Fairley v Police
[2024] NZHC 1989
•18 July 2024
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
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
[10] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. Section 107 provides that a court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3
[11] It is well settled that there is a three-stage test when considering an application for a discharge without conviction.4 First, when considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offence and the offender. Secondly, the Court must consider 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 be satisfied that there is a real and appreciable risk that such consequences could occur.5 Finally, if they are out of all
2 Summary Offences Act 1981, ss 9, 11(1)(a) and 21.
3 Sentencing Act 2002, s 107.
4 Z (CA447/12) v R [2012] NZCA 599 at [27].
5 DC (CA47/2013) v R [2013] NZCA 255 at [43].
proportion, the Court must still consider whether it should exercise its residual discretion to grant a discharge although it would be rare for the Court not to exercise its residual discretion if the preconditions are satisfied.
[12] An appeal against a refusal to discharge without conviction is an appeal against both conviction and sentence.6 To the extent that the appeal relates to the court's weighing of the consequences of conviction against the gravity of offending, the appeal proceeds by way of rehearing. The appellate court makes its own assessment of whether the criteria for discharge without conviction are met.7
[13] Unless satisfied that a miscarriage of justice has occurred, this Court must dismiss the appeal.8 In the present context a miscarriage of justice means a material error has occurred or that the Judge erred in applying the principles for discharging an offender without conviction.9
District Court decision
[14] The Judge considered that Mr Fairley’s response to his perceived grievance with the victim was disproportionate. Both the push and the grabbing of the victim’s mask constituted assault by an intentional application of force. In respect of the wilful damage charge, the Judge had no trouble finding that Mr Fairley kicked the back of the vehicle, causing a dent.
[15] The Judge accepted that the offences were not particularly serious. However, even taking this into account, he considered that the offending was “unacceptable by all standards”. The Judge noted that Mr Fairley has a very limited criminal history, consisting only of traffic offences, and that he acknowledges he has underlying issues with anger which may stem from a previous concussion.
6 Jackson v R [2016] NZCA 627; and Ovtcharenko v Police [2017] NZCA 65 at [5].
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; R v Hughes
[2008] NZCA 546, [2009] 3 NZLR 222 at [11].
8 Criminal Procedure Act 2011, s 232(3).
9 Jackson v R, above n 6, at [12].
[16] The Judge’s reasoning on sentencing is encapsulated in the following paragraphs of his oral judgment:10
[44] Mr Fairley has a limited criminal history. There are traffic matters, otherwise, there is very little. He acknowledges that there have been issues of anger that he is endeavouring to deal with. It may be there might be other factors underlying it, such as concussion from an earlier occasion. I am also conscious that what would have been the most important mitigation that could have reduced the gravity of the offending is having these matters resolved without there being a trial, without witnesses have (sic) to give evidence. That mitigation does not exist.
[45] It seems to me that while no great sentence per se is required, the appropriate punishment, if you like, is the noting of a conviction. This is unacceptable behaviour and I do not see there is anything disproportionate in that. What I propose to do is on the charge of intentional damage there will be the order to pay $600 reparation forthwith and that is all. There will still be a conviction recorded which will be the penalty.
[46] On the charge of assault, which is a come up if called upon within six months. If there is no further issue within six months, that is the end of it. There is no other punishment, but there is a record of there having been a conviction under the Summary Offences Act. That is a sufficient punishment in my view and reflects the fact that the matter ended up being here to be resolved thereby lacking any further mitigation.
The appeal
[17] The grounds of Mr Fairley’s appeal were initially that the conviction was contrary to the evidence given in Court.11 His view of events was that the scuffle was “two way”, and that there was no evidence that the damage was wilful. As discussed, these grounds gave way to a challenge focused on the factors contained in s 107 of the Act.
[18] Mr Fairley argues that the gravity of his offending pales in comparison to other instances of assault offending where individuals have been discharged without conviction. He provided to the Court media reports of what he considers to be comparative instances of offending where discharges were granted. He says that he travels with his partner and young daughter, and as he approaches retirement age the implications of a conviction on his ability to travel impose a significant burden on him
10 Police v Fairley, above n 1.
11 Mr Fairley has not provided written submissions but has provided screenshots of four online articles where offenders were discharged without conviction to support his case.
and his family.12 Mr Fairley has further concerns about reputational impact in that people may assume his offending is of a serious scale due to his lack of a discharge without conviction when discharges have been granted in cases of more serious offending.
Determination
[19] I do not consider that the Judge overstated the gravity of the offending which he regarded as “not the most serious charges in the world”.13 I apprehend that, in context, the Judge accepted that the gravity was relatively low.
[20] The travel consequences that Mr Fairley refers to are undefined and vague. It is no surprise that the Judge did not refer to them in the circumstances. The Court of Appeal has set out the usual requirements when travel concerns are raised as a reason for a discharge without conviction. Those requirements speak to a level of specificity and evidence which is lacking in this instance:14
[23] It is perhaps as well to say something about the evidence that an applicant ought to adduce if he or she is to invoke foreign law and practice in support of a discharge.
[24] The court must be “satisfied” that the consequences of conviction are out of all proportion to the gravity of the offence. It is settled law that an applicant for a discharge need only point to a real and appreciable risk that adverse consequences will ensue. That standard recognises that the court is being asked to predict what will happen in the future. So, for example, [the appellant] need only point to a real and appreciable possibility that he will need to travel overseas for work.
[25] It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require expert evidence if they are not agreed and cannot be established in any other way.
[21] It follows that speculative future travel plans will not ordinarily be sufficient to justify a discharge without conviction.
12 Mr Fairley has not provided evidence on this point, but submits that many countries require a statement on any criminal convictions, which may lead to additional processing, being taken aside, being questioned, or being refused a visa.
13 Police v Fairley, above n 1, at [43].
14 Edwards v R [2015] NZCA 583 at [26] (footnotes omitted).
[22] Mr Fairley put to the Court that the gravity of his offending pales in comparison to other instances of assault offending where offenders had been discharged without conviction. However, all cases involving applications for discharge are intensely fact sensitive to the extent that comparisons are not often useful. That is the case here.
[23] Mr Fairley also referred to the reputational impact that a conviction would cause. This is nevertheless within the ordinary consequences of a conviction and not out of all proportion to the gravity of the offence, as s 107 of the Act necessitates.
[24] I consider there is no evidence that the effects of conviction are out of all proportion to the offending. Mr Fairley displays a lack of insight into the seriousness of his offending in that he still maintains that his overreaction was the result of provocation. I do not consider that the Judge made any material error or that there was a miscarriage of justice.
[25] The test in s 107 of the Act is not satisfied and so the residual question of the exercise of discretion under s 106 does not arise.
Outcome
[26]I dismiss the appeal.
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Walker J
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