Fowler v Police - [2024] NZHC 3275

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL

PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-000107

[2024] NZHC 3275

BETWEEN
LANA KYLIE FOWLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 November 2024

Appearances:

J W Howell for Appellant

E S R O’Brien for Respondent

Judgment:

6 November 2024

JUDGMENT OF VAN BOHEMEN J

[appeal against refusal to grant a discharge without conviction]

This judgment was delivered by me on 6 November 2024 at 12 pm. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Solicitors:
Crown Solicitor, Rotorua
Lance Lawson Limited, Mount Maunganui

FOWLER v NEW ZEALAND POLICE [2024] NZHC 3275 [6 November 2024]

[1] Lana Fowler appeals Judge C J Harding’s refusal to grant a discharge without conviction under s 106 of the Sentencing Act 2002.1

[2] Ms Fowler appeared for sentence in the District Court at Tauranga on 13 August 2024 having pleaded guilty to three charges of assaulting a child.2 The Judge declined Ms Fowler’s application for a discharge without conviction and sentenced her to six months’ supervision.

[3] Ms Fowler contends the Judge erred in refusing to grant a discharge without conviction because he:

(a)failed to place sufficient weight on the consequences of a conviction; and

(b)failed to properly consider the distinction between active charges and convictions.

Relevant background

[4]Ms Fowler is the mother of three children.

[5] The police summary of facts records that, during 2021 and 2022, Ms Fowler would occasionally hit two of her children, who were aged eight and 10, with a wooden spoon as a form of discipline.

[6] On 6 June 2023, after an argument between Ms Fowler and one of her children, then aged 10, Ms Fowler hit the child on her legs, causing her to curl up in a ball on her bed. Ms Fowler then hit her on her thigh.

[7] The children sustained localised redness, bruising and localised pain, causing them to cry.

1 Police v Fowler [2024] NZDC 19148 [Decision on appeal].
2 Crimes Act 1961, s 194(a). Maximum penalty two years’ imprisonment.

[8] Ms Fowler initially faced five charges for assaulting a child. However, on 25 June 2024, she pleaded guilty to three charges:

(a)one relating to the 6 June 2023 incident;

(b)one relating to an incident in 2021/2022 involving the same child, then aged eight; and

(c)one relating to an incident in 2021/2022 involving another child, then aged 10.

Evidence

[9] According to an affidavit sworn by Ms Fowler on 7 August 2024, Ms Fowler’s three children were uplifted by Oranga Tamariki by consent after the 6 June 2023 incident and were placed in the temporary care of Ms Fowler’s mother. The children returned to Ms Fowler’s full-time care in October 2023. Ms Fowler…

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 Fowler v Police

Details

AGLC: Fowler v Police [2024] NZHC 3275
Case: [2024] NZHC 3275
Decision Date: 6 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Lana Kylie Fowler appealed against the District Court's refusal to grant her a discharge without conviction under section 106 of the Sentencing Act 2002. Fowler pleaded guilty to three charges of assaulting a child and was sentenced to six months’ supervision. Fowler argued the District Court Judge erred in not granting a discharge without conviction as the consequences of a conviction were out of proportion to the gravity of her offending. The Crown argued the consequences of conviction were not out of proportion to the gravity of Fowler's offending.

The Court considered the legal principles and process for granting a discharge without conviction, as well as the submissions of both parties. The Court found that the District Court Judge had properly considered the evidence before him and that Fowler had not demonstrated the consequences of conviction would be out of all proportion to the gravity of her offending. The Court found the consequences for Fowler, while serious, were not out of proportion to the offending and dismissed Fowler's appeal.

Orders