H v New Zealand Police HC Auckland CRI-2004-404-237

[2006] NZHC 88

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2004-404-237

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 February 2006

Appearances: Cam Robertson for Appellant

Antonia Dowgray for Respondent

Judgment:      17 February 2006

JUDGMENT OF HARRISON J

SOLICITORS

Cam Robertson (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

H V POLICE HC AK CRI-2004-404-237 17 February 2006

[1]      On 12 May 2004 Mr Keith H  was found guilty following a summary trial before Judge Josephine Bouchier in the District Court at Waitakere of one count of assault with a weapon (s 202C Crimes Act 1961) and two counts of common assault (s 9 Summary Offences Act 1981).  For reasons which will become apparent, the statutory basis for the charges is relevant to the result of this appeal.

[2]      On  8  June  2004  Judge  Bouchier  sentenced  Mr H   to  a  term  of

150 hours community work.   Again for reasons which will become apparent, it is relevant that the Judge did not apportion the total sentence between the component convictions.

[3]      Mr H  now appeals against both his conviction and sentence.  He acted for  himself  at  trial  in  the  District  Court  but  was  represented  by  counsel  on sentencing.  In support of this appeal he has been represented with considerable skill by Mr Cam Robertson who has been assigned as counsel.  I note that the passage to hearing has been fraught with difficulties, due principally to the inability of the District Court to provide prompt and reliable transcripts of evidence and Her Honour’s oral decision and sentencing notes.

[4]      The relevant facts fall within a narrow compass.   On 15 September 2003

Mr H  and his son entered a piece of rural land in West Auckland.   Both complainants, Messrs Muhammad and Iskef, were working there on instructions from the owner.  Previously Mr H  had leased the land.  He used it to store machinery and building materials.  The purpose of his visit on 15 September was to remove some timber which he had left there.

[5]      Messrs Muhammad and Iskef attempted to stop Mr H  and his son from loading the timber on to his truck.   A scuffle ensued.   Judge Bouchier found that Mr H   struck  both  of  the  complainants.     Additionally  she  found  that Mr H  drove his vehicle intentionally into Mr Iskef as he was leaving the property.

[6]      The Judge heard evidence at trial from Messrs Muhammad and Iskef together with police officers for the prosecution.   Mr H  and his son, Warren, gave

evidence in his defence.  It is plain that, having seen and heard the witnesses, the Judge preferred the complainants’ evidence to Mr Hamiora’s.   I am satisfied that Mr H   himself  assisted  the  Crown  case  by  evidence  elicited  under  self- incriminating cross-examination and by his own account given in the witness box.

[7]      Mr  H   appeals  his  convictions  on  three  grounds.     Mr Robertson provided a comprehensive memorandum in support.  The first ground is that Judge Bouchier’s finding of guilt cannot be supported by the evidence.   I have just effectively   dismissed   it.      I   am   independently   satisfied   that   there   was   an overwhelming evidential basis for her conclusions.

[8]      The  second  ground  was  that  the  Judge  prevented  Mr H   from presenting  his  defence  adequately.     Through  Mr Robertson  he  complains  of continuous restrictions imposed upon him by the Judge during cross-examination of Messrs Muhammad and Iskef.  As a result he says he was unable to clarify points of contention or tax each complainant with previous inconsistent statements.

[9]      I have reviewed with care the extracts from the notes of evidence highlighted by Mr Robertson in support of this ground of appeal.  I am satisfied that it is without foundation.  Not only did Mr H  effectively lead incriminating evidence by his own cross-examination of both complainants, he also attempted continually to cut off the witnesses’ answers.  The Judge acted entirely within her rights in intervening for the purpose of ensuring that witnesses were able to give uninterrupted answers.  His protestations of unfamiliarity with the Court process made repeatedly to the Judge do not ring true given his previous acquaintance with the legal system.  I am in no doubt that the Judge’s interventions were justified and designed to ensure a fair trial. Accordingly, I dismiss this ground.

[10]     The   third   ground   has   better   prospects.      Mr Robertson   submits   that Mr H  was not given an election on any of the three charges.  His submission proceeded  on  the  premise  that  all  three  were  laid  indictably.    However,  today Mr Robertson accepts the submission made by Ms Antonia Dowgray for the Crown that Mr H  had no right to elect on the two charges of common assault.  They were laid summarily.

[11]     Accordingly,  I  am  concerned  only  with  the  remaining  but  more  serious charge of assault with a blunt instrument.   Mr H  deposes that he was not given a right of election on the charge of assault with a weapon.  Ms Dowgray, with commendable fairness and balance, has reviewed the evidence available from the Court  file.    She  accepts  that  there  is  nothing  either  to  confirm  or  challenge Mr Hamiora’s  assertion.    He  had  an  absolute  right  to  elect  trial  by jury on  an indictable charge.

[12]     In these circumstances Ms Dowgray acknowledges that an appeal is usually allowed and a rehearing ordered.  The question is ultimately one of discretion, but I agree with her.  Accordingly, I allow Mr Hamiora’s appeal on the charge of assault with a blunt instrument and remit it back to the District Court for rehearing.   I emphasise,  though,  that  Mr Hamiora’s  convictions  on  both  charges  of  common assault remain.

[13]     As noted, Judge Bouchier sentenced Mr H  to 150 hours community work.  This sentence conformed to a recommendation made by the probation service in a pre-sentence report.  The transcript of the Judge’s sentencing remarks is almost unintelligible.   However, I am able to discern that she dealt with the issue with brevity.     The  notes  record  her  exchanges  with  Mr Hamiora’s  then  counsel, concluding with a very short reference to her adoption of the probation officer’s recommendation.  The Judge did not, as I have earlier noted, apportion the sentence between the three charges.

[14]     Mr Robertson appeals the sentence as manifestly excessive.  The maximum sentence for a charge of assault with a blunt instrument is five years imprisonment; the maximum for common assault is six months or a fine of $4000.   Plainly the legislature treats the former as much more serious.

[15]     Mr  Robertson  submits  that  the  blunt  instrument  conviction  would  have carried the aggregate sentence over the threshold from a monetary penalty to community work.  Without the benefit of any notes of Judge Bouchier’s reasoning, I can only assume that she was of the same opinion.   Removal of the most serious

conviction from the sentencing equation changes the sentencing dynamic.   I must effectively start the process again.

[16]     Ms Dowgray points to two aggravating factors relevant to sentence on the common assault charges.  One is that at least one complainant suffered lacerations as a result; the other is Mr Hamiora’s lengthy list of previous convictions.  Both have some force.

[17]     However,  on  the  other  side  of  the  ledger,  as  emphasised  today  by Mr Robertson, Mr H  has no convictions since 1997.  His record is evidence of exemplary behaviour since then.  I am prepared to accept that given Mr Hamiora’s successful attempts at rehabilitation, his conduct on 15 September 2003 was out of character.  I treat him as a reformed man.  I have no doubt that his defence of the charges and determination to pursue this appeal is rooted in his recognition that he momentarily dropped his standards and let himself and his family down.  Indeed, the probation report provides a glowing testimony of the way Mr H  has turned his life around since his last conviction, also for common assault, in 1997.

[18]     In these circumstances I allow Mr Hamiora’s appeal against sentence on the two charges of common assault.  I set aside the sentence of community work of 150 hours (I emphasise that I would not have allowed the appeal if the more serious conviction had remained).  In its place I impose fines of $250 on each charge.  Those fines are to be paid by arrangement with the Collections Department at the District Court at Waitakere.  In addition I order Mr H  to pay the sum of $250 by way of reparation to each complainant, such sums to be paid within 28 days.  In total his monetary penalty is $1000.

[19]     I wish to express my appreciation for the quality of the written and oral submissions made today both by Mr Robertson and Ms Dowgray.

Rhys Harrison J