Goodricke v Police
[2017] NZHC 903
•5 May 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2017-485-6 [2017] NZHC 903
BETWEEN PETER GOODRICKE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 March 2017 (further information provided on various dates
in April 2017)
Appearances:
Appellant appearing in person
S W P Woods for the RespondentJudgment:
5 May 2017
JUDGMENT OF MALLON J
Introduction
[1] Mr Goodricke pleaded guilty to a charge of misusing a telephone.1 He was convicted and sentenced to a $250 fine in the Wellington District Court.2 He appeals against his conviction and sentence on the basis that he should have received a discharge without conviction.3
The facts
[2] Mr Goodricke imports goods from Australia. On Thursday 15 December
2016 he was expecting delivery of three packages from a courier company. Although Mr Goodricke had made the necessary electronic payment for the delivery, the company advised that the goods would be delivered the following Monday or
1 Telecommunications Act 2001, s 112(2)(a) (maximum penalty three months imprisonment or a
$2,000 fine).
2 Police v Goodricke DC Wellington, CRI-2016-085-3483, 27 January 2017.
3 The Court of Appeal has recently confirmed that appeals against refusals to grant a discharge without conviction are properly brought against both conviction and sentence: Jackson v R [2016] NZCA 627 at [15]-[16].
GOODRICKE v POLICE [2017] NZHC 903 [5 May 2017]
Tuesday. Mr Goodricke was frustrated, the courier company had delayed his deliveries for two to three days after payment for weeks on end and he needed to deliver the goods to his customers before Christmas.
[3] Mr Goodricke called the courier company to discuss this. He became highly agitated and swore repeatedly at the billing agent. He then stated that he would go down to the courier depot with a shotgun and collect his packages by force. The billing agent alerted her manager who in turn alerted the police. Mr Goodricke later called the courier company and said he was coming to collect his packages. He was stopped by police and arrested on his way to the courier company. No firearm was located in his vehicle.
District Court proceedings
[4] A duty solicitor represented Mr Goodricke in the District Court. He advised Mr Goodricke to instruct a lawyer, who could write to the police on his behalf to seek a review of the police decision to decline to grant him diversion or to apply for a discharge without conviction. Mr Goodricke declined this advice. He did not qualify for legal aid, suffered from [redacted], and just wanted to get the matter over with.
[5] When the matter was called, the duty solicitor explained this to the Judge. He asked if the Judge would consider discharging Mr Goodricke without conviction on the basis the offending involved a momentary loss of temper. The Judge said he would not do so without a proper application or some indication of the consequences. The Judge indicated he was envisaging imposing a fine.
[6] The Judge then spoke to Mr Goodricke about his [redacted]. He asked him if his [redacted] meant he had a short fuse. Mr Goodricke replied that it did “very much so”. The Judge accepted this response and commented that being in pain all the time was “pretty debilitating”. Mr Goodricke agreed and told the Judge [redacted]. The Judge again accepted that living in pain all the time was pretty wearying, but said Mr Goodricke had not gone about dealing with it in the right way. Mr Goodricke replied “absolutely not, and I’m hugely apologetic to everyone
involved”. He then went on to explain the circumstances of why he had been so
frustrated about the delayed delivery.
[7] The Judge said he understood this but Mr Goodricke needed to understand that these things are taken pretty seriously. Mr Goodricke said he understood. The Judge said “I think I can deal with the matter by way of a fine, all right?” to which Mr Goodricke replied “okay”. The Judge proceeded to sentence him, referring to the circumstances, including Mr Goodricke’s short fuse because of his pain, his remorse and apology, his early guilty plea and his absence of previous convictions. He was convicted and fined $250.
Other information
Earlier discharge without conviction
[8] Mr Goodricke was previously charged with interfering with a computer system, accessing a computer system without authorisation and making a false statement to the police.4 This related to events in 2009. He pleaded guilty to one of the computer charges and the other was withdrawn. He also pleaded guilty to the false statement charge. The District Court Judge granted a discharge without conviction for the remaining computer charge.5 He convicted and discharged Mr Goodricke on the making a false statement charge.
[9] Mr Goodricke appealed to the High Court the Judge’s decision not to grant a discharge without conviction on the false statement charge.6 The circumstances leading to that charge were that, as result of the computer charges, the police had seized Mr Goodricke’s computer equipment. Mr Goodricke telephoned the police requesting its return. He became extremely agitated when they would not return the property and said he was going to hang himself. He repeated to the operator that “he had a noose around his neck and was going to jump off the balcony”.7 The police made a rapid deployment to his house. Mr Goodricke was in the house with his
wife. He was not in the process of trying to kill himself.
4 Crimes Act 1961, ss 250(2)(a) and 252(1), and Summary Offences Act 1981, s 24(b)(i).
5 Police v Goodricke DC Wellington CRI-2009-085-7445, 20 January 2010.
6 Goodricke v Police [2015] NZHC 736.
7 At [3].
[10] Mr Goodricke did not initially pursue his appeal. Eventually it came up for hearing in March 2015. The High Court Judge adjourned the hearing to enable Mr Goodricke to take legal advice and make an application for leave to adduce further evidence in support of his appeal. At the adjourned hearing Mr Goodricke explained he was not able to obtain the services of a lawyer. He had also not made an application for leave to adduce evidence. The Judge declined to take into account information about the effects on Mr Goodricke’s employment which he had submitted to the Court. This was because it had not been provided in an admissible way, pursuant to an application for leave. It also related to events that occurred well after the original sentencing.
[11] The Judge did, however, allow the appeal. He did so on the basis that the false statement charge would have a similar effect on his career as the computer charge and the gravity of the computer charge was greater, and the District Court had accepted it was appropriate to grant a discharge on the computer charge. The High Court Judge considered the District Court had not had sufficient regard to this point. He therefore decided it was appropriate to grant Mr Goodricke a discharge without
conviction on the false statement charge.8
Health information
[12] At the appeal hearing before me Mr Goodricke referred to health issues which he considered contributed to his behaviour on the matter which led to his present conviction, and which had also made the District Court hearing difficult for him. I allowed Mr Goodricke the opportunity to provide further information about this. I also allowed the respondent the opportunity to respond to any such information, including on whether leave to admit the information should be granted.
[13] Mr Goodricke provided information in the form of a report from a consultant psychiatrist dated 12 April 2013 and a report from a conjoint associate professor at St Vincent’s Clinic in Sydney dated 16 April 2016. This information refers to Mr
Goodricke’s [redacted]. It also refers to his [redacted]. Mr Goodricke also provided
8 At [18]-[20].
information which he considered indicated that he was subjected to police harassment.
Appeal grounds
[14] Mr Goodricke submits that he should have received a discharge without conviction. He submits the consequences of the conviction will cause him significant hardship as he works as a computer contractor on a number of short term contracts. This means he is often looking for work. He submits these contracts often involve sensitive IT communications so employers carry out criminal checks. His conviction may therefore mean he is overlooked for a number of these roles. He submits he is the only person in New Zealand (other than his wife) who has his last name which means that he is able to be identified.
[15] Mr Goodricke also has concerns that, what he says is essentially a summary offence, has been reported as a criminal offence. He also complains about the way he was arrested. He alleges the police dragged him out of his car causing him to fall on his face. They then twisted his legs which caused ligaments in his left knee and right foot to tear. Although I acknowledge these matters are of concern to Mr Goodricke, they are not relevant to the appeal. I do not address them further.
[16] The police oppose the appeal. They submit there was a serious element to the offending and the consequences Mr Goodricke relies on were not raised at the sentencing, nor are they fresh. They also submit the further medical information is not fresh and therefore should not be considered. In any event, even in light of this information, they submit the consequences are not out of all proportion to the offending.
My assessment
[17] Section 106 of the Sentencing Act 2002 gives the court the power to discharge a defendant without conviction. In order to discharge a defendant the threshold test in s 107 must first be satisfied. This involves determining whether the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offending.
[18] This offending was not especially grave. While the billing agent who took Mr Goodricke’s call was alarmed and disturbed by the call, and this led to a police response, Mr Goodricke did not have a firearm in his vehicle when he was stopped on his way to the courier company. The gravity is also diminished by Mr Goodricke’s health difficulties, his remorse and early guilty plea. The sentencing Judge was aware of all these matters. The Judge formed the view that, in the absence of specific information about the consequences of a conviction, a fine was the appropriate penalty. That decision cannot be faulted on the information before him.
[19] In my view the additional health information before me does not assist. It is credible, but it is not fresh (because it could have been obtained for the District Court hearing with reasonable diligence) and therefore it does not meet the test for admitting new evidence.9 Nor is the information of such strength and potential impact to the appeal that it should be admitted even though it is not fresh. I say that because the Judge accepted Mr Goodricke’s [redacted] meant he had a short fuse. He took this into account in determining that only a fine was the appropriate penalty. The additional information concerning Mr Goodricke’s [redacted] further explains
the reason for his short fuse. It confirms, rather than alters, the Judge’s assessment of the gravity of offending.
[20] The real difficulty for Mr Goodricke’s appeal is that he did not put forward specific information to the District Court about the consequences of a conviction for him. He did not do so despite the duty solicitor’s advice to him to seek an adjournment to enable him to pursue this. It is not clear that this particular conviction will impact upon his intended line of work. In the absence of specific information before the District Court about this, the general consequences of a conviction could not be said to outweigh the gravity of the offending.
[21] Mr Goodricke seeks to explain his decision to proceed on the day of the District Court hearing because of the stress the District Court environment caused him. I acknowledge that. However, he had a duty solicitor there to advise him and,
before he appeared in front of the Judge, he had decided to reject the duty solicitor’s
9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
advice and proceed. In front of the Judge he was able to respond clearly to the Judge and to express his apology and remorse. This assisted the Judge in deciding that no more than a small fine was the appropriate penalty. Moreover, this was not the first time he had faced the Court’s procedures, nor what was required to support a discharge without conviction. His decision to reject the duty solicitor’s advice was made with that background. For these reasons, there is no basis on which I could interfere with the conviction and fine imposed in the District Court.
Result
[22] The appeal is dismissed.
Mallon J
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