Drake v R - [2019] NZCA 56

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA457/2018
[2019] NZCA 56

BETWEEN	STEVEN DRAKE Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2019
Court:	Miller, Simon France and Peters JJ
Counsel:	R B Keam for Appellant D G Johnstone and D R Green for Respondent
Judgment:	15 March 2019 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe conviction is quashed. Mr Drake is discharged without conviction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Background

Following a jury trial in the District Court, Mr Drake was convicted on a charge of injuring with intent to injure.[1] He was initially charged with three charges arising from the same evening: threatening to kill, injuring with intent to injure, and assault with intent to injure. Judge Gibson discharged the assault charge,[2] and the jury acquitted him on the threatening to kill charge. Mr Drake unsuccessfully sought a discharge without conviction for injury with intent to injure pursuant to s 106 of the Sentencing Act 2002 (the Act), [3] and he now appeals that decision.

Facts

[1]Crimes Act 1961, s 189(2).

[2]R v Drake [2018] NZDC 8232.

[3]R v Drake [2018] NZDC 20394.

The Judge, when determining the discharge application, accepted the complainant’s evidence as representing what occurred.[4]
[4]At [5].
During the course of a family altercation, Mr Drake followed his brother, the complainant, into the kitchen. He punched him in the back of the head and a scuffle followed. During the course of this, Mr Drake bit his brother in the chest. He removed skin which has healed but which will leave permanent scarring. The defence was self‑defence, which the jury rejected. Judge Gibson rejected the proposition that the jury’s verdict reflected a conclusion of excessive self‑defence.[5]

Applicable law

[5]At [5].

The correct approach to s 106 of the Act is well settled. The Court must first assess the gravity of the offending, a task which includes having regard to aggravating and mitigating factors.[6] Next, the direct and indirect consequences of conviction must be identified,[7] and then the statutory test of consequences being out of all proportion to the gravity of the offending must be applied.[8] Finally, if the statutory test is met, the Court has a discretion concerning whether a discharge without conviction should be the outcome.
[6]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17] and [22]; DC (CA47/2013) v R [2013] NZCA 255 at [35] citing Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.
[7]DC (CA47/2013) v R, above n 6, at [43].
[8]Sentencing Act 2002, s 107; and Z (CA447/12) v R, above n 6, at [9].
Concerning an appeal, the appellate court must be persuaded the court below was wrong, but reaching that decision based on its own view of the merits.[9]

The gravity of the offence

[9]R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v…

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.

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Details

Case: [2019] NZCA 56
Decision Date: 15 March 2019 at 11.00 am

CaseChat Overview and Summary

Steven Drake appealed against the decision of the District Court to deny his application for a discharge without conviction under s 106 of the Sentencing Act 2002 (NZ). The appeal was heard by Miller, Simon France, and Peters JJ. Drake was convicted of injuring with intent to injure following a family dispute in which he bit his brother, resulting in permanent scarring. The jury acquitted him of threatening to kill and the judge dismissed the charge of assault with intent to injure. Drake argued that the consequences of his conviction would be out of all proportion to the gravity of his offending. The court accepted that the offending was relatively minor, but that the consequences of a conviction would significantly impact Drake's ability to work abroad and pay off his debts.

The court found that the consequences of a conviction for Drake would be out of all proportion to the gravity of his offending. Drake intended to work abroad to address his significant debt and had a realistic chance of obtaining well-paid work. However, a conviction would likely impede his ability to find such work, making it difficult to address his debt. The court considered the consequences of the conviction to be disproportionate to the seriousness of the offending, and thus granted Drake's appeal. The conviction was quashed, and Drake was discharged without conviction.

The court ordered that Drake be discharged without conviction and that the conviction be quashed. The Crown Solicitor for Auckland represented the respondent.

Orders