H v Police HC Auckland CRI 2008-404-60

[2008] NZHC 1197

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-60

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         28 July 2008

Counsel:         Mr H   Appellant, in person

M J F Wright for Respondent

Judgment:      28 July 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Copy to:

Appellant in person

H V NEW ZEALAND POLICE HC AK CRI 2008-404-60  28 July 2008

[1]      Mr H   was convicted on a charge of assault with a weapon.  That conviction was  entered  after  a  defended  hearing  in  the  District  Court  at  Waitakere  on  9

November 2007.

[2]      Judge B N Morris sentenced Mr H   on 7 February 2008.  A fine of $350 was imposed, together with Court costs of $130, reparation of $250 and witnesses expenses of $50.

[3]      Mr H   appeals against both conviction and sentence.

[4]      The circumstances in which Mr H   came to be charged have their origins in a dispute which has arisen between Mr H   and his neighbours.

[5]      Mr H   lives on Scenic Drive in Waitakere City.   His neighbours, Mr and

Mrs Humphrey, operate a wedding reception business from their property.

[6]      There is a common right of way shared between Mr H   and the Humphreys, to gain access to the respective properties.

[7]      On the afternoon of Saturday 31 March 2007, a wedding was being held at Mr and Mrs Humphrey’s property.   At the point at which the bride was walking down the aisle with her father, Mrs Humphrey advised her husband that Mr H   had started up a lawn mower on his neighbouring property.

[8]      Mr H  , on the evidence before the District Court, was mowing his lawn about five metres away from the boundary.   Mr Humphrey went to the boundary fence.  There is a dispute in the evidence as to precisely what happened from that time.  According to Mr Humphrey, Mr H   was aggressive towards him.  Mr H  ’s evidence was that he responded to aggressive conduct on the part of Mr Humphrey.

[9]      However one characterises the evidence, it is clear that both Mr Humphrey and Mr H   perceived that the other was being provocative.  Mr Humphrey took that from Mr H   starting a lawn mower in close proximity in time to the start of a wedding function on his property.  Mr H   considered that Mr Humphrey had been

provocative because he came over his fence into Mr H  ’s property.   There had previously been a trespass notice served on Mr Humphrey to prevent him from entering Mr H  ’s land.

[10]     The problems between Mr H   and the Humphreys emanate primarily from the noise that is generated from the business which is conducted on that part of the property of Mr and Mrs Humphrey that is closest to the boundary with Mr H  .

[11]     The upshot of what occurred was that Mr H   obtained a stick from his garage.   He hit Mr Humphrey with the stick.   He claimed that Mr Humphrey had struck him at some point.  However, this evidence came out from Mr H  ’s evidence in chief and had not been put by Mr H  ’s counsel in the District Court to Mr Humphrey.

[12]     It  is  clear  from  the  judgment  given  by Judge  Morris  after  the  defended hearing, that the failure to put that point directly to Mr Humphrey was a significant factor that led him to regard Mr Humphrey’s view of events as more reliable.

[13]     While there is some equivocation in Mr H  ’s original statements to the Police as to whether a punch from Mr Humphrey struck him or the number of punches involved, it is clear that there was some contemporaneous mention of a punch in Mr H  ’s statements to the Police.  There was no cross-examination on the issue of the punch, presumably because the Police prosecutor did not consider that necessary having regard to observations made by the Judge during the course of Mr H  ’s evidence.

[14]     After Mr H   explained what had happened, he said that Mr Humphrey struck him and punched him in the eye.   The following exchange then took place between Judge Morris and Mr H  :

Question:  Sorry

Answer: He punched me. Question: He punched you.

Answer: Yeah, he punched me on my eyeball.

Question: That’s never been put to Mr Humphrey. Answer: Yes.

[15]     There is no doubt on the evidence that, while Mr Humphrey’s acts in entering Mr H  ’s property were provocative, Mr H   used a stick to hit Mr Humphrey in a manner that was legally unjustified.  While Mr H   believes he had to act in that way to protect himself from Mr Humphrey it is clear from the judgment of the Court of Appeal in R v Wang [1990] 2 NZLR 529 (CA) at 535-536, that a pre-emptive strike will not suffice, in circumstances such as these, to provide a defence of self-defence.

[16]     For that reason I agree that the Judge was entitled to find the charge proved.

[17]     The appeal against sentence is more problematic.  Evidence was put before the Judge to support a submission that Mr H   ought to have been  discharged without conviction under s 106 of the Sentencing Act 2002.  The Judge declined an invitation to discharge on that basis.  However, no reasons were advanced to support that view.  All that the Judge said was that if Mr H   had pleaded guilty initially and had a more conciliatory attitude towards what occurred then he might have had a stronger case to advance under s 106.

[18]     There have been differing views expressed in this Court as to the breadth of the s 106 discretion having regard, in particular, to the guidance provided by s 107 of the Act which provides:

107     Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[19]     The most benevolent view to Mr H   can be gleaned from Delaney v Police (High Court Wellington, CRI 2005-485-22, 22 April 2005).   In that case Miller J took the view that the term “the gravity of the offence” should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability.

[20]     Although, generally, a discharge without conviction will not be ordered when violent offending is involved, in another judgment of Miller J the need to consider the spontaneous nature of the offending and the mitigating factors relating to it was emphasised: see Montgomery v Police (High Court Palmerston North, CRI 2005-

454-70, 11 April 2006).  See also Halls Sentencing at para SA 107.3(a).

[21]     The offending in this case occurred as a result of a longstanding dispute between two neighbours.  Both were incensed at acts taken by the other.  I am told that civil proceedings are underway to resolve disputes that exist.  That is the way disputes of this nature ought to be resolved.   It is inappropriate and unacceptable from society’s point of view that neighbours go to the lengths of physical actions to solve or to vent frustration at civil disputes that cause annoyance to them.

[22]     In  this  case,  I  regard  the  provocative  act  of  Mr  Humphrey  in  entering Mr H  ’s property as a contributing factor to what occurred.  It does not appear that the bruises inflicted to Mr Humphrey by Mr H   were serious.  Nevertheless, that is not to minimise conduct involving a weapon which ought never to have occurred.

[23]     Mr H   is a man of good character.  He is a businessman who has been in New Zealand for some 15 years.  He has plainly made a good contribution to New Zealand  society  over  that  time.    If  a  conviction  were  entered  it  would  cause significant difficulty in travel that he needs to undertake.  It would also put a mark on his character which I consider would be out of proportion to the gravity of the offence, once one has regard to the circumstances in which it occurred.

[24]     Although Judge Morris declined to exercise a discretion to discharge without conviction, it is clear that at the end of the defended hearing, he was minded to bind Mr H   over to keep the peace.   How that process would have been invoked is a matter into which I need not go.  However, it does indicate a lack of seriousness of the conduct which the Judge was prepared to reflect in an order of that type.

[25]     My impression, from hearing Mr H   today, is that he understands now that he cannot react in a physical way to provocative acts by his neighbours.  There is clearly a dispute between them that needs to be resolved through appropriate civil

mechanisms.     I  would  urge  both  Mr  H    and  Mr  Humphrey  to  engage  an independent facilitator who could assist them in resolving disputes.  They may care to approach an organisation such as the Arbitrators and Mediators Institute of New Zealand Incorporated to find a suitable person to assist in that regard.

[26]     What is plain is that they cannot go on living in the same vicinity in the present atmosphere.  In the meantime, at least, Mr H   will need to put up with the inconvenience of the noise that comes from the wedding business until disputes can be solved peaceably.

[27]     Having regard to the good character of Mr H  , the fact that offending of this type was completely out of character, the nature of the difficulties that would be caused by travel restrictions and the provocative conduct of Mr Humphrey, I am satisfied that the entry of a conviction would be out of all proportion to the gravity of the offence.

[28]     For those reasons, the appeal against conviction and sentence is allowed.  The conviction and sentence entered in the District Court is set aside.  Instead, Mr H   is discharged without conviction under s 106 of the Sentencing Act 2002.

[29]     I  do  not  propose  to  impose  any  conditions  as  Mr  H    has  given  an undertaking to me that he will pay the sum of $250 to a charity of his choice.  He has

also assured the Court that this conduct will not happen again.

P R Heath J