Hamill v Police

[2015] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-61 [2015] NZHC 2878

BETWEEN

PHILIP HAMILL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	17 November 2015
Counsel:	J Griffiths for Appellant I S Auld for Respondent
Judgment:	18 November 2015

JUDGMENT OF SIMON FRANCE J

[1]      Mr Hamill appeals the refusal of the District Court to discharge him without conviction on a single charge of assault.1

Facts

[2]      Mr Hamill and his wife were having an argument during the course of which he put his hand over her mouth and then pushed her.  The couple’s three children were observers.

Judgment under appeal

[3]      It is common ground the Court identified the correct approach.  The first step is to assess the gravity of the offence. This assessment focuses not only on the actual conduct, but also the circumstances of the offender.  Second, the direct and indirect

1      New Zealand Police v Hamill [2015] NZDC 15465.  No sentence was imposed, but Mr Hamill was ordered to come up for sentencing if called upon with the following six months.

HAMILL v NZ POLICE [2015] NZHC 2878 [18 November 2015]

consequences of a conviction must be identified.  Finally, the statutory test is to be applied – are the consequences “out of all proportion” to the gravity of the offence?2

[4]      Concerning gravity, the Court concluded it was low to moderate for this type of offending.  By way of aggravating factors, the Court noted the domestic context and the presence of the children.   There were no mitigating factors.   Turning to Mr Hamill, it was noted he had no relevant previous convictions, had entered a plea at the appropriate time and had undertaken one session of counselling.

[5]      Concerning consequences, the Court rejected Mr Hamill’s evidence that there would  be  particular  consequences  for  his  work.    Mr Hamill  is  a  self-employed landscape gardener.  He noted some clients had in the past enquired if he had any convictions.  Further, his business was not succeeding and he was looking for other work, which could be affected by a conviction.  The Court assessed this evidence as too speculative to be given weight.

[6]      The  other  matter  raised  was  the  impact  a  conviction  might  have  on Mr Hamill’s ability to continue to assist a particular school with its sporting pursuits. A letter had been provided by the principal which supported Mr Hamill.   Concern was raised that a conviction would mean Mr Hamill would be unable to pass the required vetting procedure and his valued services would be lost to the school. Concerning this, the Court observed the school should be aware of the offending and could make its own assessment.

[7]      I pause here to observe this did not address the point.  The school was aware of the offending as the principal had provided support for Mr Hamill’s sentencing. A conviction or not was irrelevant to whether the school would know.  That said, the vetting process is aimed at improving the safety of children.  Avoiding its reach is not a basis on which to seek a discharge without conviction.

[8]      Essentially because of the absence of any particular consequences the Judge determined the statutory test was not met.

2      Sentencing Act 2002, s 107; and Z (CA447/12) v R [2012] NZCA 599.

Appeal

[9]      Mr Hamill  submits  the  Court’s  assessment  that  the  gravity  was  low  to moderate overstated matters.  He notes the conduct, consisting of the hand over the mouth and then a push, is at the bottom end of the scale.   The factors relating to Mr Hamill himself only reinforce this assessment.  He is effectively a first offender3 who has since undertaken counselling to improve his understanding of the causes of his actions.  He has also had anger management training.

[10]     Reference is made to Nash v Police as a comparable case.4    There Mr Nash pulled  the  victim’s  hair  resulting  in  her  falling  to  the  ground.    Mr Nash  was remorseful and had undertaken counselling.   Notwithstanding he was not a first offender, the overall gravity was assessed as low.

[11]     I  agree  that  is  also  the  correct  assessment  here.    I  have  no  interest  in over-analysing  labels  such  as  low  or  low  to  moderate,  but  here  the  correct assessment of the gravity is crucial since the consequences are far from out of the ordinary.   I agree with the Judge that the consequences simply reflect the normal incidences of a conviction.

[12]     The starting point for assessing gravity must be that the actual conduct was a push.   I acknowledge it was in front of the children but that cannot elevate the conduct into something it was not.  In terms of assault this is at the bottom end of the range  for  violence.    There  was  no  premeditation  and  it  was  a  momentary  act. Mr Hamill  is  a  first  offender  who  is  remorseful  and  who  has  taken  steps  to understand the causes of his actions, and to develop mechanisms to avoid any repetition.

[13]     I consider these factors mean the general consequences of a conviction would be out of all proportion to the gravity of the offence.  It is therefore not necessary to consider further the matters relied upon to elevate the consequences beyond the

standard. As indicated I do not consider anything out of the ordinary existed.

3      Mr Hamill has a 1991 conviction for careless driving when he was 19 years old and which attracted a $300 fine. He is fairly to be treated as a first offender.

4      Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.

[14]     The appeal is allowed.   The conviction for assault is quashed.   I make an

order discharging Mr Hamill without conviction.

Simon France J

Solicitors:

Public Defence Service, Wellington

Luke Cunningham & Clere, Crown Solicitors, Wellington