt a child in New Zealand should she wish to do so. However, Child Youth and Family have not been able to say what impact, if any, Ms Dion’s conviction would have should she apply to adopt a child in New Zealand.
[20] Although not advanced in the District Court, Ms Dion raises two further consequences of a conviction in support of her appeal. First, she says that she has previously worked for Victim Support but will not be able to do so in the future with
a conviction. Second, she says that she will suffer embarrassment and loss of self-esteem every time she applies for insurance or travels to Australia. She is concerned that she will also be subject to further questioning and delays in proceeding through Customs.
[21] I accept that the conviction will have consequences for Ms Dion. However, I do not consider that these consequences will be more acute in her case than for most others with a similar conviction. There is no evidence that Ms Dion will not be able to travel. In any event, her primary reason for wanting to travel was to develop the business she is now considering selling. It appears that Ms Dion has no present intention of applying to adopt a child in New Zealand. There is no evidence of what impact the conviction might have on any such application, should she choose to make one at some time in the future. In any event, I note that Ms Dion is considering moving to Australia.
Disproportionality
[22] Although the sentencing notes are not available, it appears that the Judge was not persuaded that the consequences of a conviction would be totally disproportionate to the gravity of Ms Dion’s offending. That is also my assessment. It is clear from the significant injury sustained that the assault was serious. As I have said, I do not accept that it was a mere swipe. I do not consider that the evidence establishes that the consequences of a conviction for Ms Dion would be out of all proportion to the gravity of the offence. In my view, the threshold test under s 107 is not met in this case.
[23] In these circumstances, the Judge had no jurisdiction to grant a discharge without conviction under s 106. The Judge was correct to reject the application for a discharge and to enter a conviction. There is no other challenge to the penalty imposed which was a fine of $500 and an order to pay reparation of $500. The appeal against sentence must also be dismissed.
Result
[24] The appeal against conviction is dismissed. [25] The appeal against sentence is also dismissed.
M A Gilbert J
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