James v Police

[2022] NZHC 3061

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-124

[2022] NZHC 3061

BETWEEN

TERRY IVAN JAMES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 November 2022
Appearances:	M Faletanoai-Evalu for Appellant L Fiennes for Respondent
Judgment:	23 November 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 November 2022 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

JAMES v NEW ZEALAND POLICE [2022] NZHC 3061 [23 November 2022]

Introduction

[1]                 Terry James pleaded guilty to a charge of misuse of a telephone.1 His application for a discharge without conviction was declined by Judge Callaghan in the District Court at Christchurch.2 Mr James was sentenced to nine months supervision. He appeals that decision seeking a discharge in this Court.

Background

[2]                 On 6 May 2021, Mr James phoned the Ministry of Justice to discuss reparation he was owed. He became frustrated with the situation and made the following statements:

I’m just at the point where I’m just about to go into a mosque and start shooting you know … I know that sounds pretty bad, but I haven’t had a holiday, I’m suffering from cancer, I’ve got a bad heart and I’m just about to go into a mosque and start shooting because I’m really upset … So, I really need to think. I need to make a public announcement here, and maybe go to  a mosque and start shooting as a public announcement.

[3]                 Mr James ended the call when advised it was being recorded. When spoken to by police he stated he wanted to bring things to a head and the public needed to know victims are not getting what they are owed. He acknowledged what he said was wrong and that he needed to be reprimanded.

[4]                 Mr James swore an affidavit which was provided to the District Court. He stated a motorcycle he purchased for $10,000 was stolen from him about three years ago. It was part of his retirement plan because he expected its value to increase. The bike was not recovered but the offender was convicted. Mr James received weekly reparation payments of $39 for some five months before they abruptly stopped. He was informed the offender was now paying reparation to a victim of more recent offending. He understood this to be because the Ministry thought that victim’s situation was worse than his own. He found this upsetting as he had come to rely on the payment.

1      Telecommunications Act 2001, s 112(1).

2      Police v James [2022] NZDC 15444.

[5]                 Mr James, who is 65, explained he suffers from a heart condition, bowel cancer, is legally blind and has suffered a stroke in the past. Alongside and as a consequence of his physical health, Mr James has suffered from depression and anxiety. He said he has repeatedly been scheduled for surgery to remove the cancer but has been informed there is a risk of him dying on the operating table and so he delays the surgery. Understandably Mr James has experienced long periods of fixating on his conditions. He said his quality of life has suffered and he struggles to complete day to day tasks.

[6]                 About two months before his offending Mr James was the victim of an assault at his home. He has since suffered from post-traumatic stress disorder, evidenced by flashbacks and vivid memories of the attack.

[7]                 Mr James said he is aware what he said on the phone call was completely inappropriate. He apologised for the stress his words must have caused. He explained he was at his wits end while under pressure due to his health and depression. He wanted to say the most shocking thing that came to his mind and draw attention to what he felt was an injustice. He again apologised. He did not make any effort to deny his actions. When arrested and taken to the cells, his cane and protective glasses were taken from him. He understood this was something the police had to do but explained he was helpless in an unfamiliar environment having to crouch over himself to protect his eyes from fluorescent lights. He said he has experienced anxiety and depression as a result of the court process.

District Court decision

[8]                 Judge Callaghan observed Mr James had not offended since 2013 and none of his previous convictions were relevant to the present  charge.  The Judge accepted Mr James was remorseful, did not intend to carry out his threats and was under extreme pressure due to his medical conditions and the non-payment of reparation. However, the Judge observed the threat was serious, alarming and inexcusable especially considering the Christchurch mosque terror attack. The Judge noted the victim had friends who were affected by the terror attack and that she was badly affected by the threats. The Judge considered public denunciation had to weigh in the

assessment of the seriousness of the offending. The Judge assessed the offending as “not very serious but … not less than serious”.3 Later he observed this was “a conviction for an offence at a lower level in the criminal hierarchy”.4

[9]                 Turning to the consequences of conviction, the Judge accepted Mr James’ health issues were matters he had to take into account. He noted there was some suggestion Mr James may be unable to access residential care if convicted but the Judge did not expect that risk to eventuate. The Judge did not think a conviction for misuse of a telephone would generally stand in the way of one’s general life in the community. Mr James had not made out any real and discernible consequences of conviction that would outweigh the seriousness of the offending, so the discharge was declined.

[10]              The Judge considered submissions to the effect a sentence of supervision may be difficult for Mr James due to his health issues but thought community corrections could take into account his limitations. The Judge thought the only proposed condition, to attend and complete any counselling or intervention to address offending behaviour, was appropriate. The Judge expressed sympathy for Mr James but thought he needed some help and guidance so imposed the sentence of supervision.

Principles on appeal

[11]              A court may grant a discharge without conviction only if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.5 A series of steps are required to be undertaken when determining whether to grant a discharge without conviction:

(a)first, the gravity of the offending must be assessed by considering the aggravating and mitigating circumstances of the offending and offender;

3 At [8].

4 At [14].

5      Sentencing Act 2002, s 107.

(b)second, the direct and indirect consequences of a conviction must be identified and a determination made as to whether they are out of all proportion to the gravity of the offending; and

(c)finally, if the court is satisfied the statutory test is made out, it must decide whether to exercise its discretion to grant a discharge to the defendant.

[12]              Appeals against a finding that the consequences of a conviction are not disproportionate to the gravity of the offending proceed by way of rehearing. This Court is required to make its own assessment of whether the statutory criteria has been established.6 If I conclude a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge and a miscarriage of justice, in which case the appeal must be allowed.7

Submissions

Appellant’s submissions

[13]              Mr Faletanoai-Evalu submitted the Court erred in assessing the gravity of the offending as serious and failed to take into account Mr James’ personal mitigating factors. He submitted the Judge erred in finding Mr James’ personal factors could be “reflected in a merciful sentence”. Mr Faletanoai-Evalu contended the Judge did not take these factors into account in assessing gravity and, as a result, incorrectly assessed the gravity of the offending as other than low.

[14]              Mr Faletanoai-Evalu acknowledged there was no direct evidence a conviction would affect Mr James’ mental health but submitted this court could make a common sense assessment, relying on Seiuli v Police.8 It was submitted there is a real sense Mr James is at a breaking point as demonstrated by his disproportionate and irrational offending. A conviction would be a significant consequence for someone who has not

6      H v R [2012] NZCA 198 at [35]-[36].

7      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2015) 28 CRNZ 144 at [12].

8      Seiuli v Police [2012] NZHC 2673 at [20].

offended for some time and who cannot avail himself of the protection of the Criminal Records (Clean) Slate Act 2004.9

Respondent’s submissions

[15]              Ms Fiennes, for the Crown, submitted the Judge’s conclusion the offending was serious was made after his consideration of Mr James’ mitigating features and acceptance these were relevant in assessing the gravity of the offending. In saying this was an available conclusion, she referred to the fact the threat was directed at a vulnerable community, the respondent’s lack of knowledge Mr James could or would not carry out the threat and the fact the threat was intended to shock, harm and force an outcome.

[16]              Ms Fiennes emphasised that, even if the Judge was incorrect in his assessment of the gravity of the offending, the consequences of conviction would not be out of all proportion to the gravity of the offending. Ms Fiennes observed Mr James has a criminal history, including convictions for more serious offences, so this is not a situation where a conviction would result in Mr James acquiring a criminal history where previously he had none. No evidence was provided to support other alleged consequences such as potential prejudice to accessing social services or adverse impacts on Mr James’ mental health.

Analysis

[17]              The Judge described the offending as “serious” although “not very serious”.10 In reaching that conclusion he had particular regard to the impact it had on the recipient of the call, and the need to protect the “vulnerable community” that such racist comments were directed at.11 However, it is also clear that the Judge took into account Mr James’ remorse, lack of intention to carry out the threat and the fact that he, too, was under pressure given all the personal setbacks he was suffering from. In my view, the Judge did not conduct his assessment on the basis that the gravity of Mr James’ offending was high. Indeed, he acknowledged it was at the lower end of the hierarchy

9      Due to previously being indefinitely disqualified from driving, see Criminal Records (Clean Slate) Act 2004, s 7(1)(g).

10 At [8].

11 At [9].

of criminal offending. I do not consider the Judge erred in his assessment of the gravity of the offending.

[18]              However, as the Judge observed and Mr Faletanoai-Evalu acknowledged, the real difficulty for Mr James is that he cannot point to specific consequences of conviction that are out of all proportion to the gravity of the offending. It is not enough that consequences outweigh the gravity of the offending.12 In my view, general references to Mr James’ mental health in connection with his ongoing health issues, especially when there is no direct evidence a conviction would affect these, are not sufficient to satisfy the threshold. The case of Seiuli referred to by Mr Faletanoai- Evalu related to the inference a conviction could eliminate a job applicant at an early stage in times where the job market was tight.13 It does not suggest this court can simply infer this conviction would have a consequence for Mr James’ mental health which is out of all proportion to the gravity of the offending, without supporting evidence.

[19]              While the general consequences associated with a first conviction can be out of all proportion to the gravity of offending in certain circumstances,14 Mr James is not a first time offender. He has been convicted of 12 offences, including assault with a blunt instrument, driving with excess breath alcohol and driving while disqualified. Against that history I do not think an additional conviction for misuse of a telephone would generally stand in the way of his life in the community in a manner which is out of all proportion to the gravity of his offending.

[20]              In the circumstances, I am satisfied the Judge correctly determined the consequences of conviction were not out of all proportion to the gravity of the offending and a discharge should not be granted.

[21]              No specific challenge was levelled at the Judge’s sentence of supervision. In my view, this was an entirely appropriate sentence which may assist Mr James to

12     R v Smyth [2017] NZCA 530 at [12].

13     Seiuli v Police, above n 8.

14     See, for example, J(CA32/21) v R [2021] NZCA 690 at [42]-[50].

address the personal challenges he is facing and which contributed to this offending. Again, no error has been identified in the sentence imposed.

Conclusion

[22]The appeal is dismissed.

Solicitors:

Raymond Donnelly & Co., Christchurch Public Defence Service, Christchurch