Edward v Police - [2016] NZHC 878

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 Crown

Judgment:

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Farnan in the District Court at Queenstown on 25 November 2015.1 However, Mr Edward says that an offer of diversion was withdrawn before he was convicted and sentenced.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 However, following a challenge by the appellant’s counsel, the charge was withdrawn on 3 February 2016.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)…

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.

Continue reading Edward v Police

Details

AGLC: Edward v Police [2016] NZHC 878
Case: [2016] NZHC 878
Decision Date: 4 May 2016

CaseChat Overview and Summary

The appellant, Jeremy Stewart Airth Edward, sought a discharge without conviction under section 106 of the Sentencing Act 2002 from the High Court of New Zealand, Invercargill Registry. Edward was fined $500 and ordered to pay $130 in court costs by Judge Farnan in the District Court at Queenstown on 25 November 2015 for intentionally obstructing a police officer during the execution of his duty. Edward argued that the offer of diversion was withdrawn before he was convicted and sentenced. He contended that had the offer been made earlier, diversion should have been offered to him, and therefore, a discharge without conviction pursuant to section 106 was appropriate. The New Zealand Police opposed the appeal.

The court had to decide if the consequences of a conviction were out of all proportion to the gravity of the offence. The court considered the gravity of the offence, the consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offence. The court found that the initial decision to decline diversion was open to the police given the lenience previously shown to Edward. The subsequent events which prompted both the offer and then the withdrawal did not alter that. The court concluded that the consequences of the conviction were not out of all proportion to the gravity of the offending. Therefore, the appeal was dismissed.

The court did not grant the appeal and dismissed it. The court found that the consequences of the conviction were not out of all proportion to the gravity of the offending. The court considered the gravity of the offence, the consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offence. The court concluded that the consequences of the conviction were not out of all proportion to the gravity of the offending. Therefore, the appeal was dismissed.

Orders