F v Police HC Rotorua CRI 2007-463-128

[2008] NZHC 421

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-463-128

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 April 2008

Appearances: P T Birks for Appellant

F Pilditch and R W Maze for Respondent

Judgment:      2 April 2008

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr P T Birks, Barrister, Rotorua

Mr F Pilditch / Mr R W Maze, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

F V NEW ZEALAND POLICE HC ROT CRI 2007-463-128  2 April 2008

[1]      The appellant, Mr F  , was charged in the District Court with common assault relating to an admitted assault on his partner.   He was convicted and discharged.  He appeals from this saying, in essence, there was an error of process.

[2]      When he first appeared the District Court Judge indicated that on a guilty plea followed by engagement in a restorative justice programme there was a possibility of discharge without conviction under s 106 of the Sentencing Act.  This, implicitly,  was  because  of  all  the  circumstances  disclosed  in  relation  to  the offending.  And what I say was implicit there appears from the final sentencing notes when sentence was imposed on 7 May.  The Judge said that “the offending is at the lower end of the scale”.

[3]      Following the initial appearance in the District Court on 2 April 2007 Mr F   went to Mana Social Services to make arrangements for a restorative justice programme.  There is then some difference between Mr F   and the information provided by Mana Social Services as to what has happened.  Mana Social Services have advised the Court, and I accept, that a telephone call was made arranging an appointment for Mr F   to attend a meeting on 10 April 2007 (I interpolate here that the affidavit records 10 March 2007, but I accept that there were simple errors as to the date in the affidavit).

[4]      Mr F   says that he does not recall receiving a telephone call about the appointment date.  However, what I have now been informed of – but it seems the District Court Judge was not told about – is that Mr F   suffers from attention deficit hyperactivity disorder, and this could very well account for his failing to absorb information conveyed in the telephone call.  Nevertheless, he did not follow up with Mana Social Services before the next hearing in the District Court on 7 May

2007.

[5]      On that date it appears that the learned District Court Judge was given no information as to what had occurred.  And there is one other event that occurred of importance, which I will come to in a moment, concerning the attendance of Mr F   and his partner at Relationship Services for counselling.  As far as the Judge

was concerned, there had simply been a failure by Mr F   to go through the restorative justice programme and he gave a decision, the full extent of which is as follows:

The offending is at the lower end of the scale.  It is a pity that you could not have managed to go through the restorative justice programme.   On this occasion, you are convicted and discharged.

[6]      Mr Birks, who appeared for Mr F   on this appeal, did not appear in the District Court on 7 May, but has advised me from the bar – and there is no challenge on behalf of the respondent – that no relevant information was given to the Judge as to the intervening events or Mr F  ’s attention deficit hyperactivity disorder.

[7]      The  one  other  matter  that  occurred  before  7  May  of  some  significance, touched on above, is that Mr F   had taken the initiative with his partner to begin counselling with Relationship Services.  In that regard I have received a copy of a report from the Relationship Services counsellor regarding attendances of Mr F   and his partner on 30 April 2007, before the final District Court hearing, and then on four subsequent dates.   I have also been  advised  that  the  counselling has  been beneficial.

[8]      I am satisfied that there was no error of principle in any respect by the District Court Judge.   However, a successful appeal is not dependent solely on demonstrating an error of principle.  An appeal may also be allowed – as the Crown has indicated in its helpful submissions through Mr Maze – that an appeal may also be allowed where there are exceptional circumstances, as well as on other grounds: see R v Radich [1954] NZLR 86.

[9]      This  is  a  case  where  there  are  exceptional  circumstances,  and  this  was accepted by Mr Maze on behalf of the respondent.  These exceptional circumstances are the matters I have already referred to.  In addition, I was informed by Mr Birks that where a restorative justice programme is undertaken with offending of this nature, family counselling services may very well be engaged or perhaps the matter may even be referred fully to the counselling services.  Unfortunately, none of these matters were put before the District Court Judge at the time of sentencing on 7 May.

[10]     There was discussion as to whether the case should be remitted back to the District Court to enable a restorative justice programme to be embarked on now.  Mr Maze has carefully taken the trouble to make inquiries of the director of Mana Social Services as to whether that would be productive.  The director indicated that at this stage, with the passage of time, it probably would not be helpful.  The consequence of that, amongst other things, is that the District Court could not now be assisted with the full oral report that would normally be available from the director of Mana Social Services in respect of the involvement of the offender in the restorative justice programme and the outcome.

[11]     For these reasons, and without opposition from the respondent, and because of the quite exceptional circumstances here, and again emphasising that there was no error by the District Court Judge, I propose to allow the appeal and substitute a discharge without conviction.

[12]     In doing this I do need to emphasise what I have just mentioned briefly, and that is that this has occurred without either the District Court or this Court having the real benefit that comes from the full engagement in a restorative justice programme, and the real assistance that is provided to the District Court by the report that is provided.  It may very well be – and I am sure it is in numbers of cases – that the report is such that the Court is bound to enter a conviction and often impose an appropriate penalty.  However, I am prepared to accept in this case – and again, as I say, because of the exceptional circumstances – that the course I propose is the appropriate one.

[13]     The formal decision therefore is that the appeal is allowed.  And Mr F  , on the charge, is discharged without conviction.

Peter Woodhouse J