Joy v Police

[2014] NZHC 1918

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000040 [2014] NZHC 1918

PUNEET JOY

v

NEW ZEALAND POLICE

Hearing:	14 August 2014
Appearances:	Appellant in person MAJ Elliott for Respondent
Judgment:	14 August 2014

JUDGMENT OF DUNNINGHAM J

[1]      Mr Joy has lodged an appeal against his conviction on a charge of assault under the Summary Offences Act, although it is clear that his submissions primarily address the possibility of applying for a discharge without conviction under s 106 of the Sentencing Act 2002.

Background

[2]      To understand the appeal, it is necessary to explain the circumstances in which he was convicted and sentenced.

[3]      Mr Joy was originally charged with assault with intent to injure under s 193 of the Crimes Act 1961.  He indicated that he would plead not guilty to that charge. The charge related to an incident which occurred on the evening of 6 February 2014 at Mr Joy’s home.  Mr Joy and his wife were arguing.  The victim, his son, became concerned about the argument and told his father to stop.  Mr Joy approached his son

while he was standing by the couch and told him to go away and to mind his own

JOY v NEW ZEALAND POLICE [2014] NZHC 1918 [14 August 2014]

business.  When his son refused to step back, Mr Joy pushed him in the chest with his right hand knocking him back on to the couch.

[4]      The assault was clearly at the lower end of offending and, with the change to the charge and to the summary of facts, Mr Joy agreed with his lawyer that he would plead guilty.

[5]      However, his instructions to his lawyer were to seek a discharge without conviction. This was important to Mr Joy as he is a mental health support worker, he assists  as  a  volunteer  with Alcoholics Anonymous  and  is  well  advanced  in  his completion of papers in applied addiction studies, undertaken through Wellington Institute of Technology (Weltec).  He says he has had to put a halt to his career in mental health, stopping his employment at Pukeko Blue as a mental health support worker as well as his studies at Weltec because he has acquired a conviction leaving him ineligible for a career in this field.  He presents documents which support this claim.

[6]      He was represented in the District Court by his lawyer, Mr Simes.   His lawyer has supplied a letter confirming Mr Joy’s account of what happened in the District Court.   Essentially, before his lawyer could get to his feet to make submissions, the Judge had sentenced Mr Joy.  Mr Joy’s lawyer, Mr Simes confirms that:

I indicated to the Judge what the police had agreed to and the police then confirmed reduction of the charge and the amendment to the summary of facts.  For whatever reason, the presiding Judge immediately sentenced the defendant without calling for any submissions from counsel or even giving counsel the opportunity … It had certainly been my intention to submit that the defendant on this occasion should be discharged without conviction.

[7]      He then goes on to explain the grounds on which he would have sought a discharge. Those include:

(a)      the very difficult family circumstances where Mrs Joy is an Afghan refugee, the oldest son has an anxiety disorder and the youngest son suffers from autism;

(b)the immediate background to the offence was the stress occurring in their marriage as a result of their financial difficulties and their problems with their son;

(c)       the assault was minimal, with no injury whatsoever; (d)         the fact Mr Joy had no relevant previous convictions;

(e)      there would be a significant effect on Mr Joy’s career in the mental health sector.

[8]      Mr Elliott, for the Crown, responsibly accepts that, for whatever reason, an application  for  a  discharge  without  conviction  was  not  pursued,  even  though Mr Joy’s lawyer was instructed to do so and intended to do so.  The Crown therefore accepts that Mr Joy should be given the opportunity to make this application, but without vacating his guilty plea.

[9]      The Crown proposes that this could be effected by leaving Mr Joy’s guilty plea in place but setting aside the conviction so that he can make his application under s 106 of the Sentencing Act 2002.  This could be dealt with by the High Court or referred back to the District Court.

Discussion

[10]     A person who is convicted after pleading guilty to an offence has a right of appeal under s 229 of the Criminal Procedure Act 2011.  The general rule is that the Court will only entertain an appeal in such circumstances if there was evidence of a miscarriage of justice.  I am satisfied that the circumstances in which the conviction was entered and Mr Joy sentenced, contrary to the lawyer’s instructions, are sufficiently exceptional that the appeal should be allowed.

[11]     Mr Joy confirms that his guilty plea will remain in place, but he simply seeks the opportunity to advance submissions on a discharge without conviction.

[12]     I consider that this is most appropriately dealt with in the first instance by the District Court and the  matter is to be referred  back  to the District  Court, with Mr Joy’s guilty plea in place, but for the Court to consider Mr Joy’s submissions on the application of s 106 of the Sentencing Act and, if that application is declined, for sentencing.   However, I note that in my view, there is nothing to suggest that the original sentence should be departed from, if Mr Joy is unsuccessful in his application.

[13]     The result is:

(a)       the appeal against conviction is allowed;

(b)the matter is to be referred back to the District Court on the basis that Mr Joy’s plea of guilty remains in place but he will have the opportunity to apply for a discharge without conviction under s 106 of the Sentencing Act 2002.

Solicitors:

Raymond Donnelly & Co., Christchurch