IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000221
[2024] NZHC 1989
BETWEEN DONALD FAIRLEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 June 2024 Appearances:
Appellant in Person
M Nash for the Respondent
Judgment:
18 July 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 18 July 2024 at 3 pm Registrar/Deputy Registrar
Solicitor:
M Nash, Meredith Connell, Auckland
Copy to:
Donald Fairley
FAIRLEY v POLICE [2024] NZHC 1989 [18 July 2024]
Introduction
[1] Following a Judge-alone trial in the District Court, Donald Fairley was found guilty of assault and wilful damage.1 On 8 May 2024, Judge N J Sainsbury declined to discharge Mr Fairley without conviction under s 106 of the Sentencing Act 2002 (the Act). He then ordered him to come up if called within six months on the assault charge and to pay $600 in reparation on the wilful damage charge.
[2]Mr Fairley now appeals his conviction and sentence.
[3] At the hearing he responsibly acknowledged that his appeal was limited to the Judge’s dismissal of his application for discharge without conviction. His submissions were directed to that issue. He argued that he had been provoked by someone queue jumping; that he did not intend to cause damage to the car; and that the consequences of conviction are disproportionate to the gravity of the offending.
[4] The respondent, while acknowledging that the offending was low level, opposes the appeal on the basis that there is no evidence of disproportionate consequences.
Background
[5] Mr Fairley is 64 years of age with a clean criminal record apart from traffic offences.
[6] On 26 May 2022, Mr Fairley was with his young daughter in the vicinity of a bakery on Dominion Road. Mr Fairley became aggrieved at what he perceived to be someone cutting in front of him in the queue. He confronted that person. The ensuing verbal altercation turned into a physical altercation when Mr Fairley pulled that individual’s mask off his face and pushed him with enough force to knock him backwards. The victim kicked Mr Fairley and ran off. Mr Fairley’s version of events was that the victim was the aggressor and was not acting in retaliation.
1 Police v Fairley [2024] NZDC 10495.
[7] Mr Fairley chased the victim down the street before returning to the bakery where he had left his young daughter. He confronted two women who were comforting his daughter. He was aggressive and verbally abusive towards them. Another witness took a photograph of Mr Fairley as he went to leave. It appears that the taking of the photograph prompted Mr Fairley to kick the back of that individual’s car, which was parked behind him.
[8] Mr Fairley was charged with assault, wilful damage and intimidation.2 He was acquitted of the charge of intimidation.
Relevant principles
[9] An application for discharge without conviction is governed by s 106 of the Act, which provides as follows:
106 Discharge without conviction
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- Fairley v Police [2024] NZHC 1989
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- [2024] NZHC 1989
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CaseChat Overview and Summary
The Court must consider the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offence. The Court must also consider whether it should exercise its residual discretion to grant a discharge. Fairley's arguments focus on the perceived disproportionality of the consequences of conviction, including the impact on his ability to travel and reputational damage.
The Judge accepted that the offences were not particularly serious but considered that the offending was unacceptable by all standards. He noted Fairley's limited criminal history and his acknowledgment of underlying issues with anger. The Judge ordered Fairley to pay $600 in reparation for the wilful damage and recorded a conviction on the assault charge with a requirement to come up if called within six months. The Judge found that the consequences of conviction were not out of all proportion to the gravity of the offence.
The Court found that the Judge did not overstate the gravity of the offending and that Fairley's concerns about the consequences of conviction were speculative and not sufficiently substantiated. The Court held that there was no evidence that the effects of conviction were out of all proportion to the gravity of the offence. The appeal is dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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