Harley v Police - [2018] NZHC 404

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2018-485-3

[2018] NZHC 404

BETWEEN
AIDEN LESLIE NGARONGA HARLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 February 2018

Counsel:

S J Fraser for Appellant

K J Draper for Respondent

Judgment:

13 March 2018

JUDGMENT OF GRICE J

[1] The appellant appeals against his conviction on a charge of injuring with intent to injure under s 193 of the Crimes Act 1961. The maximum penalty for the offence is a term of imprisonment of three years. The District Court on 13 December 2017 refused to discharge him without conviction under s 106 of the Sentencing Act 2002.1

[2]The issues on appeal are:

(a)Was the Judge predisposed to declining the application for discharge without conviction?

1 New Zealand Police v Ngaronga (Harley) [2017] NZDC 28471. Note the District Court ruling is wrongly intituled with the defendant’s last name as Ngaronga when it should be Harley. Ngaronga is one of the defendant’s middle names.

HARLEY v NEW ZEALAND POLICE [2018] NZHC 404 [13 March 2018]

(b)Did the Judge mistake the scope of the s 106 application to extend beyond the assault charge for which it was sought, to the two other driving charges?

(c)Was the threshold for the application met in all the circumstances – particularly considering the appellant’s youth, remorse and the steps taken after the offending to rehabilitate himself?

[3] Discharges without conviction are dealt with in ss 106 and 107 of the Sentencing Act 2002. These provide:

106 Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A discharge under this section is deemed to be an acquittal.

(3)A court discharging an offender under this section may—

(a)make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)loss of, or damage to, property; or

(ii)emotional harm; or

(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)make any order that the court is required to make on conviction.

(3A)Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.

(4)[Repealed]

(5)Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.

107 Guidance for discharge without conviction

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…

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 Harley v Police

Details

AGLC: Harley v Police [2018] NZHC 404
Case: [2018] NZHC 404
Decision Date: 13 March 2018

CaseChat Overview and Summary

The appellant, Aiden Leslie Ngaronga Harley, appeals his conviction for injuring with intent to injure under s 193 of the Crimes Act 1961, challenging the District Court's refusal to discharge him without conviction under s 106 of the Sentencing Act 2002. The appeal raises three primary issues: whether the Judge was predisposed to declining the discharge without conviction application, if the Judge misapprehended the scope of the s 106 application, and if the threshold for the application was met considering the appellant's youth, remorse, and rehabilitation steps.

The court first examined whether the Judge showed predetermination or bias, noting that the judge's comments during a call over did not indicate predetermination or bias but were rather a helpful indication of the options available. The Judge maintained an open mind and requested submissions on the application, indicating no predetermination.

Second, the court addressed whether the Judge misapprehended the charges for which the discharge without conviction was sought. The court found that the Judge correctly focused on the assault charge, considering only this charge when assessing the application. The driving charges were part of the background but were not the primary focus.

Lastly, the court assessed whether the Judge failed to sufficiently consider the appellant's youth and other relevant factors. The court concluded that the Judge appropriately considered the appellant's youth, remorse, and capacity for rehabilitation, finding no error in the Judge's assessment of the direct and indirect consequences of a conviction.

In conclusion, the appeal against the refusal to grant a discharge without conviction under s 106 of the Sentencing Act 2002 is dismissed. The Judge's decision is upheld as the court found no errors in the Judge's consideration of the relevant factors and the application of the legal principles.

Orders