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 likelihood (or unlikelihood) of the consequence occurring will be an important factor, as discussed by the Court in Iosefa v Police:5

[34]  … It is not necessary for the court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.

[35]      However, the nature and seriousness of the consequences and that degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences the more likely it is that the statutory test can be satisfied.

[8]                 That approach was recently affirmed by the Court of Appeal in Maraj v Police, where the Court found that “the likelihood of a risk materialising is a legitimate consideration in the proportionality assessment”.6

[9]                 As I held in Holloway v Police (cited by the Crown), s 107 requires an evaluative  assessment  of  the  threshold  criteria,  as  opposed  to  the  exercise  of a

3      Z (CA447/2012) v R [2012] NZCA 599 at [27] and [28]. See also A (CA747/10) v R [2011]

NZCA 328 at [22].

4      Iosefa v Police HC Christchurch CIV-2004-409-64, 21 April 2005 at [34].

5      At [34] and [35].

6      Maraj v Police [2016] NZCA 279 at [30].

discretion.7 An appeal against the proportionality test under s 107 proceeds therefore on the Austin, Nichols approach: if an appellant can show that the first-instance decision was wrong, he or she is entitled to a fresh assessment by the appellate court.8

Gravity of the offending

[10]             Mr Simmonds, for Mr Hammond submits the Judge had regard to an irrelevant consideration, which he describes as disputed, irrelevant, and highly prejudicial evidence that was put forward in the Police sentencing submissions, which led to the gravity of offending being overstated by the Judge.

[11]             Without criticism of the learned Judge, I agree. This arose because, instead of relying on the summary of facts, to which he had pleaded guilty, Mr Hammond sought to paint a picture of the offending in a somewhat more favourable light. The prosecutor replied by filing a number of statements suggesting the opposite. Those statements strayed materially further from the summary of facts than the appellant’s. I do not go into the detail on either side. The material put forward by the prosecutor was strongly disputed by the defence. Judge Thomas made no ruling as to whether it would be allowed in and he was careful to limit his comments in his judgment. But I have no doubt he would have been influenced in labelling the offending as serious, by the additional “evidence”. I also note statements in the judgment such as, “this was effectively for your own entertainment or gratification in some way”, two references to Mr Hammond’s action as “gratuitous”, and one to it being “selfish”.

[12]             Mr Simmonds argues, and the Crown fairly accepts, that the sentencing should be on the basis of the summary of facts and not on the basis of statements on each side which are disputed and not part of the summary to which Mr Hammond pleaded guilty. I treat any statements falling outside the summary of facts as inadmissible.

[13]             On that basis, recognising the seriousness of the offending coming from an officer of the law and the consequential damage to the rule of law, but also that this

7      Holloway v Police [2017] NZHC 2562 at [19].

8      Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

was intentional, but one-off offending, I would categorise it as moderate-level offending.

[14]             To be clear, I would categorise the offending as being at a low level, but for the very material additional element of Mr Hammond’s being a member of the Police. The charge of common assault is, as the Judge said, at the lower end of violent offences and the victim suffered no physical harm. However, offending undertaken by a sworn police officer on a member of the public in the execution of that police officer’s duty is a significant aggravating factor.

[15]             Taking account of Mr Hammond’s early guilty plea, lack of previous convictions, prior good character, and remorse, I consider the overall gravity of offending reduces from moderate to low. On the material before me (including a 2018 email from the Superintendent of Police commending and thanking Mr Hammond), he has an outstanding record with the Police prior to this offending. Also, I consider it material that Mr Hammond is 26, which is still a relatively immature age. He has hopefully learnt a very significant lesson. He has written a letter of full apology to the victim.

[16]             I therefore consider the Judge was wrong to assess the gravity of offending as moderate and that he did have regard to an irrelevant consideration in doing so.

Direct and indirect consequences of a conviction

[17]             The direct and indirect consequences of a conviction will vary according to the circumstances of the offender. There needs to be a “real and appreciable” risk that such consequences will occur.9

[18]             The appellant submits the Judge failed to acknowledge there was a real and appreciable increase in risk that the appellant would be dismissed from the Police following the entry of a conviction.

[19]Again, I agree.

9      DC (CA47/2013) v R [2013] NZCA 255 at [43].

[20]             There is no question, as the Judge noted, that, conviction or no conviction, the appellant could still face dismissal from his employer, who knows about the offence.

[21]             However, if that risk increases materially as a consequence of a conviction, the Court needs to take that into account. I consider the Judge did acknowledge the risk increases (and implicitly that it increases materially), but he then dismissed the point as “speculative”.

[22]             This is confusing a need to prove something will happen (or as Mr Kang put it, that it is “determinative”), with being satisfied there is a real and appreciable risk, or in a case like this, a real and appreciable increase in an existing risk. I consider such an increase in risk is established on the evidence. The appellant swore on affidavit to that effect, and there is no contradictory evidence.

Consequences not out of all proportion to the offending

[23]             I therefore have to determine whether the consequences of conviction would be out of all proportion to the gravity of the offence.

[24]             I have assessed the overall gravity of offending as low, after taking into account the very significant mitigating features.

[25]             The Police will quite properly follow standard procedure and conduct an employment investigation with full knowledge that Mr Hammond has pleaded guilty to the offence, taking into account any other material they consider relevant, including presumably the statements referred to earlier to which I have not had regard.

[26]             However, I consider it would be out of all proportion to the low gravity of offending for a conviction to materially influence that decision in this case.

Conclusion

[27]             For the reasons outlined above, the appeal is allowed. The conviction and sentence are set aside and the application for discharge without conviction granted.

Hinton J