JMT v R - [2015] NZHC 1936

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTS AND CHILD COMPLAINANTS PURSUANT TO S 204(1) AND S 202(D) CRIMINAL PROCEDURE ACT 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000121 [2015] NZHC 1936

BETWEEN
JMT

Appellant

AND

THE QUEEN Respondent

CRI-2015-404-000122

BETWEEN ST Appellant

ANDTHE QUEEN Respondent

Hearing: 20 July 2014

Appearances:

E J Burton for Appellants
Z R Hamill for Respondents

Judgment:

14 August 2015

JUDGMENT OF WHATA J

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

Registrar/Deputy Registrar
Date:

Solicitors:
Crown Law Office, Wellington
Copy to:
P Hamlin, Manukau City

JMT v THE QUEEN [2015] NZHC 1936 [14 August 2015]

[1] Mr and Mrs T pleaded guilty to six representative counts of assault on a child. They were convicted and sentenced to community detention and community work. They appeal to this Court against the refusal to discharge them without conviction.

[2] They claim:

(a) The District Court Judge failed to properly assess the overall gravity of the offending by omitting to take into account relevant circumstances.

(b)The Judge wrongly applied the law as to whether the consequences must be shown to be certain.

(c) The Judge did not make a proper assessment of the seriousness of the consequences of the conviction.

(d)The Judge treated the consideration of not concealing convictions from the licence authority or future employer as a policy which acted as a bar to giving full weight to the employment consequences or considering other consequences of a conviction.

(e) The proportionality test was not properly applied.

Background

[3] Ms Hamill for the Crown has helpfully provided a detailed narrative of the offending which I adopt. Mr T pleaded guilty to six representative charges of assault on a child based on the following facts:

(a) Between August 2012 and August 2013 M and his younger sibling were arguing over a matter. Mr T confronted M and hit him with the

stick end of a broom three or four times to the middle and side of his back. The broom broke during the assault.

(b)On another occasion during the same span of time, Mr T smacked M with a shoe. He also smacked M with a belt and a broom handle. As a result of these assaults, M was sore to be touched. M was also assaulted by Mr T to the palms of his hands with a wooden spoon, and Mr T smacked him around his body with his hands.

(c) Between April 2012 and August 2013, the appellants’ child D was between five and six years old. During that time Mr T smacked D with a shoe to the head and cheek area, and smacked her with a belt. On a number of occasions he hit her with a wooden spoon. Mr T also smacked her with his hands on other occasions; including when she was aged between four and five years.

(d)Between April 2012…

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 JMT v R

Details

AGLC: JMT v R [2015] NZHC 1936
Case: [2015] NZHC 1936
Decision Date: 14 August 2015

CaseChat Overview and Summary

Mr and Mrs T appealed against their convictions for assaulting their children, arguing that the District Court erred in its assessment of the gravity of the offending and the consequences of conviction. The Court considered the severity of the offending, which involved multiple acts of physical violence towards young children, and the mitigating factors such as the parents' cultural context and efforts towards rehabilitation. The Court found that the District Court's assessment was thorough and proper, and that the seriousness of the offending warranted conviction. The Court also examined the consequences of conviction, noting the potential for significant employment difficulties for Mr and Mrs T, but determined that these consequences were not out of all proportion to the gravity of the offending, given the need for deterrence and the community's strong stance against such abuse. The appeal was dismissed, but the Court noted that the convictions should not heavily weigh in any future employment assessments due to the low risk of reoffending. The identities of the appellants and the children were suppressed under the Criminal Procedure Act 2011.

Orders