ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200(2)(f) CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2024-454-000020
[2024] NZHC 2714
BETWEEN
H
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing:
18 September 2024 (via AVL/VMR)
Counsel:
E J Forster for Appellant
A M Barham for Respondent
Judgment:
19 September 2024
JUDGMENT OF LA HOOD J
(Appeal against Conviction and Sentence)
Appeal against decision not to grant a discharge without conviction
[1] Mr H appeals against the refusal of the District Court to discharge him without conviction under s 106 of the Sentencing Act 2002.1 The Judge sentenced Mr H to six months’ home detention for strangulation,2 and assault,3 of his 11-year-old son.
1 New Zealand Police v [H] [2024] NZDC 11006 [Decision under appeal]. Mr H pleaded guilty at an early stage and a conviction was entered at an earlier stage.
2 Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.
3 Crimes Act, s 194(a); maximum penalty two years’ imprisonment.
H v NEW ZEALAND POLICE [2024] NZHC 2714 [19 September 2024]
[2] Mr H appeals on the basis that a discharge without conviction ought to have been granted. Alternatively, the credit given for personal mitigating factors was insufficient, particularly credit for mental and physical health, rehabilitative efforts, previous good character, and remorse.
[3] The Crown accepts the Judge did not expressly consider aspects of Mr H’s personal mitigating factors in assessing the overall gravity of the offending when applying the test for a discharge without conviction. However, the Crown submits that gravity of the offending remains moderately serious, and the consequences of conviction are not out of all proportion.
[4] For the reasons set out below, taking into account all of Mr H’s mitigating circumstances, I assess the overall gravity of the offending as lower than the District Court Judge determined. I find that the consequences of conviction, particularly employment prospects, is out of all proportion to the gravity of the offending. Accordingly, I allow the appeal and grant a discharge without conviction.
The relevant background
[5] Mr H, aged 55, has an 11-year-old son. Mr H suffered a significant deterioration in his mental health prior to the offending, which required admission to inpatient mental health treatment in October 2022 and April 2023.
[6] On 8 May 2023, at 8:30 pm, Mr H and his son were in their lounge, sitting on the couch next to each other. His son confronted him about his alcohol consumption, which had been identified as an issue during his hospital admissions and for which he had been attending counselling with a community alcohol and drug provider since his April 2023 admission. Mr H did not like being questioned, and became angry, reached over, and grabbed his son by the neck…
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.
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H v Police [2024] NZHC 2714
Case
[2024] NZHC 2714
Decision Date
CaseChat Overview and Summary
H appeals against the District Court's decision to not discharge him without conviction under s 106 of the Sentencing Act 2002 for strangulation and assault of his 11-year-old son. The Crown accepts the Judge erred in not fully considering the personal mitigating factors in assessing the gravity of the offending, but argues that the consequences of conviction are not out of all proportion to the gravity of the offending. The High Court finds that the Judge erred in assessing the gravity of the offending by not giving sufficient weight to Mr H's personal mitigating factors, including his mental health issues, rehabilitative efforts, good character, and remorse. The consequences of conviction, particularly on Mr H's employment prospects and the financial hardship to his family, are out of all proportion to the gravity of the offending. Accordingly, the appeal against conviction is allowed, the convictions are quashed, and Mr H is discharged without conviction.