On 6 July 2016 the appellant, Jamin Gaunt, was convicted in the District Court at Wellington of one charge of common assault for spitting.[1] In a Judge-alone trial before Judge Thorburn, Mr Gaunt also faced two charges of male assaults female arising out of the same incident with the same complainant, with whom Mr Gaunt was in a relationship at the time. Those two charges were dismissed by Judge Thorburn on the basis of self-defence.[2] However, the Judge did not accept Mr Gaunt’s explanation that the spitting was also used as self-defence when normal physical attempts had not deterred the complainant from attacking him, and accordingly found him guilty of the common assault charge.[3]
[1]Crimes Act 1961, s 196.
[2]New Zealand Police v Gaunt [2016] NZDC 14604 at [36]–[38].
[3]At [39].
Counsel for Mr Gaunt made an oral application for a discharge without conviction under s 106 of the Sentencing Act 2002. Judge Thorburn declined the application without giving reasons, and convicted and sentenced Mr Gaunt to come up if called upon within 12 months.
He appealed his conviction and sentence to the High Court on the basis that the Judge should have granted a discharge or at least a further written opportunity to do so. Cull J dismissed the appeal on 20 October 2016.[4]
Leave to bring a second appeal was granted by this Court on 12 May 2017.[5] The basis of the grant of leave is whether a miscarriage of justice occurred as a result of:[6]
(a)the Judge failing to take account of the complainant’s act in spitting at Mr Gaunt in assessing the gravity of the offending;
(b)the Judge failing to take account of Mr Gaunt’s difficult personal circumstances in assessing the effect of conviction on his employment prospects; and
(c)the effect of these two factors in the proportionality assessment under s 107 of the Sentencing Act.
The facts are conveniently summarised in Cull J’s judgment:[7]
[4] On 20 January 2016, Mr Gaunt was at home with his then partner, Ms Livingston and their one year old daughter. It was not a happy evening. At about 10.00 pm, a verbal argument took place between Mr Gaunt and Ms Livingston over his family’s disapproval of their relationship. The argument led to physical assaults, as a consequence of which, Mr Gaunt was charged with…
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.
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AGLC
Gaunt v Police [2017] NZCA 590
Case
[2017] NZCA 590
Decision Date
CaseChat Overview and Summary
The appeal in Gaunt v Police was heard by Brown, Courtney and Toogood JJ. The appellant, Jamin Gaunt, was convicted of common assault for spitting, while two charges of male assaults female were dismissed on the basis of self-defence. The Court of Appeal was tasked with determining whether a miscarriage of justice had occurred in relation to the conviction, focusing on whether the Judge failed to consider the complainant's conduct, the appellant's personal circumstances, and the proportionality of the conviction. The Court found that the lower courts erred in their assessment by not sufficiently considering the complainant's actions and the significant impact a conviction would have on the appellant's employment prospects, particularly given his existing hearing difficulties.
The Court held that the spitting incident, while reprehensible, was at the lowest level of seriousness and barely warranted criminal intervention. The appellant's difficult personal circumstances and the potential impact on his employment prospects warranted a discharge without conviction under s 106 of the Sentencing Act 2002. The Court of Appeal allowed the appeal, quashed the conviction, and discharged the appellant without conviction. This decision highlights the importance of a balanced assessment of both the gravity of the offence and the potential consequences of a conviction, particularly in cases involving minor offences and vulnerable individuals.