F v Police HC Auckland CRI 2008-404-128

[2009] NZHC 391

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-128

BETWEEN  F

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 April 2009

Appearances: Peter Eastwood for Appellant

Sarah Pidgeon for Respondent

Judgment:      2 April 2009

JUDGMENT OF HARRISON J

SOLICITORS

Peter Eastwood (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

F V POLICE HC AK CRI 2008-404-128  2 April 2009

Introduction

[1]      Mr F   was convicted in the District Court at Auckland on 15 April

2008 following his plea of guilty to a summary charge of threatening to do grievous bodily  harm.    He  was  sentenced  to  80 hours  community  work  and  placed  on supervision  for  six  months.     He  was  represented  in  the  District  Court  by Mr Eastwood.

[2]      Mr F   filed an appeal in this Court against his conviction and sentence on

15 May 2008.   His notice simply asserted that the Judge erred in fact and law. However, his argument has been throughout, as articulated by Mr Eastwood this afternoon, that the Judge erred in refusing to exercise his statutory discretion to discharge him without a conviction: ss 106 and 107 Sentencing Act 2002.

Adjournment

[3]      Mr Eastwood has appeared at short notice today.   While Mr Eastwood was originally instructed, it appears from the Court file that Mr F   sought to engage other counsel to argue his appeal.  Mr Eastwood has, however, agreed to resume the brief at very short notice.  He applied for an adjournment, which I refused.

[4]      By way of brief background to Mr Eastwood’s application, this appeal was originally  set  down  for  hearing  on  19 August  2008.    Mr F    applied  for  an adjournment on the ground that he was waiting for approval of an application for legal aid to instruct another lawyer.  The Crown did not oppose.  Wylie J granted an adjournment on 18 August 2008.   The registry allocated  a substitute fixture for

7 October  2008.    Mr F    sent  a  facsimile  request  on  2 October  for  another adjournment.   He said that he required further time to instruct counsel.   Again, perhaps surprisingly, the Crown did not oppose.   On this basis I granted a final adjournment on 2 October.   Mr F   was warned that he could not continue to adjourn the case indefinitely.

[5]      The registry allocated a further fixture for 2.15 pm today.   Mr F   made another facsimile request on 31 March for an adjournment.  He advised that his new

counsel was unable to obtain documents from his previous lawyer (Mr Eastwood). He sought time to produce further documents.   When writing that facsimile I can only assume that Mr F   was unaware of a letter sent by Mr Mark Edgar to the registry on 5 March 2009 advising that he had not received any recent instructions from Mr F   to pursue the appeal and requesting the registry to liase directly with Mr F  .   Based on this communication the only inference is that Mr F   had engaged Mr Edgar some months ago but had not provided instructions.

[6]      I refused Mr F  ’s application on 1 April.   The sentence under challenge was  imposed  nearly  a  year  ago.    Mr Eastwood,  as  noted,  appeared  today  and renewed Mr F  ’s application.  I accept that he had not received full instructions. Nevertheless I stood the appeal down for argument until 3.45 pm.  I was confident that Mr Eastwood would be in a position to advance oral submissions given his familiarity with the case.

District Court

[7]      Mr Eastwood submits that Judge Gittos erred in principle in three respects. Before dealing with his argument, however, I recite that the power to discharge without conviction can only be exercised, as the Crown’s written submissions confirm, if: s 107 –

… the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

There is a statutory injunction against discharging unless the sentencing Judge reaches this level of satisfaction.

[8]      As Ms Pidgeon emphasises for the Crown, the starting point is consideration of the gravity of the offending.  Judge Gittos summarised Mr F  ’s conduct in this way:

[5]       What this man is said to have done, if the summary of facts is accepted and it is not challenged, is that  he  was  making a  nuisance  of himself on a Sunday night in August last year at a bar in Princes Wharf in the city.

[6]       He was intoxicated and asked by the complainant, Mr McRae, to leave the bar.  He did not do as he was asked but went and molested some Asian girls which concerned them and he was again asked to leave by the complainant whereupon he grabbed the complainant’s shirt, stepped up to him and said to him in a low voice words to the effect – ‘Do you know who I am, I have connections, I am going to stab you, I’m with the Asian Mafia’.

[7]       Not surprisingly the bar manager was somewhat discomforted by this and retreated in alarm from the defendant not knowing quite what to make of the situation.

[8]       The police were called and in the meantime the defendant left the premises and addressed himself to another young woman who was getting out of a car and tried to take hold of her and had to be spoken to by her companion.

[9]       It is evident that all of this came about because this man was quite grossly intoxicated.  Speaking to the probation officer, Mr F   says that he has no recollection at all of these events and considers that his behaviour was out of character.

[10]     It may be that his behaviour in relation to making threats is out of character but his behaviour in relation to misuse of alcohol could hardly be said to be in that category since he has previous convictions for driving with excess breath alcohol, refusing to provide a blood specimen and disorderly behaviour.

[9]      The  summary  of  facts  to  which  Mr F    pleaded  guilty  portrayed  his behaviour that night in a particularly adverse light.  He had, as the Judge noted, made a nuisance of himself at licensed premises in the inner city.  The culminating act was his  confrontation  with  the  complainant.    Mr F  ,  according  to  the  summary, suddenly grabbed the complainant’s shirt, causing the latter to step back to break the grip.  Mr F   then walked up to the complainant and confronted him in what was said to be an ‘almost nose-to-nose’ relationship.  He said to him – ‘Do you know who I am?  I have connections.  I am going to stab you.  I’m with the Asian Mafia’.

[10]     While  Mr Eastwood  is  correct  that  the  charge  of  threatening  to  cause grievous  bodily  harm  covers  a  wide  range  of  criminal  misconduct,  Mr F  ’s offending was not of a minimal nature.  It was certainly, as Mr Eastwood submits, at the lower end of the scale of culpability.  But the offence itself and its consequences were serious and, as Ms Pidgeon submits, the threshold inquiry is into the gravity of the offending and all of its circumstances.  In my view Judge Gittos was correct to treat the offence as being of a serious nature.

Appeal

[11]     Against  that  background  Mr Eastwood  raises  three  grounds  of  challenge. First, he submits  that  the Judge was  wrong to  find  that  the consequences  of a conviction would not be out of proportion to the gravity of the offending and in particular that there was no evidence a conviction would have a disproportionate effect on Mr F  ’s ability to travel to the United States of America.  Mr F   has filed two affidavits in support.  He deposed to living in America in the mid 1990s on a rugby scholarship at the University of Atlanta in Georgia.  He also has had some business dealings with entities in the United States since then.  He produced some emails sent some years ago to exemplify the type of dealings.

[12]     However, the Judge was in my view correct in concluding as follows:

[14]      What is missing, however, is any indication at all, that I can rely upon,  that  this  conviction,  either  in  isolation  or  added  to  his  other convictions, would have any particular adverse affect upon his eligibility for entry into the United States.   There is simply no evidence as to what Immigration criteria the government of that country is currently applying and whether, indeed, that would preclude this man or not.

…

[16]      Even were I furnished with evidence which would be persuasive as to some impediment being placed upon his eligibility for travel to the United States, I am not persuaded that this is in the category of minor offending which would justify the Court in dealing with it by way of s 106 discharge.

[13]     In  this  respect  the  Judge  also  referred  to  Mr F  ’s  history  of  previous offending.  He has acquired a solid list of convictions dating back to 1986.  They are not, as Mr F   portrays them, merely misdemeanours.   Included among them are convictions for common assault, refusing a police officer’s request for a blood specimen, wilful trespass, resisting arrest and disorderly behaviour.

[14]     Mr Eastwood emphasises the  different  attitude  to  national  security which prevails in America following 9 September 2001.  He acknowledges that disclosure of this history would not assist an application by Mr F   for a visa to enter the United States.  However, he says that conviction on a charge of threatening to cause grievous bodily harm stands in a distinct category.  He may be correct, but he has not

satisfied me that Mr F  ’s latest conviction would alter the adverse impression created by his existing criminal history and the likelihood that that of itself, leaving aside the latest conviction, would disqualify Mr F   from obtaining a visa.

[15]     Second, Mr Eastwood submits that the Judge failed to give sufficient weight to  evidence  of  Mr F  ’s  psychiatric  condition.    He  has  produced  a  copy of  a confidential report provided by Dr Rui Mendel on 25 March 2008.  The psychiatrist concluded that Mr F  ’s conduct would have been affected by a combination of alcohol and medication at the relevant time.  His conclusion does, with respect, have a ring of truth.  But, as Ms Eastwood would understand, consumption of alcohol is not an excuse to criminal offending and was not advanced as such on this occasion. In any event, Mr F  ’s medical condition, aggravated as it was by his own decision to consume alcohol when taking medication, does not render the consequences of conviction disproportionate to the conviction.

[16]     Third,  Mr Eastwood  submits  that  the  Judge  erred  in  concluding  that Mr F  ’s crime did not fall into ‘the category of minor offending which would justify the Court in dealing with it by way of s 106 discharge’.   Mr Eastwood is correct  that  the  statutory discretion  is  not  limited  to  any particular  category of offending.  As already noted, the gravity of the offence is itself a critical threshold consideration.  However, I am not persuaded that the Judge’s description in any way undermines or vitiates his conclusion.  His sentencing notes read as a whole disclose his  firm  view  that  Mr F  ’s  culpability  was  serious  for  offending  of  a  not insignificant nature.

Decision

[17]     I appreciate Mr Eastwood’s assistance at short notice and I compliment him on  the  succinct  nature  of  his  submissions.    However,  Mr F    has  failed  by  a substantial margin to satisfy me that the Judge erred in exercising his statutory

discretion.  Mr F  ’s appeal against conviction is dismissed.

Rhys Harrison J