Hughes v Police

[2008] NZCA 275

IN THE COURT OF APPEAL OF NEW ZEALAND

CA228/2008
[2008] NZCA 275

ANDREW ZOLTAN HUGHES

v

NEW ZEALAND POLICE

Hearing:21 July 2008

Court:Baragwanath, Wild and Heath JJ

Counsel:R M Gould for Appellant

T Epati for Crown

Judgment:4 August 2008 at 11am

JUDGMENT OF THE COURT

SPECIAL LEAVE TO APPEAL IS GRANTED ON THE QUESTION SET OUT AT PARA [27].

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]        Mr Hughes seeks special leave to bring a second appeal against sentence.  The application is made under s 144(3) of the Summary Proceedings Act 1957.

[2]        Mr Hughes was charged with two offences under the Summary Offences Act 1981, arising out of incidents that occurred on the night of 4 May 2007: following the female complainant, knowing that his conduct was likely to cause her reasonably to be frightened (s 21(1)(b)) and being found in an enclosed yard without reasonable excuse (s 29(1)(b) of the Act).  He pleaded not guilty to both charges.

[3]        The charges were heard before Judge Harrop, in the District Court at Wellington, on 18 September 2007.  In a reserved judgment, given on 31 October 2008, the Judge found Mr Hughes guilty on both charges and remanded him for sentence: Police v Hughes DC WN CRI 2007-085-3094 31 October 2007.

[4]        The maximum penalty for each offence is a term of imprisonment of three months or a fine not exceeding $2000.  In sentencing Mr Hughes on 7 December 2007, despite a strong submission that Mr Hughes ought to be discharged without conviction, Judge Harrop ordered that Mr Hughes come up for sentence if called upon within six months: Police v Hughes DC WN CRI 2007-085-3094, 7 December 2007.

[5]        Mr Hughes appealed against conviction and sentence on the grounds that the Judge ought to have discharged him without conviction.  On 18 March 2008, Gendall J allowed the appeal, in part: Hughes v Police HC WN CRI 2007-485-155 18 March 2008.  The sentence imposed by Judge Harrop on the s 21(1)(b) charge was upheld, but a discharge without conviction was entered on the s 29(1)(b) offence.

[6]        Mr Hughes sought leave from the High Court to appeal against that Court’s refusal to order a discharge without conviction on the remaining charge. Gendall J dismissed that application, holding that no ground had been made out to justify a second appeal: Hughes v Police HC WN CRI 2007-485-155 16 April 2008.

The threshold test for leave

[7]        Section 144(1) of the Summary Proceedings Act permits an unsuccessful applicant for leave in the High Court to seek special leave to bring a second appeal from this Court.  Section 144(3) provides:

144     Appeal to Court of Appeal

…

(3)     Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.  (Our emphasis.)

[8]        Applying R v Slater [1997] 1 NZLR 211 (CA) at 215, Gendall J observed that the circumstances in which a second appeal will be entertained are narrow in nature. Generally, a second tier appeal is concerned with resolution of points of law, rather than the application of law to the facts of a specific case. That is why a point of general or public importance is ordinarily required if leave were to be granted.

[9]        For present purposes, there are two other considerations relevant to the exercise of the s 144(3) discretion.

[10]     The first relates to the need for the appeal point to have been raised in the general appeal to the High Court.  In Candy v Auckland City Council CA371/02 25 February 2003, McGrath J, for the Court, echoed Slater in referring to “a statutory policy that summary proceedings should in general be finally disposed of following the exercise by one party of the right of appeal to the High Court” (at [14]). He said, at [14] and [15]:

[14] Under s115 of the Summary Proceedings Act a defendant convicted by the District Court has a general right of appeal against both conviction and sentence to the High Court.  Thereafter, reflecting what is a statutory policy that summary proceedings should in general be finally disposed of following the exercise by one party of the right of appeal to the High Court, the High Court and this Court are given by s144 a restricted discretionary jurisdiction to grant either party leave to bring a further appeal.  The Act requires that such a second appeal must be on a question of law arising in the general appeal (s144(1)).  It follows that the judgment of the High Court which the party seeks to challenge must have been asked to address the question. It would be contrary to the policy of general finality of the first appeal to allow leave to bring a second appeal raising a new question of law not raised in the High Court.  Under the terms of s144 leave to appeal to this Court may only be granted for a question of law which by reason of its general or public importance, or for any other reason ought to be submitted to the Court of Appeal for decision. (s144(3)).

[15] It is also well established that, before the High Court or this Court, in the exercise of its discretion, will grant leave or special leave to appeal, that Court will require to be satisfied that there is a tenable argument available on the question of law raised.  Again it would be contrary to the statutory policy to grant leave to argue a point which was considered not seriously arguable by the Court asked to grant leave.  That is so even if the question concerned is of significant interest to or affects numerous members of the public as we are prepared to assume is the case with the present application.

[11]     The second relates to the particular issue of sentence appeals.  It is rare for a second appeal to be allowed on a sentencing point: Waitakere City Council v Hertzke [1997] NZRMA 222 (CA).  Such decisions do not often raise points of principle.

Analysis: Should leave be granted?

[12]     The two points that Ms Gould seeks leave to raise on appeal to this Court are:

a)There is a perception of inconsistency and uncertainty in both the District Court and the High Court about the meaning of s 107 which needs to be resolved.

b)Was s 107 intended to erode the discretion inherent in s 106 or to codify the law set out in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA)?

[13]     The first point is not expressed as question of law.  The second was not specifically argued, either in the District Court or on appeal to the High Court.  If Candy were applied uncritically, special leave to appeal ought to be refused. 

[14]     In the District Court, Ms Gould, for Mr Hughes, sought a discharge under s 106 of the Sentencing Act 2002.  Section 106(1), (2) and (3) and s 107 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.

…

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 all proportion to the gravity of the offence.

[15]     Judge Harrop considered that the test contained in s 107 was “very difficult … to meet” and described it as “obviously a very stiff test”.  He added that, “in a couple of [unnamed] cases [it had been said that s 107] points to an extreme situation, there has to be significant disproportionality of consequence”.  The Judge may have had in mind Police v Devereux HC AK A03/02 27 June 2002 and McDowell v Police HC CHCH A133/02 11 March 2003, both of which are mentioned in Hall’s Sentencing at [SA 107.1].

[16]     The tests stated in those cases are consistent with the way in which Judge Harrop dealt with the application before him.  After pointing to some specific reasons why a conviction would be a disproportionate response to the offending, Judge Harrop said:

[12]   When I come back to the balancing exercise, which is the test I have to consider, I certainly accept there are some adverse consequences here and I also accept that the gravity of the offence is not as serious as many, but my conclusion is that I am not satisfied that the adverse consequences are out of all proportion to the gravity of the offence.  I can accept that there may be a slight disproportion in regard to entering a conviction, but I certainly am not satisfied that this is a case where entering a conviction would be out of all proportion to what you did, and therefore I am not going to discharge you without entering a conviction.  (Our emphasis.)

[17]     We consider that the Judge’s approach reflected the application of s 107 as a high threshold test before a discharge without conviction could be entered.

[18]     More recent authorities suggest that Judge Harrop may have over-stated the s 107 threshold.  The most detailed reasoning to support that approach can be found in a judgment of Miller J, Delaney v Police HC WN CRI 2005-485-22 22 April 2005.  We refer also to an article by Robert Lithgow, Discharge Without Conviction: Shutting the Stable Door Before the Horse is In [2002] NZLJ 405.

[19]     Both Miller J and Mr Lithgow QC point to the origins of the test set out in s 107.  They suggest that, despite the addition of s 107 to the statutory provisions dealing with discharge without conviction, it does not change the test expressed previously in s 42 of the Criminal Justice Act 1954 or s 19 of the Criminal Justice Act 1985.  For example, in Police v Roberts [1991] 1 NZLR 205 (CA) where the Court had held that a discharge without conviction could be granted if “after considering all the relevant circumstances, [discharge] is a proper exercise of the Court’s discretion ‘if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence’” (at 210).

[20]     Miller J accepted that the drafter of s 107 had inverted the language used in Roberts and by Richardson J in the earlier decision in Turner.  Nevertheless, he concluded:

[27] However, it is a reasonable inference from the use of Richardson J’s language that the drafter simply intended to adopt the standard developed by the Courts. That inference is supported by the explanatory notes to clause 96 of the Sentencing and Parole Reform Bill. When reporting back, the Justice and Electoral Committee also described it as ‘guidance’ to the sentencing Judge.

[28] Section 106(1) also provides that section 10 of the Sentencing Act must also be taken into account. That section provides that when sentencing ‘or otherwise dealing with’ an offender, the Court must take into account offers of amends, remedial action, or apologies. Section 106(6) provides:

When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

[29] Against that background, I consider that ‘the gravity of the offence’ should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already suffered by way of reparation, community work, or publicity.

[21] The issue is whether s 144(3) applies, notwithstanding that the specific appeal points (set out at [12] above) were not raised on the general appeal to the High Court.

[22]     On the appeal before Gendall J, the question was whether the Judge had correctly refused a discharge without conviction.  The issue was whether the test he applied was too high.  That is apparent from Gendall J’s summary of Ms Gould’s argument on appeal:

[25] Counsel submitted that Judge Harrop erred, and misdirected himself, when assessing the test contained in s 107 of the Sentencing Act 2002 because he overstated it as being “a very stiff test” and a “very difficult test to meet”. She submitted that the frequency with which a discharge without conviction is apparently granted in the District Court suggests otherwise. Her argument was that for low level offending the test that the adverse consequences of a conviction would outweigh the gravity of the offence is more easily met. She submitted that Judge Harrop was wrong to conclude that because the appellant had defended the charges that somehow added to “the gravity of the offending” and, likewise, the victim’s strong reaction and distress to the incident could not increase its seriousness. The complainant’s wishes and desire not to engage in restorative justice could not be taken into account in determining whether a conviction should be entered and the counsel submitted the Judge erred in taking the complainant’s wishes into account in this regard.

[23]     Although Gendall J did not deal specifically with the nuanced conflict apparent in the High Court decisions on ss 106 and 107, this Court would have the benefit of reasoned views in those judgments on which to draw if leave to appeal were granted.

[24]     It is understandable, given the way the appeal was argued before him, that Gendall J refused leave to appeal.  But, while not put with the precision of the second point on which special leave to appeal is sought (see [12](b) above), the argument before Gendall J reflected the same underlying issue.  However expressed, the question was whether the test applied by Judge Harrop set the bar too high. 

[25]     In our view, these circumstances distinguish Candy from the present case.

[26]     Ms Gould placed impressive testimonials before the sentencing Judge to establish Mr Hughes’ prior good character.  One of the factors on which reliance was placed to obtain a discharge was a desire to join the Police.  It is arguable that, if the lower test articulated by Miller J were accepted, Mr Hughes might have received the benefit of a discharge without conviction.  The exercise of a s 106 discretion is something that occurs every day in District Courts throughout New Zealand.  The proper approach to the exercise of the discretion is a point of law of general or public importance which, in our view, ought to be submitted to this Court for resolution.

Result

[27]     For the reasons given, special leave to appeal is granted on the question: has s 107 created a threshold for the exercise of the discretion to discharge without conviction that is different from the test expressed in Turner and Roberts?

Solicitors:

Crown Law Office, Wellington