H v Police HC Auckland CRI 2010-404-211

[2010] NZHC 2018

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-211

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 November 2010

Counsel:         G Newell for Appellant

J Carlyon for Respondent

Judgment:      16 November 2010

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      In  October  last  year  the  appellant  was  in  Queen  Street  standing  by  the roadside.   He was rocking back and forward with his hand in his trouser pocket masturbating.  This went on for about 45 minutes.  When the police siren was heard he left the area but returned and began masturbating again.   He pleaded guilty to doing an indecent act but said he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.   The appellant says the Judge was wrong to

refuse the discharge and now appeals against that decision.

H V NEW ZEALAND POLICE HC AK CRI 2010-404-211  16 November 2010

Further facts

[2]      These  events  began  about  quarter  past  ten  on  a  Thursday  morning. Queen Street was busy at the time with significant vehicle and pedestrian traffic. While masturbating the appellant was staring at female passersby and mannequins in the shop window.  Several members of the public called the police.

[3]      As I have recounted when the police approached the area using their siren the appellant left.   He returned a short time later to the same place and began masturbating again.  When the police arrived a second time he was arrested but made no effort to disguise what he was doing in the presence of the police.

[4]      In  the  District  Court  the  Judge  recounted  the  background  facts,  the appellant’s personal circumstances and asked the question posed by s 107 of the Sentencing Act whether the consequences of a conviction would be out of all proportion to the gravity of the offending.  The Judge assessed the offending to be “grave”.  He then said:

It has certain aggravating features about it, as well as the problems that he might well have been suffering in his personal life, which placed him under stress, but which is not in my view, justification for what he did.  He must take responsibility for his actions.   The public is entitled to be protected against this type of activity, and I do not consider that the consequences of a conviction are out of proportion to the grave nature of the offending.

[5]      The application was therefore refused.

Discussion

[6]      The appellant’s offending does have some unusual aspects to it.  Mr H   is a 42 year old man who immigrated to New Zealand in 2004 with his wife and then nine year old son, then the only child.

[7]      The appellant had been a successful businessman in China before his shift but it seems has struggled to settle into New Zealand.  In 2006 he began to study towards a masters degree in computer science.  He has found working in English especially

stressful.  His personal life has also been under significant stress.  A further child has been born to the family in New Zealand, now about three years of age.   His wife became the sole income earner for the family.   At about the same time his wife’s parents  immigrated  to  New Zealand  but  they  have  been  unable  to  support themselves.   There has been significant disagreement within the family with his wife’s parents apparently calling him “a loser and a disgrace to the family” because he cannot find a job.  Mr H   says they abused him in front of his children and his guests and he became more withdrawn and depressed as this went on.

[8]      Further, in the weeks leading to the offending he says he was extremely anxious waiting for a decision regarding a fellowship from the Foundation for Research Science and Technology.   A fellowship I understand he was ultimately granted.

[9]      As to the offending itself he says he cannot explain it.  He says that he cannot in fact remember the detail of the events but that he remembers going to Queen Street that day for the launch of Windows 7 Microsoft software.   He was feeling tired and sleepy and depressed and did not want to go home and face his in-laws. The next thing he can really recall is that he was being arrested by the police.  He accepts that what he did is “very bad and extremely stupid” and is deeply shocked and ashamed by his behaviour.

[10]     As a result of these events he attended regular counselling sessions with a professional counsellor.   A report from that counsellor was made available to the District Court Judge.

[11]     Subsequent to his conviction, he has also obtained a report from a clinical psychologist relating to his offending.   She undertook a series of risk assessment tests.  She said:

As indicated above Mr H  ’s risk of reoffending is statistically towards the low to moderately low end of the scale ...

[12]     She commended the appellant’s contact with his counsellor and believed that this would go a significant way to avoiding future offending.

[13]     Since these events the appellant has, in his words “thrown himself into his study and research work”.   He has represented Auckland University at an international conference and has been offered the education fellowship by the Foundation for Research Science and Technology that I have mentioned.

[14]     He had prior this offending been offered employment at the end of his degree but that offer has now been withdrawn.   While it is not certain it seems to me probable that that was because of these events.

[15]     Mr H   together with others who have filed affidavits on his behalf who work in IT believe that a conviction will significantly affect his employment prospects.  I see no reason to doubt that assessment.

[16]     To return to the statutory test. The offending does have a serious aspect to it and the offending was repetitive over a significant period and in high public view. On  the  other  hand  it  is  clear  that  this  offending  was  completely  outside  the appellant’s ordinary conduct.  There does seem to be grounds for saying that he had some diminished responsibility for these events.  The seriousness of the offending, therefore, in my view, must be to a degree discounted by that diminished responsibility.

[17]     Secondly, as to the effect on the appellant I accept that it will be substantial. It is clear that it has already caused significant problems within his family and it is clear from his wife’s affidavit that these affects will be heightened should he be convicted.

[18]     Thirdly,  there  is  every  reason  to  accept  what  he  says  about  his  future prospects of employment being significantly affected.  It has been for understandable reasons difficult for the appellant to make his way in New Zealand.  It is appropriate, however, that I acknowledge the effort and energy he has put into trying to learn new skills  and  the  success  he  has  had  in  New Zealand  in  difficult  circumstances. Conviction for this offence could well compromise the efforts he has made to integrate into New Zealand society and to begin to be a productive member.

[19]     Finally  it  is  also  proper  to  acknowledge  the  significant  effort  that  the appellant has made to rehabilitate himself by immediately arranging counselling and a provision of the psychological assessment reassuring as to the future likelihood of offending.

[20]     In these circumstances I am satisfied that the appellant has established the statutory grounds for a discharge without conviction.  I am satisfied, therefore, that the consequence of a conviction would be out of all proportion to his offending here.

[21]     In those circumstances, therefore, I allow the appeal and enter a discharge without conviction with regard to the charge the appellant faces.

Solicitors:

G Newell, Barrister, PO Box 105 444, Auckland, email:  [email protected]

Ronald Young J

J Carlyon, Meredith Connell, PO Box 2213, Auckland, email:  Ju[email protected]