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Fielding v R

Fielding v R

Case [2019] NZHC 1472 26 June 2019

Appeal

Miscarriage of Justice

Discretionary Discharge without Conviction

Causation

Mental Health

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-19

[2019] NZHC 1472

BETWEEN
ALISOHN JOAN FIELDING

Appellant

AND

THE QUEEN

Respondent

Hearing: 11 June 2019

Appearances:

Appellant in person with a McKenzie Friend D M Helm for the Respondent

Judgment:

26 June 2019

JUDGMENT OF CULL J

[1] Ms Fielding appeals against her conviction and sentence for wilful trespass, on the grounds that the District Court Judge was wrong to refuse her a s 106 discharge without conviction. The District Court convicted Ms Fielding,1 and ordered her to come up for sentence if called upon within a period of nine months.2

[2] Ms Fielding appeals against her conviction and sentence on the grounds that a miscarriage of justice has occurred, and the consequence of a conviction is out of proportion to the gravity of the offending.

[3] The Crown opposes the appeal. The Crown submits there was no material error by the District Court Judge in entering a conviction in the circumstances, and the sentence imposed was appropriate and not manifestly excessive.

1 Police v Fielding [2019] NZDC 3359.
2 R v Fielding [2019] NZDC 6898.

FIELDING v R [2019] NZHC 1472 [26 June 2019]

Factual background

[4] Ms Fielding’s first appeal to the High Court against her initial conviction and sentence was successful.3 Collins J quashed her conviction and remitted the case to the District Court, for a further hearing. The background to this case has been described succinctly by Collins J as follows:

[2] On 13 January 2018, Ms Fielding, who had previously been in a relationship with the complainant, trespassed onto his property. The complainant was asleep at the time, but Ms Fielding’s presence was recorded on CCTV footage. Ms Fielding had previously been served with a notice under the Trespass Act 1980 requiring her to keep off the complainant’s property.

[3] The CCTV footage shows a person disguised in a white top with a hood and a scarf covering their face. Around 6.42 am, this person emerged out of some bushes on the side of the driveway to the complainant’s property and placed a note under the windscreen wiper of a vehicle belonging to the complainant’s then girlfriend. The person then left through the same bush area.

[4] About 10 minutes later, the same person returned to move some furniture from the complainant’s deck.

[5] About 15 minutes after that, the same person peered into a window after they had been standing some time looking at the property.

[6] Three minutes later, the person threw a plant onto the complainant’s front porch.

[7] Four minutes after that, the person removed a note that had been left for a courier and opened the front door, leaving it slightly ajar.

[5] Ms Fielding has no other previous convictions. Since the offending, she has been on medication for a range of mental illnesses. Ms Fielding submitted initially that she was sexually assaulted by the complainant before the offending.4 She…

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 Fielding v R

Details

AGLC: Fielding v R [2019] NZHC 1472
Case: [2019] NZHC 1472
Decision Date: 26 June 2019

CaseChat Overview and Summary

Ms Alisohn Joan Fielding appealed against her conviction and sentence for wilful trespass, arguing that the District Court judge was wrong to refuse her a discharge without conviction under s 106 of the Sentencing Act 2002. The appeal centred on whether a miscarriage of justice had occurred, and whether the consequences of a conviction were disproportionate to the gravity of the offending. The Crown opposed the appeal, arguing that there was no material error by the District Court judge in entering a conviction and that the sentence imposed was appropriate. The court found that there was a miscarriage of justice because the District Court judge had not been presented with all the relevant mitigating factors, and had not sufficiently weighed the consequences of a conviction on Ms Fielding's employment prospects, particularly given her age and health. The court accepted that the consequences of a conviction for Ms Fielding would be out of all proportion to the gravity of the offence. The appeal was allowed, the conviction was quashed, and Ms Fielding was discharged without conviction under s 106 of the Sentencing Act 2002.

Orders