Fulop v Police - [2021] NZHC 707

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000512

[2021] NZHC 707

BETWEEN
CSILLA NIKOLETT FULOP

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 March 2021

Appearances:

N Silich for the Appellant

O Klinkum for the Respondent

Judgment:

31 March 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 31 March 2021 at 3:00 pm

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Westside Chambers, Auckland Meredith Connell, Auckland

FULOP v NEW ZEALAND POLICE [2021] NZHC 707 [31 March 2021]

Introduction

[1] Csilla Fulop appeals convictions for one charge of assault on a person in a family relationship1 and one charge of wilful damage.2 Ms Fulop sought a discharge without conviction pursuant to sections 106 and 107 of the Sentencing Act 2002 (the Act). Judge Pidwell declined the application and sentenced Ms Fulop to six months’ supervision with a condition that she complete a parenting course.3

[2] Ms Fulop appeals the refusal to grant a discharge without conviction on the grounds that the Judge did not give sufficient credit for the rehabilitative steps taken by her when assessing the gravity of the offending and that the Judge erred when she decided the consequences of conviction were speculative.

[3] Ms Klinkum, counsel for the Crown, submits the appeal should be dismissed as there were no errors in the Judge’s assessment of the gravity of the offending, nor in weighing the consequences of conviction. Ms Klinkum submits the consequences asserted by Ms Fulop are speculative and not out of all proportion to the gravity of the offending.

Facts

[4] The offending occurred on 6 October 2019, shortly after Ms Fulop had turned 26.

[5] Ms Fulop and the complainant were in a defacto relationship and living together with their four-month-old baby. They had a heated verbal argument when Ms Fulop discovered the complainant was having an affair. Ms Fulop began to physically assault the complainant by punching and head-butting his head and kneeing him in the groin. The complainant tried to lock himself in the bathroom to get away from her. She got into the bathroom and continued to assault him in the same manner. He then attempted to leave the address in his car. Ms Fulop hit him in the head and groin and jumped onto the back of the car so that he could not leave. The complainant

1      Crimes Act 1961, s 194A; maximum penalty of two years imprisonment.
2      Summary Offences Act 1981, s 11(1)(a); maximum penalty of three months imprisonment or fine not exceeding $2,000.
3      Police v Fulop [2020] NZDC 23212.

went back inside the house. Ms Fulop picked up the complainant’s phone and broke it in half. The complainant suffered a bleeding nose, bruising, and swelling across his nose as a result of the assault.

Law

[6] Section 106 of the Act provides that a court may discharge an offender without conviction. Under s 107, the discretion is to be exercised only if “the court is…

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 Fulop v Police

Details

AGLC: Fulop v Police [2021] NZHC 707
Case: [2021] NZHC 707
Decision Date: 31 March 2021

CaseChat Overview and Summary

The case of Fulop v Police is an appeal against the decision of Judge Pidwell who refused to grant the appellant, Csilla Fulop, a discharge without conviction. Fulop had been convicted of one charge of assault on a person in a family relationship and one charge of wilful damage. The appellant had sought a discharge without conviction under sections 106 and 107 of the Sentencing Act 2002. The appeal centred on the Judge's refusal to grant the discharge, with Fulop arguing that the Judge did not sufficiently credit the rehabilitative steps she had taken when assessing the gravity of the offending and that the Judge erred in deciding the consequences of conviction were speculative. The Crown argued that the appeal should be dismissed as there were no errors in the Judge's assessment of the gravity of the offending, nor in weighing the consequences of conviction.

The court found that the Judge did not err in her assessment of the gravity of the offending, taking into account the broader circumstances, including the completion of the Women’s Stopping Violence programme and the parenting though separation course. The court agreed with the Judge that the sustained nature of the offending and the injuries suffered by the complainant meant the overall assessment was at the low to mid-end of the scale. Regarding the consequences of conviction, the court held that while Ms Fulop did not need to prove the asserted consequences would happen, she must present evidence or supporting material to establish there was a real and appreciable risk the conviction would impact her employment. However, the court was not satisfied that the conviction would rule out Ms Fulop's employment as a jewellery appraiser. The court further held that even if Ms Fulop could not now obtain employment as a jewellery appraiser, it would not be a consequence out of all proportion to the gravity of the offending. The appeal was dismissed.

Orders