Hanley v Police - [2019] NZHC 1544

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2019-441-20

[2019] NZHC 1544

BETWEEN
BESSIE MIHIROA HANLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 July 2019

Counsel:

R B Philip for Appellant A Bryant for Respondent

Judgment:

2 July 2019

JUDGMENT OF SIMON FRANCE J

[1] Ms Hanley was convicted after trial of the sole charge she faced, namely indecent assault.1 The sentence imposed was one of 12 months’ supervision, together with reparation of $1,500.2 Ms Hanley appeals the decision of the District Court not to discharge her without conviction,3 and, in the alternative, the length of the term of supervision.

[2] The indecent assault charge embraced a course of conduct carried out by Ms Hanley, at this stage very drunk, on a work colleague. The venue was a local bar. Having similarly but less seriously molested another colleague, Ms Hanley approached the victim:

1      New Zealand Police v Hanley [2019] NZDC 5396; and Crimes Act 1961, s 135; maximum penalty of seven years’ imprisonment.
2      New Zealand Police v Hanley [2019] NZDC 9342.
3      New Zealand Police v Hanley [2019] NZDC 8992.

HANLEY v NZ POLICE [2019] NZHC 1544 [2 July 2019]

(a)she made a vulgar comment about “fingering” the victim;

(b)she lunged at her vagina with a move described as between a grab and a punch;

(c)told not to, Ms Hanley repeated the gesture. On both occasions she contacted the victim on her genital area, albeit over her clothing; and finally

(d)she wrapped her arms around the victim, kissed her on the cheek and muttered about conduct she was going to do, thereby achieving a level of vulgarity that exceeded her initial comments. The District Court described the comments as consisting of “obscene and vulgar sexual things you would like to do to her”.4

[3] Ms Hanley defended the matter, disputing there was any contact, indecency or indecent intent, and claiming it all to be a misinterpretation. Her intention was merely to be friendly to a colleague she thought was down in mood. The Judge accepted the complainant’s evidence, supported as it was by contemporaneous events and comments, and held himself to be satisfied “without hesitation” the prosecution allegations were proved.5

[4] Ms Hanley appeals the conviction under s 232 of the Criminal Procedure Act 2011. She submits she ought to have been discharged without conviction. The power of a court to order a discharge without conviction is set out in s 106 of the Sentencing Act 2002. Section 107 is the threshold which must be met before discretion can be exercised under s 106. Section 107 states:

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.

[5]A determination under s 107 has been held to be a three-stage process:6

4 Police v Hanley, above n 3, at [8].
5 Police…

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.

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Details

Case: [2019] NZHC 1544
Decision Date: 2 July 2019

CaseChat Overview and Summary

The case of Bessie Mihiroa Hanley v New Zealand Police concerns an appeal against a conviction and sentence for indecent assault. The appellant, Ms Hanley, was convicted by the District Court after a trial and sentenced to 12 months' supervision and reparation of $1,500. Ms Hanley appeals the decision of the District Court not to discharge her without conviction and, in the alternative, the length of the term of supervision. The appeal was heard by Simon France J in the High Court of New Zealand, Napier Registry.

The primary legal issue before the court was whether the District Court was correct in its assessment of the gravity of the offence, and if so, whether the consequences of the conviction were out of all proportion to the gravity of the offence, warranting a discharge without conviction under section 106 of the Sentencing Act 2002. A secondary issue was whether the length of the term of supervision was appropriate, considering the rehabilitative perspective.

Simon France J considered the three-stage process for determining whether to discharge an offender without conviction. The court assessed the seriousness or gravity of the offending, taking into account the direct and indirect consequences of a conviction on the offender, and whether the consequences would be out of all proportion to the gravity of the offending. The court rejected the appellant's challenge to the District Court's assessment of the gravity of the offending, finding it to be moderately serious. The court also found that the consequences of the conviction, while significant, were not out of all proportion to the gravity of the offending. In terms of the sentence appeal, the court found that 12 months' supervision was excessive and reduced the term of supervision to six months.

The court declined the appeal against conviction but allowed the appeal against sentence. The sentence of 12 months' supervision was quashed and replaced with a sentence of six months' supervision. The order of reparation remained unchanged.

Orders