Goggin v Police

[2013] NZHC 2710

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000069 [2013] NZHC 2710

BETWEEN  MATTHEW JAMES GOGGIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   15 October 2013

Counsel:                  A M P Ross for appellant

A J Ewing for respondent

Judgment:                18 October 2013

RESERVED JUDGMENT OF DOBSON J

[1]      On 9 August 2013, Judge A P Walsh in the District Court at Wellington declined an application on behalf of Mr Goggin for discharge without conviction in relation  to  a  charge  of  assault  under  s 196  of  the  Crimes Act  1961,  to  which Mr Goggin had pleaded guilty.1   Instead, Judge Walsh entered a conviction and then discharged Mr Goggin, subject to an order that he pay reparation to the victim in the sum of $1,000.2

[2]      Mr Goggin has appealed from the Judge’s refusal to grant him a discharge

without conviction.

[3]      The assault occurred in Mr Goggin’s flat in suburban Wellington on 14 April

2013. An argument developed between Mr Goggin and a friend as to who should go out to purchase alcohol for the evening.   Without warning, Mr Goggin landed a single punch to the face of the victim with great force.  The force caused the victim

to  temporarily  black  out.    Once  he  regained  consciousness,  the  victim  left  the

1      New Zealand Police v Goggin DC Wellington CRI-2013-085-4238, 9 August 2013.

2      That was directed to be paid at the rate of $20 per week.

GOGGIN v NEW ZEALAND POLICE [2013] NZHC 2710 [18 October 2013]

premises  and  called  an  ambulance.    The  Police  became  involved  in  the  matter because they were contacted by the ambulance staff. The victim sustained a severely broken nose, which will require reconstructive surgery to be straightened.

[4]      Mr Goggin  has  no  previous  convictions  and  his  violent  response  was apparently out of character.

[5]      Between October 2010 and October 2012, Mr Goggin had been subject to compulsory treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act).  At the end of that period, he was discharged from supervision under the Act.   It is acknowledged that, in light of subsequent events, that was a poor clinical decision.

[6]      Mr Goggin was re-admitted to hospital on an involuntary basis the day after the assault, and his monitoring since then has led a psychiatrist to conclude that his offending behaviour was likely to have reflected a relapse of paranoid schizophrenia. Mr Goggin acknowledged that he had stopped taking his medication at the time, and that seems likely to have contributed to his mental deterioration.

[7]      The  Judge  took  into  account  Mr Goggin’s  diminished  responsibility  on account of his mental health difficulties, which rendered the circumstances of the offending materially less serious than they would otherwise have been.  The Judge was  wary  of  granting  a  discharge  without  conviction  when  circumstances  of offending of this type were likely to be relevant to enable potential employers to make  fully  informed  decisions  as  to  Mr Goggin’s  capabilities  as  a  prospective employee.

[8]      The Judge recognised the prospect that the existence of a conviction would make  it  more  difficult  for  Mr Goggin  to  pursue  aspirations,  both  to  travel  and potentially study overseas, and in obtaining employment.  However, he did not see the disproportionality of the adverse consequences for Mr Goggin as outweighing the gravity of the offending, which he classified as a serious assault.

[9]      On  the  appeal,  Mr Ross  for  Mr Goggin  submitted  that  the  Judge  gave inadequate credit for the extent to which Mr Goggin had diminished responsibility for the assault.  On such appeals, whether the test under s 107 of the Sentencing Act

2002 has been met is a matter of fact requiring judicial assessment, so that the appeal should be determined on normal appellate principles.3

[10]     Mr Ross asked me to accept a letter from Mr Goggin’s grandmother, which was not available to the District Court Judge.   Ms Ewing did not object to my considering the letter.  It described the grandmother, together with her husband until he died in October 2012, as having been the main caregiver(s) for Mr Goggin during his upbringing.  She reports that Mr Goggin’s mother (her daughter) was unable to care for him.  She describes Mr Goggin as having been diagnosed with Asperger’s Syndrome at the age of six.  His condition made social interaction difficult, leading to him being ostracised and sometimes bullied at school.  The grandmother observed that Mr Goggin did not react violently to that, and has subsequently been able to succeed academically at university.

[11]     I am satisfied that Mr Goggin was suffering a severely compromised mental state at the time of the offending.  A psychiatrist has opined that his discharge in October  2012  “initiated  a  cascade  of  events  which  culminated  in  the  recent admission to hospital” (that is, immediately after the assault).  He had moved from supported accommodation to a student flat, imprudently decided to stop taking the prescribed medication, and no longer had oversight from mental health services when it seems tolerably clear that his mental health was deteriorating.   It was reasonable for counsel to suggest that when the assault occurred, he was likely to have been responding to voices or delusional beliefs, which have been noted since his admission to hospital.

[12]     It  is  not  appropriate  to  determine  the  reduction  in  sentence  that  would otherwise reflect Mr Goggin’s diminished responsibility on any sort of arithmetic basis.   Counsel were inclined to agree that, absent diminished responsibility, the appropriate sentence would likely have been an order for reparation, together with

community work for Mr Goggin as a first offender.  Instead, he was convicted and discharged.

[13]     The  assessment  of  the relative  gravity of  the  offending  has  to  take  into account the circumstances of the offending and the offender.4   Given the combination of circumstances in which this occurred, the severity of the harm inflicted on the victim should not prevent a full measure of recognition of Mr Goggin’s diminished responsibility for inflicting that harm.  It does not belittle the victim’s interests in this case to acknowledge that the serious harm was imposed in circumstances where the

law recognises that the mental condition of an offender can reduce the responsibility that is attributed to the offender for his conduct.   I am satisfied that substantially diminished responsibility should be attributed to Mr Goggin.

[14]     The second aspect of the evaluation under s 107 of the Sentencing Act is the extent to which there are any disproportionately adverse consequences for this offender, resulting from the sentence imposed.  I accept that a young man attempting to  pursue  a  university  career  despite  the  challenges  caused  by  an  Asperger’s condition should be encouraged.  Mr Goggin has had a measure of success thus far, and aspires to study further, either in New Zealand or overseas.   He has also had periods of employment in situations where further employment is likely to be more difficult to secure if he has a conviction for assault.

[15]     The extent of those adverse consequences is difficult to project accurately, but their adverse impact is a reality at a material level.  That impact does qualify as out of all proportion to the gravity of the offending.

[16]     I am therefore satisfied that the criteria for a discharge under s 107 of the Sentencing Act are present in this case.  Having reached that point, there is no reason why the discretion under s 106 of the Sentencing Act ought not to be exercised in his favour.

[17]     I accordingly allow the appeal and quash the conviction.

[18]     In lieu of the conviction entered, I discharge Mr Goggin without conviction, upon the condition that he acknowledge his commitment to pay compensation in the sum of $1,000 at the rate of $20 per week.  The order of the District Court Judge for Mr Goggin to pay costs of $132.89 remains.

Dobson J

Solicitors:

Crown Solicitor, Wellington for respondent

Counsel:

A M P Ross, Porirua for appellant