Fairley v Police - [2024] NZHC 1989

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

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 Fairley v Police

Details

AGLC: Fairley v Police [2024] NZHC 1989
Case: [2024] NZHC 1989
Decision Date: 18 July 2024

CaseChat Overview and Summary

Donald Fairley appeals his conviction and sentence for assault and wilful damage, following a Judge-alone trial in the District Court. Fairley argues that he was provoked, did not intend to cause damage, and that the consequences of conviction are disproportionate to the gravity of the offence. The appeal is limited to the Judge's dismissal of Fairley's application for discharge without conviction under s 106 of the Sentencing Act 2002.

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