H v Police HC Wellington CRI-2007-485-155

[2008] NZHC 349

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-155

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 March 2008

Appearances: R Gould for Appellant

M Snape for Respondent

Judgment:      18 March 2008

In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.30pm on 18 March 2008.

RESERVED JUDGMENT OF GENDALL J

[1]      This is an appeal against a decision of District Court Judge S M Harrop declining to discharge the appellant without conviction pursuant to s 106 of the Sentencing Act 2002.

[2]      The appellant had been found guilty after a defended hearing of two offences. These were namely following a complainant knowing that his conduct was likely to

reasonably frighten her (s 21(1)(b) Summary Offences Act 1981), and being found

H V NEW ZEALAND POLICE HC WN CRI-2007-485-155 18 March 2008

without reasonable excuse in an enclosed yard (s 29(1)(b) Summary Offences Act

1981).

[3]      The charges were heard on 18 September 2007 and the Judge delivered a reserved Judgment on 31 October 2007.  He sentenced the appellant on 7 December

2007.  The appellant was convicted on both charges and ordered him to come up for sentence if called upon within six months.   The appellant, through counsel had sought discharge without conviction, but this was declined by the Judge.

The background facts

[4]      The essential facts are derived from the reserved Judgment of Judge Harrop which comprised a careful assessment of the evidence and findings of fact.

[5]      Late in the evening of 4 May 2007, a young lady was driving to her family home in Ohariu Valley about 6 kilometres from Johnsonville.  She was alone.  She was followed closely by a vehicle driven by the appellant who was accompanied by his girlfriend.  The Judge records the factual narrative as follows:

“At about 11.30pm on 4 May, [the complainant] was driving up Cortina Avenue in Johnsonville and noticed Mr H  ’ car come up fast behind her.  She decided to move over, but Mr H  ’ car, as she put it, “hovered quite a bit” alongside her, being parallel with her vehicle at that point for a few seconds.  She was not able to see who was in the car, because it was dark.  Having pulled over she waited for the other car to go ahead of her, which it did.   Shortly afterwards she passed a side street and noticed that Mr H  ’ car was parked with its lights off, having apparently done a U- turn at the entrance to that street, so that it was parked facing towards her. The lights were then turned on and the car began to follow her again.  The car sped up to catch up to her.  She noticed that the lights in the following car were flicked on to high beam and back to low or normal beam again. That happened several times over the next few minutes.  [The complainant] became quite concerned at what was going on and, because she was scared, she drove a little faster than normal wanting to get home.  When she turned right, from the road that leads out to Makara Beach, along Ohariu Valley Road, she was very concerned to see that the vehicle turned and followed hers. There were no other vehicles around and she wished there was one.

She first tried to ring her father on his cellphone but there was no reply, so she rang his home and spoke to his partner, ….   By this time she was screaming and crying and the vehicle continued to be travelling right up behind her.  When she reached her farm, she turned up the long driveway and kept her hand on the horn.  She was relieved to see her father coming

down the driveway towards her and pass her.  She kept going to the house where she felt safe.”

[6]      The Judge found that the vehicle driven by the appellant progressed up the driveway for about 30 metres pass the cattle-stop entrance and then began reversing out, and he accepted the father’s evidence:

“That the pursuit effectively continued onto the property.  I’m sure that if it had not been for his arrival on the scene, Mr H  ’ vehicle would not have stopped and reversed as it did but continued the pursuit.  The reversing was a reaction  to  seeing  the  [father’s]  vehicle  coming  the  other  way  …  they thought they had “better get out of here”.

[7]      The appellant and his girlfriend gave evidence to the effect that they thought that a male who they knew was in the complainant’s car and that was the reason they had taken an interest in it.   But when it was clear it was not that man, they had continued to drive because the appellant’s girlfriend thought it may have been one of his sisters, so they followed the vehicle to Ohariu Valley Road because that was where they understood she lived.  The appellant girlfriend’s evidence was that there was no intention to frighten the driver and that the bumpy road was the cause for variation in the headlights, and that they were simply reversing in the property’s driveway in order to turn around.

[8]      The Judge, having heard from the complainant, her father, and the accused and his girlfriend and seeing them cross-examined said:

“I am entirely satisfied that this was a deliberate pursuit of [the complainant] with at least the requisite level of knowledge on the part of Mr H   that she would be scared by what he did.  I do not accept the denials that he and Ms Turner provided and I find that their innocent explanation for the pursuit unbelievable.”

[9]      The Judge says that the evidence indicated clearly to him that:

“They decided to play a form of foolish prank to try to scare [the complainant].  They certainly had that effect.  I do not accept that the way they followed her vehicle is consistent with what they say they were doing. Instead they were deliberately and for a significant distance “right up her backside” as her father saw.”

[10]    The Judge said that the other explanation concerning a belief as to the appellant’s sisters living in the area was:

“Just too incredible for belief.  The turning down the side street, doing a U- turn, switching the lights off, then resuming the pursuit is entirely consistent with a deliberate pursuit and entirely inconsistent with an innocent following

….  I find that the headlights were, on several occasions, deliberately flashed at [the complainant], which can only have been done to scare her.

[11]     In finding the frightening charge proved beyond reasonable doubt, the Judge said:

“I am satisfied that [the appellant] must at the very least have been aware of the real risk that the way he drove would be likely to frighten the female who was driving the car he pursued.  Indeed, the manner of his driving suggests he intended that she be frightened – a result that he certainly achieved.”

[12]     On the charge of being found in an enclosed yard without reasonable excuse, the Judge found as a fact that the appellant was well inside the boundary of the enclosed  yard, that is the cattle-stop by about  30  metres  and  the  encroachment stopped and the car reversed solely because of the complainant’s father approaching his vehicle.

[13]     The Judge said that the encroachment was greater that would have been necessary for an ordinary turning and reversing, and was satisfied that because the entry onto the property was in the nature of the pursuit itself.   The encroachment onto the driveway was without any reasonable excuse.  Accordingly, he found that charge to be proved beyond reasonable doubt.

Sentencing in the District Court

[14]   When Judge Harrop came to sentence the appellant, he had extensive submissions from Ms Gould.  He referred to the provisions of s 107 and in assessing the gravity of the offending he concluded that although the appellant had an absolute right to plead not guilty, and was not to be penalised for exercising that right, he would:

“Not get the credit for pleading guilty that you would have got if you had, and where I am exercising a discretion, I think that is relevant to my consideration.”

[15]     The Judge said that because of the exercise of that right, the complainant had to come to Court to “relive the whole thing, be cross-examined and challenged about her evidence, and so in my view that is something which adds to the gravity of the offence in reality.”

[16]     The Judge referred to there being two charges, and that the appellant was deliberately following the complainant onto the property, and that he would have kept going but for the approach of the complainant’s father.   The Judge said the victim’s views were very important because of the significant affect it had upon her, she being really frightened on that night, and it has caused her to have ongoing emotional effects.  The Judge concluded that, of its kind, it was a reasonably serious incident, although he said it was important to keep it in perspective, because the gravity of the offence had to be weighed against all offences that could have been committed.  Whilst it was a reasonably serious example of its kind, it was not such in comparison with other offences.

[17]     The Judge referred to the offending as being out of character, the appellant had “a lot of good things going” for him, and was “not someone who is headed for a career of crime”.  He accepted that the appellant had:

“A lot of good qualities and this was not typical of what you would do.”

[18]     The Judge then turned to what he called the other side of the scales, namely the direct and indirect consequences of entering a conviction.  The Judge referred to the age of the appellant, the absence of prior convictions, the offending being out of character and foolish, being inconsiderate rather than deliberate, the appellant’s remorse and willingness to meet the complainant, to pay emotional harm reparation, and that the appellant had done some community work.

[19]     The Judge said that all of things:

“Indicate an entirely appropriate attitude to what has happened, and trying to put things right, but the real thing I have to focus on in this application is not why   a   lenient   sentence   should   be   imposed,   but   what   the   adverse consequences of a conviction would be.”

[20]     The Judge then referred to four consequences that counsel had submitted to him, namely that this was a first conviction of a young person of good character; secondly, possible difficulties with future employment, including the possibility of joining the Police existed; thirdly, some difficulties with travel may arise; and fourthly, general difficulties with having to disclose convictions and being deprived of some opportunities that otherwise might arise.

[21]     The  Judge  accepted  the  entering  of  convictions  would  be  a  significant adverse consequence but the consequences were:

“Fairly vague and general.   I accept that they are not unreal, but they are potential adverse consequences, not something that really goes beyond that, and some of it is what I would call legitimate prejudice, in other words it is right that you suffer some consequences from having a conviction in view of what you did ….”

[22]     The Judge then returned to the balancing exercise, accepting some adverse consequences and also that the gravity of the offence was not as serious as many.  He concluded that:

“I am not satisfied that the adverse consequences are out of all proportion to the gravity of the offence.  I can accept there may be a slight disproportion in regard to entering a conviction, but I certainly am not satisfied that this is a case where entering a conviction would be out of all proportion to what you did ….”

[23]     The Judge gave credit to the appellant for the significant mitigating features and stated that he thought the entry of a conviction on its own was a significant penalty so imposed what he called a suspended sentence.   Which because, in his view:

“There  is  potentially  a  little  problem  there,  and  this  is  really  a  good behaviour bond, just to give you an opportunity to show that that is actually not the correct inference, that in fact you have learnt significantly from what has happened here and that it will not happen again.”

Counsel submissions

[24]     Ms Gould, on behalf of the appellant, submitted that a discretion to discharge without  conviction  is  broad  and  unfettered,  and  that  is  of  course  correct.    She

referred me to a number of authorities and examples.  In the end in matters such as these every application is case-specific.   Ms Gould emphasised the appellant was aged 19, had many good qualities, his offending was out of character and he is unlikely to reoffend.  She said that although the discretion to discharge is wide where the offending is out of character and of a “low level offence”, the appellant was a “good candidate for a discharge without conviction”.

[25]     Counsel submitted that Judge Harrop erred, and misdirected himself, when assessing  the  test  contained  in  s 107  of  the  Sentencing  Act  2002  because  he overstated it as being “a very stiff test” and a “very difficult test to meet”.   She submitted that the frequency with which a discharge without conviction is apparently granted in the District Court suggests otherwise.   Her argument was that for low level  offending  the  test  that  the  adverse  consequences  of  a  conviction  would outweigh the gravity of the offence is more easily met.   She submitted that Judge Harrop was wrong to conclude that because the appellant had defended the charges that somehow added to “the gravity of the offending” and, likewise, the victim’s strong reaction and distress to the incident could not increase its seriousness.  The complainant’s wishes and desire not to engage in restorative justice could not be taken into account in determining whether a conviction should be entered and the counsel submitted the Judge erred in taking the complainant’s wishes into account in this regard.

Discussion

[26]     Recently I discussed the authorities and legal aspects of discharges without conviction (in the case of Kropelnicki v New Zealand Police (CRI-2007-485-63), 13

March 2008), and it is not necessary for me to elaborate upon the well-established law other than to repeat that which  I have said in that case.   Accordingly, the following repeats what I had to say in Kropelnicki at paras [27-32].

[27]     The words “out of all proportion” point to an extreme situation that speaks for itself; Police v Roberts [1991] 1 NZLR 205 at 210. A three-step approach to questions of discharge without conviction arose out of the decision of Fisheries Inspector  v  Turner  [1978] 2 NZLR 233 (CA). The Court must first give

consideration to the gravity of the offending; then the consequences of conviction, and then finally whether those consequences are out of all proportion to the former. The discretion is unfettered with each case to be considered on its merits and in Police v Roberts, Bisson J said (at 209):

“In the final analysis, after considering all the relevant circumstances, [discharge] is a proper exercise of the Court’s discretion ‘if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence’.   That must be the overriding consideration.”

[28]     In Turner Richardson J (as he then was) said, at 241:

“Section 42 confers an unfettered discretion on the Court to give an absolute or conditional discharge without conviction in any case where a minimum penalty is not provided for.  In the exercise of that discretion the Court must take all relevant considerations into account and must ignore all irrelevant considerations.  The real question then is whether the statutory consequences of a conviction may be taken into account and given appropriate weight as considerations relevant to the exercise of the discretion.   Put in that way, there can be only one answer.  In considering the exercise of the discretion under s 42, the Court is required to balance all the relevant public interest considerations as they apply in the particular case; or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the case.  It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction, and to any other relevant circumstances.  And if the direct and indirect consequences of a conviction are, in a Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42.”

[29]     Those cases dealt with s 42 of the Criminal Justice Act 1954 and the later s 19 of the Criminal Justice Act 1985.   But the statutory provisions did not then include what is now s 107 of the Sentencing Act which provides:

“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.”

[30]     The   present   s 107   may   have   been   enacted   to   reflect   the   judicial pronouncement in Fisheries Inspector v Turner.   But the section has inverted the language of Richardson J.  It is expressed in the imperative.  That is, the Court must not discharge an offender without conviction unless satisfied  as to the requisite

matters.   Whilst the exercise of the discretion is to be based upon whether all the relevant circumstances, relating to the offender, as well as the public interest, result in the consequences of the conviction outweighing to a large extent (is out of all proportion to) the gravity of the offence, unless the Court is satisfied that the last (s 107) feature exists, it cannot discharge without conviction.

[31]     There will be infinite circumstances which may justify a Judge exercising the discretion to discharge without conviction.  They are limitless.  They may relate to the personal circumstances of an offender, his or her family, work considerations, past behaviour or actions, future travel or career aspirations, whether the offence is trivial or not; the type of offence; the degree of gravity; and there will be others.

[32]     But  whatever  the  reasons  advanced  for  a  discharge,  there  remains  the statutory prohibition against granting a discharge unless the appellant can pass through the gateway that the Court must be satisfied that the direct  or  indirect consequences of a conviction would be out of all proportion to the gravity of the offending.  The Judge did not err when describing it as a “very stiff test”.

Appellate approach

[33]     Appeals  such  as  these  under  the  Summary  Proceedings  Act  are  general appeals and the traditional approach is that the appellant bears the onus of satisfying the Court that it should differ from the original decision, and any weight given by the appellate Court to the original decision is a matter of judgment.

[34]     The approach has been discussed and modified by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103. The Supreme Court said at para [16]:

“Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower

court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.”

[35]     Where  the  original  decision-maker  may  have  an  advantage  in  terms  of technical expertise or because of the opportunity to assess credibility (where such is important), an appellate Court “may rightly hesitate to conclude that findings of fact or fact and degree are wrong” but the “customary” caution appropriate when facts found by the original decision-maker turn on issues of credibility (emphasis added) is not to be read as a general requirement of deference to the original decision- maker’s assessment of the acceptability and weight to be accorded to the evidence. Caution is appropriate where an appeal is against the exercise of a discretion, as in this case, nevertheless, if satisfied that the Judge’s decision was wrong, it cannot stand.

Discussion

[36]     The Judge was correct in his observations that the gravity of an offence has to be weighed against all offences that may be committed, so matters have to be kept in perspective.  Where does this offence fit on the criminal scale?  A charge under s 21 of the Summary Offences Act 1981 involves a deliberate act, of following, intending to frighten or intimidate, or (as phrased in this case), knowing that the conduct is likely to cause another person to be frightened.  It is not an ingredient of the offence that the victim of the behaviour is actually frightened or intimated.  But, in this case that  was  abundantly clear  from  the  distress  of  the  young  lady,  apparent  in  her evidence in the District Court, that she was seriously frightened.

[37]     The  Judge’s  findings  that  the  actions  were  deliberate  on  the  part  of  the appellant with knowledge that he was frightening the victim takes the behaviour outside a youthful prank.  Although the Judge, at one place in his decision, refers to the ‘decision to play a form of foolish prank to try to scare [the complainant]”, but this was not a “joke gone wrong” but a deliberate act – although out of character and foolish – aimed at terrifying the young woman.

[38]     Ms Gould took issue with Judge Harrop’s remarks that the defending of the changes was “something which adds to the gravity of the offence in reality”.  But I am satisfied that that comment needs to be viewed in the context of the Judge’s sentencing remarks as a whole.  The Judge was not saying that the offence itself is aggravated  by a  plea  of  not  guilty.    Rather,  that  when  coming  to  exercise  the sentencing  function,  including  whether  there  should  be  a  discharge  without conviction under s 106, a Judge can take into account a guilty plea, as signifying insight and contrition, any expression of remorse, a victim’s perspective, and consequences already suffered whether by way of reparation, community work or publicity.   That was how Miller J described it in Delaney & Ors v New Zealand Police (CRI-2005-485-22, 23, 24, 25, 26, 27, 28, High Court, Wellington Registry,

22 April 2005, Miller J).   Judge Harrop made it quite clear that the appellant was “not to be penalised for exercising” the right to plead not guilty but could not get credit for a guilty plea and that was a relevant consideration, along with others in the exercise of the discretion.  It was simply the absence of one mitigating factor.

[39]     The offence was not trivial, nor technical.   It was not a good natured, but misguided, joke.  It was aimed at scaring the complainant by pursuing her.  It was foolish offence, but it fell squarely within the mischief of the section and was, of its kind, not inconsequential.

[40]     My conclusion on the issue of the gravity of the offending accords with that of Judge Harrop, namely that it was reasonably serious.

[41]     I think, however, that the offence against s 29(1)(b) of the Summary Offences Act 1981 of being found without reasonable excuse in an enclosed yard was, in reality, simply an extension of the following and frightening offence.   It was technically a breach of the section and the Judge was correct in finding the charge proved.  Its seriousness, when viewed against other offences under that section, was very minimal and did not involve, as often is the case, any dishonesty.

[42]     Turning to the consequences of convictions being entered.  Nothing has been advanced by way of specific consequences other than those which usually might follow from the entry of a conviction.   The  difficulty for  the  appellant  was  in

establishing or persuading the Court what clear consequences to him would follow from the entry of convictions, and how those would be out of all proportion to the gravity of the offending.  There was no indication of extreme or severe consequences such as loss of employment, harm to family or third parties, medical conditions, severe interference with educational or professional qualifications - by way of examples.   Difficulties of “possibly” joining the Police and “possibly” arising in relation to travel were speculative and properly described by Judge Harrop as “fairly vague and general”, but nevertheless, being “legitimate prejudice” – meaning, in my view, normal consequences to be expected from the entry of a conviction.  Naturally, a young man does not want to have a conviction entered against his name, and that is to be expected.  But it has not been shown that any consequences to the appellant will be other than normally arise with any other first offender whose culpability is reflected in a lenient outcome, as was the case here.

[43]     I  have  independently  come  to  the  same  view  as  Judge  Harrop  that  in undertaking the balancing exercise and accepting some adverse consequences to the appellant, such as is, they are not out of all proportion to the gravity of the offence under s 21(1)(b) of the Summary Offences Act 1981.

[44]     However, I think that, in the circumstances of this case, entry of a conviction on the charge of being found without reasonable excuse in an enclosed yard in breach of s 29(1)(b) is not required.  That charge carries with it some connotation of dishonesty (even though it is not an ingredient of the charge that the prosecution must prove an intention to commit any other offence).   A conviction for such an offence, in the absence of explanation and an understanding of all the circumstances, is capable of being misconstrued as a dishonesty offence.  Because of the facts in this case,  it  was  simply  a  continuation  of  the  primary  offence  of  following  and frightening, and aggravated that offending because it involved going onto the driveway, but is not an offence that warrants a separate conviction.

[45]     It is proper that the appellant be convicted in respect one offence, but, in my view, not two.  He has failed by a wide margin to satisfy the Court that he should be discharged without conviction in respect of the s 21(1)(b) offence, and his appeal in

respect of that is dismissed.    He remains convicted and ordered to come up for sentence if called upon within the next six months, on that charge.

[46]     On the charge of being found in an enclosed yard under s 29(1)(b), his appeal is allowed and he is discharged without conviction on that matter.

J W Gendall

Solicitors:

Rennie Gould, Wellington

Luke, Cunningham & Clere, Wellington