G v Police HC Auckland CRI 2007 404 319

[2008] NZHC 2173

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007 404 319

BETWEEN  G

Appellant

ANDPOLICE Respondent

Hearing:         25 February 2008

Counsel:         David Young for Appellant

Michael J Hodge for Crown

Judgment:      25 February 2008

[ORAL] JUDGMENT OF WILLIAMS J

A        Leave to appeal out of time is granted.

BAppeal against sentence allowed.  The matter is remitted to the District Court for appellant to be re-sentenced.

Solicitors:

Crown Solicitor, Auckland

Email:  [email protected]

Copy For:

David G Young, P O Box 105 310 Auckland

Email:  [email protected]

Judge Ryan, North Shore District Court

G V POLICE HC AK CRI 2007 404 319  25 February 2008

[1]      The outcome of this appeal is, unfortunately, a need for the matter to be remitted to the District Court in order that the appellant, Mr G  , can be re- sentenced.

[2]      The position concerning the appeal is, first, that the appeal was lodged out of time.   Properly, there is no objection by the Police in that regard and accordingly leave to appeal will be granted without opposition.

[3]      As  a  result  of  a  brief  adjournment  during  the  hearing  and  consultation between counsel, it has been agreed that the appropriate course is to allow the appeal in the sense of remitting the matter to the District Court for re-sentencing under s

131 of the Summary Proceedings Act 1957.

[4]      In part, that course is followed so that the District Court – very much more experienced on a day to day basis than this Court with matters of the type in issue – can re-sentence Mr G   with a full knowledge of the background and, in part, so as to preserve any rights of appeal that may be thought appropriate following that process.

[5]      That is a slightly unsatisfactory outcome of the appeal because this is now a matter which has occupied the courts since September 2007.

[6]      Mr G   was charged that on 11 September 2007 he was unlawfully carrying an imitation firearm and was guilty of theft.  He pleaded guilty to both those counts on  24  September  2007.     On  that  occasion,  as  on  his  first  appearance  on

17 September, he had been represented by the Duty Solicitor then undertaking those duties in the North Shore District Court.  The outcome of the sentencing by Judge Ryan was that Mr G   was convicted and fined $100 and costs of $130 on the theft, and convicted and fined $250, again with costs of $130, on the charge of carrying an imitation firearm.

[7]      The charges arose from an incident in which Mr G   was driving a friend about the North Shore streets.  He had an imitation firearm in the glove box of his car.  He showed it or gave it to his passenger, who fired a number of BB shots out the  window.    Understandably enough,  members  of  the  public  who  were  in  the vicinity, were alarmed by what had occurred and advised Police.   Within a few minutes, Mr G   was approached by the Police.   He was then at home.   He acknowledged what had occurred and volunteered to the Police another imitation firearm which he had apparently picked up out of a disused locker at his part-time work.

[8]      Part of the nub of the present appeal is that the Duty Solicitor overlooked advising Mr G   that an application might be made to the District Court under ss 106 and 107 of the Sentencing Act for discharge without conviction.  Checks have been made with the Police Prosecutor on the day and it seems no mention was made in Court when Mr G   was sentenced of the possibility of a s 106 discharge without conviction.  Certainly there is no mention of that possibility in the sentencing notes.

[9]      That is understandable enough, given the great pressure under which duty solicitors work.  Their work is ill-remunerated.  It is carried out in haste.  They do the very best they can and, indeed, the passage of business through the District Court would be rendered much more difficult without their assistance.   But they do not have the opportunity to take full instructions from persons they advise and on this occasion it seems likely that the possibility of a s 106 discharge without conviction was not mentioned to Mr G  .

[10]     He  says,  in  an  affidavit  filed  in  this  Court,  that  had  he  known  of  the possibility of a discharge without conviction he would have instructed the Duty Solicitor to pursue that course or would have sought an adjournment in order to instruct counsel privately and ensure the full details of his personal situation were before the Court so that the sentence imposed would be the appropriate one.

[11]     In light of the agreed outcome, it would be superfluous for this Court to embark on a  detailed  consideration  of  Mr  G  ’s  personal  circumstances.    It  is enough to say that the material currently before the Court indicates that it might be

arguable that the consequences of a conviction being entered against him as a result of what occurred are significantly disproportionate to what took place.  Mr G   also has what would appear to be quite significant personal circumstances which could also be advanced in support of a s 106 discharge without conviction.

[12]     In addition, it would appear that although he may have disclosed the pistol to his passenger in the car, though he was guilty of the offence of unlawfully carrying the imitation firearm, he could have been no more than a secondary party to its discharge.  Further in his support is the fact that he volunteered the second imitation firearm to the Police without being asked for it.

[13]     All in all, therefore, his position is such that a discharge without conviction could not be ruled out once all the facts of the matter are put before the District Court and the Judge is fully informed on what is the appropriate outcome.  And that means the proceeding preserves Mr G  ’s appeal rights if he remains dissatisfied with the outcome.

[14]     In view of all of that, though it is regrettable that the life of this matter has to be prolonged, with the agreement of counsel the appeal is allowed to the extent of remitting the matter to the District Court for re-sentencing.   There will be orders accordingly in that regard.

…………………………..

WILLIAMS J.

25 February 2008