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…

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 James v Police

Details

AGLC: James v Police [2022] NZHC 3061
Case: [2022] NZHC 3061
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of James v Police involves an appeal by Terry Ivan James against a decision by the District Court to decline his application for a discharge without conviction for a charge of misuse of a telephone. James' application was denied, and he was sentenced to nine months of supervision. The appeal was heard by Dunningham J in the High Court of New Zealand at Christchurch. The primary legal issues in this case were whether the gravity of the offence and the consequences of conviction were properly assessed by the District Court when deciding not to grant a discharge without conviction.

Dunningham J examined the District Court's assessment of the gravity of the offence, which involved James making threatening phone calls to the Ministry of Justice. The District Court Judge found the offending to be serious, though not very serious, considering the impact on the recipient and the need to protect the community. The High Court found that the District Court Judge did not err in assessing the gravity of the offence, as he took into account James' remorse, lack of intent to carry out the threat, and the personal pressures James was experiencing.

The central issue was whether the consequences of conviction were out of all proportion to the gravity of the offence. James argued that a conviction would have disproportionate consequences for his mental health, but the High Court found that James did not provide sufficient evidence to support this claim. Given James' prior criminal history, the High Court concluded that an additional conviction would not stand in the way of his life in the community in a manner that is out of all proportion to the gravity of the offence. The Court found no error in the District Court's decision and dismissed the appeal.

The final orders of the Court were that the appeal by Terry Ivan James against the decision of the District Court was dismissed. The sentence of nine months supervision imposed by the District Court was upheld.

Orders