Edward v Police
[2016] NZHC 878
•4 May 2016
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2015-425-000052 [2016] NZHC 878
BETWEEN JEREMY STEWART AIRTH EDWARD
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 May 2016 Appearances:
F E Guy Kidd for Appellant
M G McClenaghan for CrownJudgment:
4 May 2016
JUDGMENT OF DUNNINGHAM J
[1] The appellant, Mr Edward, seeks a discharge without conviction under s 106 of the Sentencing Act 2002.
[2] A discharge was not sought at the time of sentencing. Instead, Mr Edward was fined $500 together with Court costs of $130 by Judge Farnan in the District Court at Queenstown on 25 November 2015.1 However, Mr Edward says that an offer of diversion was withdrawn before he was convicted and sentenced. The reason for the withdrawal was later resolved. Had it been resolved before sentencing, Mr Edward says diversion should have been offered to him. He therefore considers that a discharge pursuant to s 106 is now the appropriate means
of disposing with his sentencing on appeal.
1 New Zealand Police v Edward [2015] NZDC 24300.
EDWARD v NEW ZEALAND POLICE [2016] NZHC 878 [4 May 2016]
Background
[3] On 5 April 2015, Mr Edward was charged with the offence of intentionally obstructing a constable acting in the execution of his duty.2 The incident involved a drunken altercation with a police officer, during which the appellant was found to have repeatedly verbally accosted the police officer and attempted to interfere with the police officer’s arrest of one of the appellant’s companions.
[4] The District Court was not asked to consider a discharge without conviction, although, as counsel for the appellant points out, under s 11 of the Sentencing Act
2002, there is a positive obligation on the Court to consider whether the offender would be more appropriately dealt with by discharging the offender without conviction under s 106.3
[5] During the sentencing process, the Judge enquired why the appellant had not been offered diversion. The prosecuting officer explained this was because, in the period between the laying of the charge and the sentencing hearing on
25 November 2015, the appellant had been charged with a further offence of obstructing a police officer. This charge had had its first appearance by that point, and was set down for hearing on 5 February 2016. However, following a challenge by the appellant’s counsel, the charge was withdrawn on 3 February 2016.
[6] Ms Guy Kidd says that the fact the Judge made enquiries about why diversion was not offered suggests that she was alive to the seriousness of convicting on this relatively minor matter and that the circumstances could have warranted a lesser response. Had the subsequent charge been withdrawn before sentencing Mr Edward could have been offered diversion. It is for that reason that the discharge without conviction is sought on appeal.
Circumstances relating to offering the appellant diversion
[7] The respondent explains that when the police prosecutor initially received the file, diversion was considered to be inappropriate. This was because Mr Edward:
(a) had previously received three police warnings for disorderly behaviour (11/9/2011) and offensive behaviour (10/5/2013 and
14/12/2014);
(b)had previously received a discharge without conviction on a charge of wilful damage (26/8/2014); and
(c) it was noted by the officer in charge at the time of consideration that alcohol appeared to be involved in all the previous incidents.
[8] The position subsequently changed and diversion was offered to Mr Edward. This was on the basis that he agree to complete 20 hours of community work, one alcohol counselling session, and provide an apology letter to the police officer involved. The respondent says the reasons for the change in position were “procedural” because the trial would not likely take place until 2016 and one of the witnesses had returned to Ireland.
[9] The appellant signed the police diversion scheme on 20 October 2015, but the diversion agreement was withdrawn three days later when Mr Edward was again charged with obstructing a police officer under s 23(a) of the Summary Offences Act 1981.
Principles on appeal
[10] Section 106(1) provides the discretion to order a discharge without conviction. However, before that discretion can be exercised, the Court must be satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.4 These consequences need not be certain, provided that there is a “real and appreciable” risk of them resulting.5
[11] Satisfaction of the threshold test for proportionality under s 107 is usually determinative, despite a residual discretion remaining. Because of this, appeals in relation to discharges without conviction are not treated as appeals against a judicial
discretion.6 Instead, normal appellate principles are applicable. The reasoning behind this was articulated in R v Hughes:7
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles … The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.
[12] The Court on appeal is therefore to consider the issues afresh. The following analysis of the present case follows the three-stage approach outlined in Z v R,8 identifying the gravity of the offence, the consequences of a conviction, and finally concluding a weighing of those two to answer the proportionality inquiry under s 107.
Relevance of the withdrawal of diversion
[13] The primary basis on which the discharge without conviction is sought is that it is the appropriate way to respond to the fact that the appellant has missed the opportunity to proceed with the offer of diversion.
[14] In support of this submission, the appellant refers to the decision of Cook v Police9 (which drew on the authority of Kenyon v Police10), for the proposition that the Court may take account of the fact that the defendant would not have been before the Court if the police had correctly considered the defendant’s eligibility for diversion. However, in both of those cases, it was clear that, in all respects, the candidates were suitable candidates for diversion. When the relevant test for discharge had been met, the failure to offer diversion was cited as a further reason for granting a discharge without conviction to achieve what should have been
achieved at the earlier stage of considering diversion.
6 H v R [2012] NZCA 198.
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
8 Z v R [2012] NZCA 599, [2013] NZAR 142.
9 Cook v Police HC Auckland A01/03, 28 February 2003.
[15] In this case, confusingly, two explanations were given for the withdrawal of the offer. Mr Edward’s affidavit evidence says that “I was initially offered diversion but this was subsequently withdrawn when I elected to defend the charge”.11
However, I was informed from the bar that this did not fully and correctly set out the situation but, rather, the decision was made to defend the charge when the offer of diversion was withdrawn because of the fresh charge against Mr Edward.
[16] Notwithstanding that unsatisfactory position, what is clear is that this is not a case such as Cook, where there was evidence that the decision to refuse diversion was inappropriate. Importantly, diversion was initially not offered because Mr Edward had already had three warnings for disorderly or offensive behaviour and had previously been discharged without conviction on a charge of wilful damage. The decision to decline diversion was clearly open to the police at the outset in these circumstances. The fact that the police subsequently offered, and then withdrew, diversion reflected the further information which had come to hand at the time.
[17] None of these subsequent decisions fell into error in the way suggested in Cook, where the decision was the result of “subservience to the complainant’s wishes” rather than applying the relevant prosecutor’s guidelines. Furthermore, in that case, the fact the defendant “would not have appeared before the Court at all if the police had considered his application for diversion in accordance with their internal guidelines” was simply confirmatory of the outcome of the threshold criteria in s 107 having been met. It was not suggested that it overrode or modified the s 107 test which must be met when a discharge against conviction is sought.
[18] In the present case, I cannot conclude that Mr Edward would not have been before the Court had the diversion decision been properly made. The initial decision to decline diversion was open to police given the lenience previously shown to Mr Edward, and the subsequent events which prompted both the offer, and then the withdrawal, do not alter that. There is no injustice to be remedied and I consider this
factor is not relevant to my decision-making.
11 Affidavit of the Appellant dated 21 April at [3].
[19] That means I simply have to consider the application for discharge in light of the three-stage test in R v Hughes. That requires me to give consideration to the gravity of the offending, then the consequences of conviction and then, finally, whether those consequences are out of all proportion to the former.12
Gravity of the offending
[20] In Delaney v Police,13 Miller J said that in considering the gravity of the offending the Court should have regard to:14
… not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is the offender will reoffend, the victim’s perspective and any consequence already suffered by way of reparation, community work or publicity.
[21] Here I accept this was not serious offending. However, it did involve offending against a member of the police who was endeavouring to carry out his duties, and this elevates it from being merely trifling. Furthermore, the fact that the appellant had had previous dealings with the police and had been treated leniently on four occasions over a three year period, exacerbates the gravity of the offending. It could not be characterised as one-off offending, but as repetition of a pattern of offending where, on each occasion, alcohol appears to have been involved.
[22] While I take into account Mr Edward’s relative youth on these earlier occasions, his failure to moderate his behaviour as he moves into adulthood makes him more culpable than if I could characterise the offending as a true one-off incident.
[23] In all the circumstances, I assess the gravity of the offending is in the low to moderate range.
12 R v Hughes, above n 7.
13 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005.
14 At [29].
Consequences of the offending
[24] In terms of the consequences of the offending, the appellant has raised generalised assertions that he would like, in the future, to work overseas in the finance sector, and a conviction may jeopardise his ability to find employment in this field.
[25] I accept the respondent’s submission that there is no evidence before the Court which demonstrates a real and appreciable risk that a conviction would hinder future employment prospects. In that regard I note the observation of the Court of Appeal in Edwards v R,15 where that Court did not accept that all employers would fail to look beyond the bare fact of a conviction rather than considering its circumstances and mitigating factors, especially where the offender is generally a
person of good character.
[26] It appears that the ability to obtain employment is also linked to Mr Edward’s desire to travel, because a conviction would hinder his ability to obtain employment with international employers. However, those plans are clearly speculative at best, and the Court has held on a number of occasions that speculative travel plans, on their own, will not be sufficient to demonstrate an adverse consequence of conviction.16
[27] The only specific travel plan is the possibility of Mr Edward travelling to the Rio Olympics, where his sister will be participating. However, there is no evidence before the Court as to what difficulties, if any, his conviction would cause in that regard. I therefore do not consider this is relevant to the proportionality test.
Conclusion
[28] It will be obvious from the above discussion that I do not consider that the consequences of this conviction are out of all proportion to the gravity of the offending. While inevitably there have been, and will continue to be, adverse
consequences for Mr Edward stemming from this offending, they do not strike me as
15 Edwards v R [2015] NZCA 583 [18].
16 See, for example Barker v R [2014] NZHC 435 at [45].
being significantly different from the consequences that any young person might experience with such a conviction.
[29] Accordingly, the appeal is dismissed.
Solicitors:
AWS Legal, Invercargill
Preston Russell Law, Invercargill
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