Gaunt v Police - [2016] NZHC 2505

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-61 [2016] NZHC 2505

JAMIN GAUNT

v

NEW ZEALAND POLICE

Hearing: 4 October 2016

Appearances:

J P Miller for the Appellant
M L Wong for the Respondent

Judgment:

20 October 2016

JUDGMENT OF CULL J

Introduction

[1] Mr Gaunt is a 22 year old father who was found guilty of one charge of common assault, namely spitting, under s 196 of the Crimes Act 1961. The charge arose from an incident in a domestic dispute between Mr Gaunt and his then partner, Ms Livingston. Following a Police response, Mr Gaunt was charged with two charges of male assaults female and the charge of common assault by spitting, all arising out of the same incident.

[2] After a Judge-alone trial on 6 July 2016, Mr Gaunt was acquitted of the two male assaults female charges and convicted of common assault by spitting.

[3] Mr Gaunt sought to apply for a discharge without conviction. Following the announcement of the verdicts, Mr Gaunt applied for a discharge without conviction, pursuant to s 106 of the Sentencing Act 2002. The application was declined and
Mr Gaunt was convicted and sentenced to come up, if called upon, within 12

JAMIN GAUNT v NEW ZEALAND POLICE [2016] NZHC 2505 [20 October 2016]

months. Mr Gaunt now appeals against the refusal to grant a discharge without conviction.

Facts

[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 assaulting Ms Livingston by throwing her against a wall, back-handing her across her face and spitting in her face. He was charged with two charges of male assaults female, contrary to s 194(b) of the Crimes Act and one charge of common assault by spitting, contrary to s 196 of the Crimes Act. The latter offence carries a maximum penalty of one year’s imprisonment.

[5] Mr Gaunt pleaded not guilty to all three charges and the matter came before Judge Thorburn, as a Judge-alone defended hearing. In his oral judgment, Judge Thorburn described the nature of the allegations and counter-allegations from each of Mr Gaunt and Ms Livingston. Mr Gaunt was described as angry, ripping down curtains and advancing towards Ms Livingston. Ms Livingston kept trying to push him away and he threw her up against the wall with her left shoulder hitting the wall. Mr Gaunt spat in Ms Livingston’s face and Ms Livingston responded similarly. Ms Livingston alleged that Mr Gaunt hit her across the face a number of times with the back of his hand and Mr Gaunt alleged that Ms Livingston threw a piece of the vacuum cleaner at him and that Ms Livingston came at him again and again…

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.

Keep reading for free

Create a free CaseChat account to read Gaunt v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 2505
Decision Date: 20 October 2016

CaseChat Overview and Summary

In Gaunt v Police, Mr Gaunt, a 22-year-old man, was convicted of common assault by spitting under the Crimes Act 1961. The incident arose from a domestic dispute between Mr Gaunt and his then partner, Ms Livingston. Following a Judge-alone trial, Mr Gaunt was acquitted of two charges of male assaults female but was convicted of common assault by spitting. He sought a discharge without conviction under s 106 of the Sentencing Act 2002, which was declined by the Judge. The appeal was brought before the High Court to determine whether the refusal to grant a discharge without conviction was justified.

The legal issues before the court were whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. This involved assessing the gravity of the offending, considering both aggravating and mitigating factors, and then evaluating whether the consequences of a conviction were disproportionate to the offence. Mr Gaunt argued that the spitting was at the lower end of what constitutes an assault, given the circumstances of the altercation and the lack of physical harm. He also submitted that his previous good character and remorse should be taken into account. The Crown argued that the consequences of a conviction were not disproportionate, particularly in terms of future employment prospects and the Family Court proceedings.

The court found that the gravity of the offending was minor, given the nature of the assault and Mr Gaunt's previous good character and remorse. However, the court was not satisfied that the consequences of a conviction were out of all proportion to the gravity of the offence. The court noted that the conviction, with no other penalty, marked the court's disapproval of the conduct but did not result in a significant barrier to future employment or impact the Family Court proceedings significantly. The court concluded that the entering of a conviction with no other penalty, alongside being sentenced if called upon within 12 months, was appropriate in these circumstances.

The appeal was dismissed, and the decision to refuse a discharge without conviction was upheld.

Orders