George v Police

[2024] NZHC 3923

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2024-463-0046

[2024] NZHC 3923

BETWEEN

STEVEN NICHOLAS VASSOS EVANGELOS GEORGE
Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

On the papers

Counsel:

M J L Olphert for Applicant

L M McMaster and I A A Mara for Respondent

Judgment:

19 December 2024

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 19 December 2024 at 11 am

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Olphert Law, Rotorua

Gordon Pilditch, Rotorua

GEORGE v POLICE [2024] NZHC 3923 [19 December 2024]

[1]                 This application for leave to appeal was called before me on 1 October 2024. Matters did not proceed that day, so that the applicant, Mr George, could seek legal advice, which he has now done.

Introduction

[2]                 Following a Judge-alone trial in October 2007, Mr George was convicted of one charge of common assault.

[3]                 Mr George now applies for leave to file an appeal (well) out of time and, if leave is granted, seeks to be discharged without conviction. Counsel have no objection to my determining the matter on the papers.

[4]                 As Crown counsel, Mr Mara, says in his written submissions, s 397 of the Criminal Procedure Act 2011 provides that any appeal in a proceeding commenced prior to 1 July 2013 is to be determined under the law then in force.   At the time   Mr George was convicted, any appeal was governed by the Summary Proceedings Act 1957 (“SPA”). This required that any notice of appeal be filed within 28 days of sentence, subject to any extension of time which might be granted in the interests of justice (see s 123 of the SPA).

Background

[5]                 The charge of assault arose from a confrontation between Mr George and a neighbour, in the course of which Mr George punched the neighbour. It appears this was a single punch and not a particularly serious incident.

[6]                 Mr George pleaded not guilty to the charge, but was convicted following a Judge-alone trial. Mr George then dismissed his legal counsel. In an affidavit sworn on 29 October 2024, and filed in support of this application, Mr George states that his lawyer failed to advise him of the possibility of applying for a discharge without conviction.1

1      It is, of course, not possible for counsel who has been dismissed to advise of anything.

[7]                 Mr George represented himself at sentencing in December 2007. He did not seek a discharge without conviction. The fact that he did not do so does not preclude him seeking a discharge on appeal.

[8]                 In accordance with the recommendation of Corrections, Mr George was sentenced to 160 hours of community work. Mr George completed the community work in February 2008, without incident, and paid $118 in reparation.

Application for extension of time

[9]In [15] of Ellis v R, the Supreme Court said:2

... The touchstone [in determining an application to extend time] will always be the interests of justice. Relevant factors to be taken into account include whether the delay is adequately explained and whether there are compelling reasons to extend time. In considering whether to grant the application, the Court may have regard to the seriousness of the charges, the strength of the proposed appeal, the impact on others and prejudice to the Crown. Also relevant is whether fresh evidence has come to light.

[10]              Since 2014, Mr George has been an “eligible individual” in the sense of the Criminal Records (Clean Slate) Act 2004. The effect of this is that since 2014, at least in New Zealand, Mr George has been deemed to have no criminal record. However, Mr George is now wishing to retire overseas. The impact of the conviction on his wishes in this regard has prompted this application.

[11]              In addition, in the documents he filed initially with the Court, Mr George stated that he had only recently been advised that it would have been open to him to seek a discharge without conviction at his sentencing in 2007. I anticipate that Mr George would have sought the discharge had he been aware in 2007 that it was open to him to do so and, on my reading of the evidence and documents before me, he would have had reasonable prospects of success.

[12]              The Crown opposes the application for an extension of time. As Crown counsel submits, there is a need for finality in litigation and this application is made

2      Ellis v R [2019] NZSC 83 (footnotes omitted).

some 17 years out of time. The Crown also submits that the delay is not sufficiently explained.

[13]              Despite the Crown’s opposition and what is, by any measure, inordinate delay, I propose to grant the extension sought. Doing so will not affect any third party. In my view, it is apparent from the material before me that this application has been prompted by the consequences of conviction Mr George has more recently experienced. I also consider the merits of the appeal are such that the interests of justice require leave be granted.

Legal principles

[14]              The Court may grant a discharge without conviction if satisfied the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.3

[15]              The accepted course is to assess the gravity of the offending having regard to all relevant aggravating and mitigating factors; identify the direct and indirect consequences of conviction of which there is a real and appreciable risk; and determine whether those consequences are out of all proportion to the gravity of the offending. The Court may grant a discharge without conviction only if satisfied those consequences are out of all proportion to the gravity of the offending.

Gravity of the offending

[16]              Taking into account the matters referred to in [5] and [6] above, I assess the gravity of Mr George’s offending as low. I note also that Mr George had not offended prior to 2007, and he has not offended since.

Consequences of conviction

[17]              Information as to the consequences of conviction is before me in the affidavit of Mr George referred to above. This affidavit followed receipt of the Crown’s

3      Sentencing Act 2002, ss 106 and 107.

submissions, but the Crown has advised that it does not wish to respond to the evidence.

[18]              Mr George emigrated from the United Kingdom to New Zealand in 2004, when he was in his mid-30s.

[19]              Now in his mid-50s, Mr George, who is not in good health, wishes to retire overseas. Doing so will mean he is closer to his extended family who live in Europe, and in particular to his daughter (and only child) who lives in France.

[20]              In 2018, Mr George, who is of Greek descent, purchased a residential property in Greece with a view to basing himself there in his retirement. In his affidavit, Mr George states he wishes to apply to the Greek immigration authorities to be allowed to live in Greece permanently, and he has been investigating his prospects of success in doing so.

[21]              On the face of what appears to be information downloaded from many websites, and annexed to his affidavit, it seems clear that Mr George will require a clean criminal record if he is to do so. Mr George also states that the immigration authorities have advised him that the “clean slate” he has in New Zealand will not be recognised in Greece.

[22]              Mr George’s evidence is that he has been similarly advised as regards to staying in France for any reasonably lengthy period, so as to spend extended periods with his daughter.

[23]              Turning to employment matters, in his affidavit Mr George states that he operated his own chauffeuring business when he lived in the United Kingdom prior to 2004. Mr George’s evidence is that he worked as a contract driver for what he describes as “high profile” clients, including the Ministry of Defence and various embassies. This work required Mr George to have a “full security clearance” and, again, a clear criminal record. Mr George wishes to resume work as a chauffeur when he is overseas, so as to supplement his retirement income. However, he anticipates that the conviction for assault will preclude him from doing so.

[24]              The Crown opposes any discharge being granted. It contends the offending was serious; that the consequences Mr George describes are the usual consequences of conviction; and moreover that no reliable evidence of those consequences has been provided. (As I have said, Mr George’s affidavit post-dates Crown counsel’s submissions.)

Discussion

[25]              Aside from this incident, Mr George has been a law abiding citizen. That he has not offended since indicates the assault was an isolated incident.

[26]              I consider the consequences of conviction that Mr George has set out in his affidavit to be out of all proportion to the gravity of the offending. This historic conviction, for what was modest offending, is now proving a significant hinderance to the retirement Mr George wishes to enjoy overseas, where his family are located. I am satisfied the grounds on which a discharge without conviction may be granted are made out, and I grant it accordingly.

Peters J