H v Police HC Masterton CRI 2009-435-4

[2009] NZHC 2239

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI 2009-435-4

H

v

NEW ZEALAND POLICE

Hearing:         15 December 2009 (Heard at Wellington)

Counsel:         M Dixon for Appellant

K Grau for Respondent

Judgment:      15 December 2009

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      At the conclusion of a defended case, the District Court Judge hearing the trial found the appellant had assaulted his partner.   During the course of an angry confrontation between the appellant and his wife, the appellant threw a glass, a teapot and a chair apparently to emphasise his anger at the confrontation with his wife.  There was no suggestion he threw those items at his wife.

[2]      After he threw those items he rushed towards the victim, put both hands around her neck and applied pressure.  The victim said in evidence she had trouble breathing.  She said the appellant squeezed her throat for about three minutes.  She

said that she could hardly breathe.   She tried to stop him and started to cry.   The

H V NEW ZEALAND POLICE HC MAS CRI 2009-435-4  15 December 2009

victim said that the appellant told her he would grip her neck until she died. Eventually he stopped.   There were bruises left on the left side of her neck and a bruise above her right eye.

[3]      The Judge rejected the appellant’s evidence that while he had touched her he had not assaulted her.

[4]      At sentencing the Judge rejected  a plea that the appellant be discharged without conviction (s 106 Sentencing Act 2002).  The Judge ordered the appellant to come up for sentence if called upon within nine months.   In the circumstances independent of any such s 106 application this was a remarkably light sentence.

[5]      The sole ground suggested to the sentencing Judge to justify the submission that the appellant should be discharged without conviction was that a conviction could make for difficulties for the appellant in the Family Court regarding access to his children.  However, in support of this appeal the appellant says:

a)      firstly, he may lose future employment opportunities if he has a conviction for assault thus his conviction would be out of proportion;

b)secondly, he has completed an anger management course since conviction;

c)       thirdly, he was not given the opportunity to make a written application for a discharge without conviction or given sufficient time to instruct his lawyer in the District Court.

[6]      I note  the  appellant  has  now  reconciled  with  his  wife  and  therefore  the difficulties  identified  for  the  appellant  in  the  Family  Court  with  respect  to  a conviction have disappeared.   In passing I note, however, that it would hardly be appropriate for this Court to attempt to hide the facts of this case from the Family Court if it was considering issues of custody and access to children.   The Family Court might well consider these events of relevance.

[7]      To return to the grounds of appeal.  Firstly, no opportunity to make a written application or to instruct his lawyer.  There is no suggestion that at the end of the defended criminal case, the appellant, who was represented by counsel, (although not appellate counsel) asked for an adjournment to make a written application for a discharge without conviction.   There was  no suggestion by the appellant’s then counsel that there were other factors that might be relevant to the application for a discharge that could benefit from an affidavit by the appellant.

[8]      Secondly, I note the appellant has filed an affidavit in support of this appeal. No leave was sought by the appellant to do so.  However, in the interests of justice I have, in a reconsideration of the s 106 application for a discharge, taken into account the factors raised by the appellant in that affidavit.  This is because the grounds on which the discharge are now sought are completely different than the original application.

[9]      The two grounds upon  which it is said, in combination, would justify a discharge without conviction are the fact that the appellant subsequent to his conviction undertook an anger management course and secondly, the claim a conviction for assault will have a significant effect on the appellant’s future employment prospects.

[10]     Section 107 of the Sentencing Act 2002 provides guidance as to when the

Court might discharge an offender without conviction.  It provides as follows:

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.

[11]     This section of course implies no onus of proof; the Court merely needs to be satisfied of the test set out in the section.

[12]     As to the facts this was, in my view, a nasty assault.  The appellant tried to strangle the victim.  H   did so over a significant period of time with sufficient force to cause the victim difficulty in breathing and bruising on her neck.   I therefore

would classify this as a moderate level assault of its type.  It was certainly not at the lower end of such assaults.

[13]     The appellant defended the case.  H   should not be punished for that, for that is his right.  On the other hand, however, he cannot claim remorse.

[14]     As to the disproportionality test in s 107.  The disproportion identified by the appellant is what is said to be difficulties he may have in future employment.  The appellant is currently unemployed.  H   has previously worked as a sports journalist. H   says that he believes he would be unable to work in the media if he has a conviction  for  violence.     In  the  alternative  he  says  he  will  attempt  to  gain employment in real estate or security.  If he is unsuccessful he will look to Australia or even return to China.

[15]     It is impossible to know whether or not a conviction would prevent  the appellant from obtaining any employment of his choice as identified by him.  His only “evidence” is his own opinion, apparently untested.

[16]     The appellant has been in New Zealand since December 2006.  H   has had employment in the meantime but apparently is now unemployed.  There is nothing to suggest, however, that beyond the ordinary consequences of a conviction that there is any special or disproportionate consequence for the appellant.  I do not undervalue the consequences which might arise from such a conviction but the appellant cannot point in any convincing way to anything special to him that may arise from this conviction.   There is nothing to satisfy me that he would be unable to work as a sports journalist or a real estate agent or a security guard.

[17]     As I have said this was a serious domestic assault.  There is nothing in the evidence which would support the proposition that a conviction would be out of all proportion to the gravity of this offending.

[18]     The appeal, therefore, will be dismissed.

Solicitors:

Ronald Young J

M Dixon, Barrister, PO Box 210, Shortland Street, Auckland, email:  matthew[email protected]

K Grau, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]