Duncan v Police HC Napier CRI-2011-441-32

[2011] NZHC 1641

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-32

BETWEEN  MARK CHARLES DUNCAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 October 2011

Counsel:         M J Phelps for Appellant

F E Cleary for Respondent

Judgment:      28 October 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 28 October 2011 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

AJS Snell (Hastings) for Appellant

Elvidge & Partners (Napier) for Respondent

DUNCAN V POLICE HC NAP CRI-2011-441-32 28 October 2011

Introduction

[1]      On 11 July 2011, the appellant was convicted in the District Court at Hastings by Judge PR Connell of one count of male assaults female.  On 13 July 2011, Judge Connell sentenced the appellant to 90 hours’ community work and supervision for a term of nine months.  He appeals both the conviction and the sentence.

Appeal against conviction

[2]      The charge of male assaults female required the prosecution, in this case, to prove beyond reasonable doubt that the appellant, being a male, intentionally applied force to the complainant, being a female.

[3]      There was no dispute that on the day in question the appellant assaulted the complainant.    Indeed, there were multiple assaults.    But, because of the circumstances,  the  assault  to  which  the  prosecution  affixed  the  charge  was  an occasion when the appellant dragged the complainant by her hair for a distance of about three or four metres. There was no doubt that this occurred.

[4]      The defence at trial was that the dragging by the hair was justified under s 41

Crimes Act 1961:

41       Prevention of suicide or certain offences

Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.

The factual background

[5]      On 14 February 2011, the appellant and the complainant were living together as partners.  There was tension between the two and over the course of the day both consumed alcohol to the point of intoxication.  At some point in the evening there was an argument between the two which got to the point where the complainant went

to the kitchen and obtained a knife and a large meat fork.  It does not appear from the evidence that the complainant did so with aggressive intent.   In any event, the District Court Judge accepted that the appellant’s response was one of concern for the  complainant’s  safety.    The  appellant  had  been  greatly  upset  by  a  previous incident in which the complainant had deliberately cut her wrist and so his reaction was to try to disarm her for her own safety.

[6]      The  District  Court  Judge  accepted  that  at  this  stage  of  the  incident  the appellant wanted to remove the complainant from the house so as to take away her opportunity of harming herself with knives or any other dangerous implement within the house.  The Judge found there were at least three times during the incident that the appellant got the complainant out of the house.

[7]      On one of the occasions during which the complainant was moving from inside the house to the outside the appellant kicked the complainant to the midriff or chest area. This was seen by a neighbour.

[8]      I am going to analyse the District Court Judge’s decision subsequently in this judgment in some detail.   I therefore set out two of the pivotal paragraphs of the Judge’s decision.  They complete the narration of the facts and show how the Judge regarded them:[1]

[1] Police v Duncan DC Hastings CRI-2011-020-601, 11 July 2011

[6]       It seemed there had been considerable yelling between the two of them.  That is something I fully accept about this.  It seems that indeed there had been a high state of emotion between them.   There was effectively a yelling match over the course of this particular incident and there is enough in it for me to say that I accept about the prosecution case that Mr Duncan was in a highly agitated state as these things progressed.

[7]       At one point in the course of Mr Duncan trying to remove [the complainant] from the house her arm went through a glass window, and there is a photograph of that produced to the Court, and that in fact caused a very deep cut on the arm of [the complainant].  That cut, again, is exhibited by way of a photograph of it taken on the night.   Again, criminal liability could not be sheeted home to Mr Duncan for that because, on the complainant’s view of things, which I have to say is overly favourable about the defendant in terms of what happened.  She says that such was the struggle her arm went through the window.  Now, at that stage, I have to say that my thoughts that Mr Duncan was acting

entirely without any malice towards [the complainant], and that he was only acting to prevent her getting back into the house with the idea that she might harm herself, began to wane.  I put it on this basis – that this incident of the arm through the window, although not something he is responsible for, was one that would have stopped anybody in their tracks because of the breaking glass itself, because of the obvious injury to the arm  and  the  fact  that  there  was  blood  everywhere.  Despite  that, Mr Duncan continued to drag her from the house.   I understand that, initially, from the door to the outside was dragging her by the feet but then,  once  outside,  for  a  distance  of  about  three  or  four  metres, Mr Duncan was dragging [the complainant] by the hair.   At the point when the window broke, and there was obvious injury exhibited by the blood that was at the window, Mr Duncan himself ended up with blood on his hands.  The view of the behaviour of Mr Duncan for me changed. I say that because most people in his shoes at that time would have immediately halted what they were doing in terms of trying to get rid of [the complainant] and done something to assist her with her injury.   I think it was an indication to me, and the view I have taken of it, is that Mr Duncan was at that stage extremely angry, that he had an intention of taking  the  complainant  outside.    He  dragged  her  by  the  hair  some distance, three to four metres.  The complainant has tried to suggest that was by pulling her along under the shoulders, but from the observations of Mr Stiver the neighbour and the observations of Constable Hicks and the other constable, Constable Forgie who attended the scene, I find her to be incorrect.  The police turned up in response to Mr Stiver’s call and at that stage saw something of what was going on and I fully accept their evidence that the complainant was pulled along the ground by her hair.

The appellant’s submissions

[9]      Mr Phelps, on behalf of the appellant, submits that on the facts as found by the District Court Judge he should have concluded there was a reasonable possibility that the appellant was justified by s 41 in dragging the complainant by her hair:[2]

[2] Submissions of counsel for Mark Charles Duncan in support of appeal against conviction and sentence dated 17 October 2011

26.It is submitted that the dragging by the hair must be understood against that backdrop.

27.It is not suggested that His Honour has failed to turn his mind to section 41 of the Crimes Act 1961 rather what is suggested is that the interpretation and application of the section 41 in this case places an unreasonable burden upon the Appellant to behave in logical manner in circumstances where emotions were running high.

28.In this case, whilst accepting that the Appellant was not responsible for the injury to the arm, His Honour has determined that at the point the  arm  went  through  the  window,  the Appellant  ought  to  have ceased using any force against the Complainant.

29.With respect it is submitted that there can be no “bright line” drawn between the Appellant’s actions earlier in the incident and following the hand going through the window.   This was a situation of high emotion where the Appellant was trying to remove the Complainant from the house so she could not get access to knives to harm herself. The whole situation occurred against a backdrop of a previous incident of self-harm, alcohol consumption and high emotions and thus it is submitted that the conclusion that the Appellant’s actions went beyond the use of reasonable force is difficult to reconcile with the reality of this tense situation.

30.It is submitted that this was a desperate situation and the Appellant’s efforts to prevent self-harm were both desperate and clumsy. However, as identified in Jenkins,[3]  desperate circumstances call for desperate and extreme responses.  The Court ought to have regard for the fact that this was a situation of unexpected anguish during which it is difficult for any Defendant to meticulously weigh the amount of force to be used.   The grabbing of the hair may, in the usual light of day seem undesirable, but in the context of this case was a necessary response to the perceived threat of self-harm.

The Crown’s submissions

[3] Jenkins v Police (1986) 2 CRNZ 196 (HC) at 199 per McGechan J.

[10]     The  Crown  submits  that  the  District  Court  Judge  saw  the  events  of  the evening in question as being on a continuum.  While he was prepared to find that at earlier stages the appellant was motivated by concern for the complainant, he also found that at the time of the assault the appellant’s actions had ceased to be about suicide prevention.  Instead, as a result of the previous events, the appellant was then frustrated, angered and motivated mainly by a desire to get the complainant out of the house.  Therefore, at the time of the assault, the Judge was of the view that the appellant did not have reasonable grounds for believing that there was any imminent risk of the complainant harming herself.

[11]   Ms Cleary for the Crown submitted that the Judge’s interpretation and application of s 41 did  not place an unreasonable burden upon  the appellant to behave in a logical manner in circumstances where emotions were running high. The statutory test is whether at the time of the assault, given the circumstances as the appellant  reasonably believed  them  to  be,  the  force  used  was  reasonable.   The relevance of the state of the appellant’s emotions is that it goes to the appellant’s belief of the circumstances at the time.

[12]     Ms Cleary opposes the suggestion that the Judge had drawn a “bright line” between the initial stages of the altercation and the actions of the appellant after the complainant’s arm had gone through the glass window.   The task for the District Court Judge was to apply the legal test at the time of the assault.  The relevance of the complainant’s hand  going through the window was that the resulting injury assisted the District Court Judge in making his factual finding that the appellant cannot have believed, on reasonable grounds, that there was any imminent danger of the complainant harming herself and that, in any event, the force used was not reasonable.

Decision

[13]     The appeal is by way of rehearing.[4]     I must look at the issues afresh and decide for myself whether the evidence entitled the District Court Judge to enter a conviction.   Obviously, I will find it useful to refer to the District Court Judge’s reasoning, but I must make my own independent assessment of the evidence.

[4] Summary Proceedings Act 1957, s 121; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 [2008] 2 NZLR 141

[14]     Section 41 of the Crimes Act 1961 justifies the use of force to prevent the commission of suicide or (broadly) self-harm.  However, the section prescribes limits to such use of force.  In the first place, the force is only justified if it was reasonably necessary in order to prevent the commission of suicide or self-harm.  Where there is an evidential foundation for an accused acting for such a purpose, then the onus is on the  prosecution  to  prove  beyond  reasonable  doubt  that  the  justification  is  not available in the instant case.

[15]     In  this  case  the  appellant  did  not  give  evidence.    In  the  electronically recorded interview he gave to the Police he referred to the complainant’s previous act of self-harm which he witnessed and said that he was trying to prevent her on this occasion from harming herself again.  The complainant’s evidence gave a degree of

support to this. The District Court Judge accepted that this was the case.

[16]     As has been recently noted by the Court of Appeal,[5] s 41 protects preventive actions.  That is to say, action to prevent the realisation of the perceived threat.  The Court of Appeal went on to say:[6]

... However, we consider that, if s 41 is to be given efficacy, it must be interpreted as justifying the  use of such  force as may be  reasonably necessary  in  the  circumstances  as  the  intervener  reasonably  believed them to be.  While there is an element of subjectivity (for example, there must be actual belief), the test is objective (“reasonably necessary” and

“reasonable grounds”).   But a reasonable mistake may still attract the protection of s 41.  So if the threat reasonably appears to be immediate,

s 41 may protect even though it subsequently transpires that the threat

was not in fact immediate.

[5] Russo v R [2011] NZCA 79, [2011] NZAR 123 at [11].

[6] Ibid, at [12].

[17]     I find myself in agreement with the Crown’s submissions.  In my view, on the evidence, Judge Connell was fully entitled to find:

(a)       That at the time of the assault the appellant was not acting to prevent the complainant from committing suicide or self-harm; and

(b)Even if he were, dragging her by the hair after she had injured herself by putting her arm through the window was unreasonable.

[18]     On the evidence, there had been an altercation between the appellant and the complainant which saw the complainant react to the appellant’s anger by going into the kitchen and picking up a knife and a large fork.  Acting out of concern, because of the previous incident of self-harm, the appellant disarmed the complainant.  From there the altercation between them continued as a shouting match, during the course of which the appellant removed the complainant from the house on at least one occasion and the complainant returned to the house.  By the time the assault that is the subject of the charge occurred, the appellant was no longer acting calmly and rationally with a view to safeguarding the complainant.  Instead, he was angry with her and simply wanted to get her out of the house.  He was trying to do that when her arm went through a glass window and she cut herself badly. At that point, if he were

motivated to simply prevent her harming herself he would have assisted her with her

wound.  Instead, he continued to try to remove her from the house and, taking her by the hair, he dragged her outside. This was witnessed by neighbours.

[19]     The  District  Court  Judge  had  the  advantage  of  seeing  and  hearing  the witnesses.  However, even without that advantage, I agree with him that it was not a reasonable possibility that at the time of the assault the appellant was justified in terms of s 41 in using the force that he did.

Appeal against sentence

[20]     The appeal against sentence is really an appeal against the District Court Judge’s refusal to discharge the appellant without conviction pursuant to s 106 of the Sentencing Act 2002.

[21]     The Court may exercise its power under s 106 only if it is “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” (s 107).   The leading cases in this area are the Court of Appeal’s decisions in R v Hughes[7] and Blythe v R.[8]

[7] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

[8] Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.

[22]     In this case the appellant submits that the context of the assault is very important.  The context is concern for the wellbeing of the complainant.  There was no malice here; to the contrary, the appellant believed he was acting in the best interests of the complainant but, in his later anger and frustration, went too far.

[23]     The appellant submitted:

35.In the present case it is submitted that the Court has erred in its consideration that the offending was too serious.   The following factors ought to have been identified in relation to the seriousness of the offending itself:

(i)        There was an acceptance that the Appellant had been acting to  protect  the  Complainant  from  harming  herself, particularly in the early exchanges;

(ii)      There had been a finding that the Appellant had not caused the injury to the Complainant’s arm and therefore could not be criminally liable for that injury;

(iii)      The assault proven involved dragging the Complainant by the hair for 3-4 metres;

(iv)      The assault was an isolated incident, brought about by an unusual combination of factors (alcohol mixed with the personal history of the Complainant and the Appellant); and

(v)       This was not a situation where there were serious injuries suffered by the Complainant (caused by the Appellant).

36.It is submitted that the Court was also obliged to review all matters that may be relevant to culpability (see Delaney)[9]  in assessing the gravity of the offending.  The following factors were relevant to that assessment:

[9] Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, Miller J.

(i)        The Appellant was remorseful for his behaviour and had apologised to the Complainant;

(ii)      The  offending  was  out  of  character  for  the  Appellant (accepted by the Court) and the Appellant had no previous convictions for violence;

(iii)      The Appellant had enrolled for counselling to address issues that led to the  offending (alcohol, anger  and relationship counselling);

(iv)      The Complainant was very supportive of the Appellant and did not wish to see him punished;

(v)       The Appellant has been in full-time employment for some time;

(vi)     The Appellant must have been a low risk of re-offending;

and

(vii)     The Appellant was subject to conditions of Bail (including a curfew between February 2011 and July 2011).

[24]     As to the consequences to the appellant of a conviction:

40.The Court was provided with evidence (in the form of an affidavit from   the  Appellant)   which   indicated   the   consequences   of   a conviction for the Appellant. These consequences were:

(i)       Precluding  the Appellant  from  obtaining  a  Certificate  of

Approval to work in the security industry (pursuant to the

Private  Security  Personnel  and  Private  Investigators  Act

2010);[10]

[10] See s 62(f)(vii) of that Act.

(ii)      Precluding the Appellant’s employment with the Department

of Corrections;

(iii)      Revealing   two   earlier   minor   convictions   which   had previously  been  hidden  by  the  Clean  Slate  (Criminal Records) Act 2003; and

(iv)     Potential  implications  on  the Appellant’s  ability  to  travel

(although a more nebulous risk than those identified above).

[25]     Ms Cleary for the Crown supported the decision of the District Court Judge. The  offending,  although  out  of  character,  was  serious  and  his  initial  chivalric impulse was spent by the time the assault occurred.

The District Court Judge’s approach

[26]     In his sentencing notes of 13 July 2011, Judge Connell summarises his view of the offending in this way:[11]

[4]       What I am saying to you is your state of anger, your level of intoxication, which is your fault because you were drinking, you cannot blame intoxication and the law does not accept it as an excuse.  Had you, behaving in a way that I accept is out of character for you but was brutal and it was callous in what you did and as I found in the course of this case the force you were using in pulling her by the hair across the grass at the time that you did went beyond any suggestion that you were someone stopping her from committing suicide.   Up to the point where her arm went through the door perhaps that was your intention, but I cannot accept and could not accept that you were in some way saving her from self harm as you were pulling her across the grass by the hair.  I think your frustration had boiled over.   Your anger was there and you were really setting about to hurt her.

[11] Police v Duncan DC Hastings CRI-2011-020-601, 13 July 2011.

[27]     In addressing the request for a discharge without conviction, the Judge said:

[7]       The  gravity  of  this  offending  to  my  mind  precludes  a  s 106 discharge and I have to say that to you.  This was a brutal assault on her and it is no light matter.  It is not something that is insignificant and in terms of s 106 I simply find the gravity of this offending outweighs any consideration that I have for your circumstances.   You have good honourable purpose in saying give me this 106 discharge but I do not find that it meets the disproportionality test that is referred to by your counsel

in his excellent submissions and I cannot say to you that I could grant you a 106.

What I think you have to understand is that violence to this level often ends up with a term of imprisonment.  I am not going to impose that today and for one reason and one reason only.   You have very sensibly taken on board some of the things I suggested to you the other day and you have now gone to your doctor.  I have got that certificate in front of me confirming you are someone who from time to time suffers from depression. You are old enough to control that, to usefully use medication when it is required and I do not need to say anything more about that.  You have also gone to Central Health and you have enrolled in the First Steps Alcohol and Drug Programme.  That to me is probably the best possible thing you could do if you want a future, both in employment and more importantly in a relationship with [the complainant].  I note too that you have adopted the suggestion that I made that you go to the Family Counselling Co-ordinator here at this Court and arrangements have been put in place for you to attend counselling, hopefully with [the complainant].   You need to learn you are both at an age where maturity would suggest if you want a future relationship it has to be one that is not clouded by alcohol, bad temper and anger.  That is your only hope for the future.

[8]       All of these things can be put in place and I commend you for going and doing all these things, with the help of Mr Phelps.  But you think about it, you are at a bit of a crossroads.  You can either ignore the stuff, not attend these sessions of counselling and so on, you can play the game so to speak, or you can take some initiative and get on with this thing and, hopefully, come out the end of all of this a better person for it with some better understanding of [the complainant] and her difficulties. As well as being able to offer yourself to employers as a person who has not a harmful pattern of alcohol, which you currently have according to the Probation Service.  I hope that that will be the case.

Decision

[28]     The   disproportionality   test   in   s 107   involves   a   three-step   approach, considering first the gravity of the offending, then the consequences of a conviction, and thirdly whether those consequences are out of all proportion to the gravity of the offending.   Only if the s 107 threshold is met may the Court proceed to consider exercising  its  residual  discretion  to  discharge  without  conviction  under  s 106, although it is rare for a discharge not to be granted under s 106 where s 107 is

satisfied.[12]

(a)      Gravity of the offending

[12] Blythe v R at [11]–[14].

[29]     The offence was a serious example of male assaults female.  The complainant had  injured  herself  badly  immediately  before  the  assault.    She  was  bleeding profusely.  The assault consisted of dragging her by her hair for a distance of a few metres while she was bleeding.  Quantities of her hair were found in the appellant’s blood-covered hands at the Police Station.  Under normal circumstances a sentence of imprisonment would be called for.

[30]     In terms of his personal culpability, the appellant is remorseful for his actions and has apologised.   The assault was “out of character” and he has enrolled in counselling to address the issues that lead to it.  He has no previous convictions for violence and is not considered to be at any particular risk of future offending.

(b)      Direct and indirect consequences of a conviction

[31]     These would be serious.  The appellant has previously worked as a security guard.   He would  likely be prohibited to  do  so  in  the immediate future if  the conviction stands.   It is also highly unlikely that  he would be accepted by the Corrections Department.  However, those outcomes are not inevitable.  The Private Security Personnel Licensing Authority retains discretion to grant a certificate of

approval where it is satisfied that the person is suitable taking into account:[13]

[13] Private Security Personnel and Private Investigators Act 2010, s 53(5).

(a)       the grounds on which the applicant is disqualified under section 62 and the way in which that influences the suitability of the applicant; and

(b)       any  other  evidence  provided  to  the  Authority  relating  to  the character, circumstances, or background of the applicant.

[32]     In that regard I bear in mind Hammond J’s comments in Liang v Police:[14]

[14] Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].

If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is best able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an

occupation  is  not  a  determinative  factor  —  it  is  merely  a  factor  to  be considered in the balancing exercise.

[33]     The Corrections Department has a discretion to employ who it wants.  Given its role in the justice system, I would be slow to make a decision which would hide from it a potential employee’s criminal conduct.

(c)      Out of all proportion

[34]     This balancing is the pivotal part of the exercise.  It is not a simple balancing exercise because there is a counterweight to the balance, namely the requirement for consequences being “out of all proportion” to the gravity of the offence.

[35]     The offending was serious.   The context does not really alter that.   The assault was committed (as so many assaults are) when the appellant was angry and intoxicated.    Remorse  and  lack  of  convictions  for  violence  do  not  materially mitigate.   The potential consequences for the appellant’s future employment plans are serious also.   But in the context of his preferred employment, there are policy reasons against treating those consequences as decisive.  I cannot say that they are out of all proportion to the gravity of the offence.

[36]     In these circumstances I do not find the District Court Judge to be in error.

Residual discretion under s 106

[37]     I must also take into account that s 106 is the exercise of a discretion.  Being satisfied that the consequences of a conviction would not be out of all proportion to the gravity of the offending, I have no jurisdiction to entertain granting a discharge under s 106.

Conclusion

[38]     The appeals against conviction and sentence are dismissed.

Brewer J