Hammond v Police - [2019] NZHC 2452

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000212

[2019] NZHC 2452

BETWEEN
MICHAEL HAMMOND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 September 2019

Appearances:

T Simmonds for the Appellant J Kang for the Respondent

Judgment:

27 September 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 27 September 2019 at 2.30 pm

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
Todd Simmonds, Barrister, Auckland Meredith Connell, Auckland

HAMMOND v POLICE [2019] NZHC 2452 [27 September 2019]

[1] On 15 May 2019, Mr Hammond, a police officer, was convicted and sentenced in the Auckland District Court before Judge Thomas to a $500 fine on one charge of common assault.1 Mr Hammond had pleaded guilty to the charge at an early opportunity and applied for a discharge without conviction.

[2]He appeals the decision to decline his application for a discharge.

Facts

[3] The summary of facts records that Constable Hammond was a serving police officer acting in the execution of his duties on 17 August 2018, assisting with the pursuit of a fleeing vehicle. The road spikes deployed by him eventually brought the fleeing vehicle to a halt.

[4] The victim was a 14-year-old boy who was one of the occupants in the fleeing vehicle. While the victim was arrested and being searched by a fellow officer, Mr Hammond took hold of the victim’s rat’s tail2 and pulled it back with sufficient force to jerk his head back. With a Police-issue seatbelt cutter, he cut off the rat’s tail. The victim suffered no bodily injury. When spoken to, Mr Hammond admitted cutting the hair and said, while searching the victim, he saw cords and cut his rat’s tail without thinking.

Relevant law

[5] Section 106 of the Sentencing Act 2002 provides that the Court may discharge an offender without conviction following a plea or finding of guilt. Under s 107, the discretion is to be exercised only if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending”.

1 Crimes Act 1961, s 196. Maximum penalty of one year’s imprisonment.
2 A rat’s tail is a colloquial term for a length of hair that is designed to hang down the back of the neck and back.

[6] The disproportionality assessment is to be made according to the three-step approach set out by the Court of Appeal in Z (CA447/2012) v R:3

(a)the Judge must identify the gravity of the offending, including the aggravating and mitigating factors of the offending and the offender;

(b)the Judge must identify the direct and indirect consequences for the offender; and

(c)the Judge must consider whether those consequences are out of all proportion to the gravity of the offending.

[7] In considering whether a claimed consequence is out of all proportion to the offending, it is not necessary for the Court to be satisfied that the consequence is inevitable.4 However, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hammond v Police

Details

AGLC: Hammond v Police [2019] NZHC 2452
Case: [2019] NZHC 2452
Decision Date: 27 September 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Michael Hammond, a police officer convicted of common assault, against the decision of the Auckland District Court to decline his application for a discharge without conviction. Hammond had pleaded guilty to the charge and sought a discharge without conviction. The court was required to determine whether the consequences of conviction would be out of all proportion to the gravity of the offending, as outlined in Section 107 of the Sentencing Act 2002. The court considered the three-step approach set out by the Court of Appeal in Z (CA447/2012) v R, which requires the court to identify the gravity of the offending, the direct and indirect consequences for the offender, and whether those consequences are out of all proportion to the gravity of the offending.

The court found that the gravity of the offending was overstated by the Judge due to irrelevant and prejudicial evidence. The court categorised the offending as low-level, considering Hammond's early guilty plea, lack of previous convictions, prior good character, and remorse. The court also found that the Judge failed to acknowledge the real and appreciable increase in risk of Hammond being dismissed from the Police following the entry of a conviction. The court concluded that the consequences of conviction would be out of all proportion to the low gravity of the offending.

The appeal was allowed, the conviction and sentence were set aside, and the application for discharge without conviction was granted.

Orders