Hicks v Police - [2016] NZHC 2132

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2016-470-24 [2016] NZHC 2132

BETWEEN
CHRISTOPHER VIVIAN HICKS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 September 2016

Counsel:

KM Davies for appellant
AZM Shore and NTC Batts for respondent

Judgment:

8 September 2016

(ORAL) JUDGMENT OF FAIRE J

Solicitors: Public Defence Service, Tauranga
Crown Solicitor, Tauranga

Hicks v New Zealand Police [2016] NZHC 2132 [8 September 2016]

Contents

Introduction ............................................................................................................[1] Factual background ................................................................................................[3] District Court decision ...........................................................................................[7] Legal principles .................................................................................................... [11] Gravity..................................................................................................................[18] Direct and indirect consequences .........................................................................[22] Proportionality assessment ...................................................................................[25] Result....................................................................................................................[28]

Introduction

[1] The appellant, Mr Christopher Vivian Hicks pleaded guilty to one charge of obtaining by deception.1 The charge related to the purchase of goods on TradeMe to the value of $152.30.

[2] He appeals from the District Court Judge’s refusal to grant him a discharge without conviction.2 He says that the District Court Judge erred when balancing the impact on employment with the gravity of the offence.

Factual background

[3] Mr Hicks is 46. At the time of the offending he was living in Wellington. Mr Hicks had previously been in a relationship with the victim. During the relationship she had given him permission to use her credit card to purchase goods online as he did not have one. The relationship ended. On 14 October 2014,
Mr Hicks used the victim’s credit card to purchase a pocket knife for $35. On

1 Crimes Act 1961, s 240(1)(a) and s 421(c), maximum penalty three months’ imprisonment.
2 New Zealand Police v Hicks [2016] NZDC 13024.

29 January 2015, Mr Hicks used the victim’s credit card to purchase a chest protector

for $117.50. The victim did not give Mr Hicks permission to use the credit card.

[4] Mr Hicks told the police that he may have “done it out of spite”. Mr Hicks first appeared in the Wellington District Court and entered pleas of not guilty to two charges of obtaining by deception. A judge-alone trial was set down for 14 April
2016. On 14 April 2016, Mr Hicks intimated that he wished to enter guilty pleas. On

22 April 2016, Mr Hicks appeared in the Tauranga District Court and pleaded guilty to one charge of obtaining by deception under $500.

[5] On 12 July 2016, Mr Hicks appeared in the District Court for sentencing. An affidavit was filed in which Mr Hicks stated that he made both purchases on TradeMe using the ‘Buy Now’ option and that the victims credit card was connected to the TradeMe account as a result of the times he had used it during the relationship. He stated that his comment to the police that he may have “done it out of spite” was a flippant comment in a situation where he was genuinely trying to think what the police were referring to.

[6] Mr Hicks also stated he was willing to take part in restorative justice however the victim declined to participate and Mr Hicks understood her decision.

District Court decision

[7] The Judge…

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 Hicks v Police

Details

AGLC: Hicks v Police [2016] NZHC 2132
Case: [2016] NZHC 2132
Decision Date: 8 September 2016

CaseChat Overview and Summary

In Hicks v Police, the appellant, Mr Christopher Vivian Hicks, appealed against the District Court's decision to refuse his application for a discharge without conviction. The appellant had pleaded guilty to a charge of obtaining by deception for purchasing goods worth $152.30 using someone else's credit card. The appeal centred around the District Court's consideration of the proportionality between the gravity of the offence and the potential consequences of a conviction. The High Court was required to determine whether the District Court had erred in its assessment of the proportionality of the consequences of a conviction against the gravity of the offence.

The court noted that the appellant's offending was of low gravity, considering the value of the goods and the circumstances of the offence. While the appellant had not immediately pleaded guilty, he had shown remorse and was willing to participate in restorative justice and pay reparations. The court found that the direct consequences of a conviction, including the impact on the appellant's employment prospects as an electrician, were not out of proportion to the low-level nature of the offence. The court emphasised that the consequences of a conviction should not usurp the role of professional bodies or employers in determining the significance of a particular conviction. However, in this case, the court held that the consequences were nonetheless disproportionate to the offending committed by the appellant.

The appeal was allowed, and the conviction was quashed. Mr Hicks was discharged without conviction, while the other sentencing orders made in the District Court remained in effect.

Orders