Legal Research
Cases
George v Police

George v Police

Case [2014] NZHC 1725 23 July 2014

Consequences of Conviction

Criminal Law

Immigration & Refugee Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-27 [2014] NZHC 1725

BETWEEN
DENNIS GEORGE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 July 2014

Counsel:

T Sutcliffe for Appellant
TV Clark for Respondent

Judgment:

23 July 2014

JUDGMENT OF BREWER J

This judgment was delivered by me on 23 July 2014 at 4:45 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Gavin Boot Law (Hamilton) for Appellant
Almao Douch (Hamilton) for Respondent

GEORGE v POLICE [2014] NZHC 1725 [23 July 2014]

Introduction

[1] The appellant appeals a refusal by Judge PR Spiller in the District Court at Hamilton on 7 April 2014 to discharge him without conviction pursuant to s 106 of the Sentencing Act 2002.1

[2] The appellant was charged on 13 September 2013 with doing an indecent act with intent to offend contrary to s 126 of the Crimes Act 1961. The maximum penalty is a term of imprisonment of two years.

[3] The appellant defended the charge. Judge Spiller heard the evidence on

7 March 2014 and convicted the appellant.2 In doing so, he accepted the evidence of the complainant and rejected the evidence of the appellant.

[4] The complainant was a 19 year old girl who had been in New Zealand for about 14 months. The appellant, a man then aged 30, gave her a job at the retail shop which he managed. The complainant gave evidence that some three months after he employed her, the appellant called her into his office. The appellant had his trousers down to his knees and from her description it can be inferred that he was masturbating himself. The complainant, who because of her background and culture was without knowledge or experience of such things, was shocked. Her evidence was that she stayed in the office for about a minute while the appellant masturbated himself, before leaving. She felt bad, shocked and shamed.

[5] The appellant’s evidence was to the effect that there had been a misunderstanding. He said that he had opened the zip of his trousers to tend to a broken pimple on his penis when the complainant came into his office without invitation.

[6] On sentencing, the District Court Judge found the gravity of the offending was not at the lowest level. The Judge took note of the victim impact statement in which the complainant said that she was emotionally devastated after this incident
and found it very difficult to cope with the stress. She had left her job at the store

1 Police v George DC Hamilton CRI-2013-019-4736, 7 April 2014.
2 Police v George DC Hamilton CRI-2013-019-4736, 7 March 2014.

and was having difficulty in her second job. She wanted the appellant to be held accountable for his actions and opposed a discharge without conviction.

[7] The District Court Judge made brief reference to the consequences for the appellant of a conviction. The only one he mentioned specifically was that “there could be issues for you in relation to Immigration…

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 George v Police

Details

AGLC: George v Police [2014] NZHC 1725
Case: [2014] NZHC 1725
Decision Date: 23 July 2014

CaseChat Overview and Summary

Dennis George, the appellant, appealed against the refusal by Judge PR Spiller in the District Court at Hamilton on 7 April 2014 to discharge him without conviction pursuant to s 106 of the Sentencing Act 2002. The appellant was charged with doing an indecent act with intent to offend contrary to s 126 of the Crimes Act 1961. The maximum penalty was a term of imprisonment of two years. The appellant defended the charge, but the District Court Judge accepted the evidence of the complainant and rejected the evidence of the appellant, convicting him. The District Court Judge decided that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence and directed the appellant to pay reparation of $400 to the complainant. The appellant appealed against the refusal to discharge him without conviction.

The court had to decide the weight to place on the consequences of conviction asserted by the appellant, which were that the entry of a conviction would most likely lead to his deportation from New Zealand and that deportation would likely have a severe financial effect on his parents as guarantors of his student loan. The court had to consider the discretionary power to discharge under s 106 and the mandatory direction under s 107 of the Sentencing Act 2002.

The court held that the gravity of the offending was moderate, taking into account the aggravating and mitigating factors relating to the offending and the offender. The court identified the direct and indirect consequences of conviction and considered them against the gravity of the offending. The court held that the consequences of a conviction being entered were subjecting the appellant to the scrutiny of Immigration New Zealand and the risk that his family would face financial hardship if he were deported from New Zealand. The court held that these consequences were not out of all proportion to the gravity of the offending, and the appeal was dismissed.

Orders