HM v Police - [2015] NZHC 1910

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 203 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-174 [2015] NZHC 1910

BETWEEN
HM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2015

Appearances:

M Utting for Appellant
J V Angelson for Respondent

Judgment:

12 August 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
12 August 2015 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Utting Law, Milford
Meredith Connell, Crown Solicitors, Auckland

HM v NEW ZEALAND POLICE [2015] NZHC 1910 [12 August 2015]

[1] Ms HM pleaded guilty to resisting police and to assault with intent to injure. The injured officer was left with minor swelling to his right thumb. An application for discharge without conviction was made and declined by District Court Judge Maude. Ms HM appeals against the decision declining to discharge her without conviction pursuant to s 107 of the Sentencing Act 2002 and failing that, to appeal the final sentence imposed. Ms HM was sentenced to three months’ community detention and nine months’ supervision.

Background

[2] Ms HM pleaded guilty to the following summary of facts. On 31 August

2014 Ms HM was at her home. The victim and one other police officer attended her address and arrested her on an unrelated matter. She was grossly intoxicated, agitated, irrational and unreasonable. The victim placed handcuffs on the defendant keeping her hands in front of her. The victim escorted Ms HM from the address with his right hand on her right forearm and his left hand on her right shoulder. Ms HM pulled her right arm to her face, leaned forward and bit the victim on his right thumb. Ms HM was taken to ground and police struggled to apply the handcuffs behind her back. Ms HM managed to pin her left hand between her legs and refused to release it, physically resisting police attempts to move her left hand behind her back. The police had to physically restrain Ms HM in the back of the patrol car as she continued to lash out and behave irrationally throughout the entire journey.

[3] While transporting Ms HM to the police station she managed to remove her seat belt and attempted to open the patrol car door stating “I want to jump out!”, and “I just want to die!”

[4] The victim struggled to fasten Ms HM’s seat belt. Ms HM lunged at the

victim attempting to bite his hand.

[5] Ms HM again removed her seat belt and made attempts to open the vehicle door. The victim attempted to re-apply Ms HM’s seat belt. As the victim brought the seat belt down past Ms HM, she bit him on his left little finger. Ms HM then

later lunged at the victim biting him down on his left shoulder and shaking her head violently from side to side.

[6] When Ms HM became…

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 HM v Police

Details

AGLC: HM v Police [2015] NZHC 1910
Case: [2015] NZHC 1910
Decision Date: 12 August 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Ms HM against the District Court's decision to decline her application for discharge without conviction for resisting police and assault with intent to injure. The District Court had sentenced Ms HM to three months’ community detention and nine months’ supervision. Ms HM argued that the consequences of conviction were out of all proportion to the gravity of the offence. The appeal hinged on whether the District Court erred in its assessment of the gravity of the offending and the consequences of conviction under s 107 of the Sentencing Act 2002.

The court considered the appeal grounds, which included whether the District Court failed to consider relevant factors such as the police position, the reasons for the police visit, and Ms HM's state of mind. The court found no error in the District Court's assessment, as it had considered Ms HM's state of mind, her post-traumatic stress disorder, and her efforts to address her alcohol abuse. However, the High Court disagreed with the District Court's weighing of the consequences of conviction against the gravity of the offending. The court found that the long-term consequences for Ms HM's career were out of proportion to the relatively minor harm caused by her actions.

The High Court held that the consequences of conviction were very serious for Ms HM, potentially barring her from pursuing a career in real estate. Given the relatively minor nature of the harm caused and the personal mitigating factors, the court concluded that the adverse effects of the convictions were out of all proportion to the gravity of the offending. Therefore, the appeal was allowed, the convictions were set aside, and Ms HM was discharged without conviction on both counts.

In light of the decision, the court invited submissions on whether suppression should apply to parts of the judgment. Subsequently, the name, address, occupation, or identifying particulars of the appellant were suppressed pursuant to s 203 of the Criminal Procedure Act 2011.

Orders