K v Police HC Whangarei CRI 2006-488-33

[2006] NZHC 1138

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-488-00033

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 September 2006 (Heard at Whangarei)

Appearances: LS K   appearing in Person

AL Patterson for Respondent

Judgment:      28 September 2006

(ORAL) JUDGMENT OF ASHER J

Solicitors:

LS K  , PO Box 103 Ahipara 0551

PJ Smith, Crown Solicitor, PO Box 146 Whangarei

K V NEW ZEALAND POLICE HC WHA CRI 2006-488-00033  28 September 2006

[1]      K   appeals a decision of the District Court at Kaitaia, to convict and discharge her on an offence of shoplifting.  It is her submission that, while she acknowledges that she was guilty of shoplifting an item worth $3.60, the Judge should have discharged her without conviction.

[2]      Ms K   has represented herself in this appeal.  She has confirmed to me that the complaint is not related to her actual guilt, but to the way in which she was dealt with when it came to penalty.  She challenges the failure to discharge her without conviction.

[3]      She has filed a helpful written statement setting out her position, and has presented oral submissions to me.  Her essential complaint is that the Police during the sentencing process introduced prejudicial information, which was not relevant to her case.  She says that when the matter came up for sentence, the Judge asked why diversion had not been granted.  She says that the Police’s response was as follows:

We really shouldn’t bring this matter up in open Court, but she was recently acquitted of charges that we believe she was probably guilty of.

[4]      She has produced her own statement witnessed by a Justice of the Peace to this effect, and has confirmed this position to me in evidence.  She has not filed any affidavit, and there is no affidavit from her counsel at the District Court, Ms Francis.

[5]      She endeavoured to obtain a transcript when she was sentenced.   The first transcript recorded a portion as “inaudible”.   She asked to listen to the tape.   The matter was referred to the presiding Judge.  The request to listen to the tape was not granted, but the Court was asked to make another attempt to decipher the inaudible portion.  Ultimately, a transcript which contains no reference to any portion as being inaudible, and  which was signed  off by the  District  Court  Judge  involved,  was produced and is on the Court file.  The transcript, as it relates to the diversion issue, which followed a brief plea of mitigation and a request  for a discharge without conviction from Ms K  ’s counsel, Ms Francis, was as follows:

COURT:        Yes, just give me a minute.  Sergeant, why was diversion –

POLICE:         I’m not sure it’s appropriate to bring it up in an open Court

Sir.

COURT:         I see, all right.

POLICE:         In summary the defendant was acquitted on other charges and the police don’t feel it's appropriate in the circumstances.

COURT:         Is there any reparation outstanding here?

[6]      It can be seen that there is no  reference to the statement, referred to  by Ms K  , that the Police believed she was probably guilty of the charges.  I do not consider that I can go behind the Court record.  There is no affidavit evidence before me indicating that it is wrong.  It has been signed off after the issue had been drawn to the attention of the District Court Judge.

[7]      In any event, the notes made at the time of sentencing do not show that the issue of the acquittal of the other charges had any relevance to the learned District Court Judge’s decision.   The submissions the Judge received were brief, and his response was equally brief.  He stated:

Ms K  , your counsel has asked me for a s 106 Discharge.   The difficulty I have with that is that the law says that I am not able to do that unless I can be satisfied that the consequences of the conviction would be out of all proportion to the offence, and I cannot say that.

However, I do not believe that any penalty is required.  Accordingly you are convicted and discharged.

[8]      This was, with respect, the entirely correct approach.   Section 107 of the

Sentencing Act 2002 provides:

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.

[9]      The issue is proportionality.  It was not suggested to the District Court Judge that there were any particular issues of proportionality that arose in relation to a conviction.  Like all persons convicted, the fact of conviction will be awkward and embarrassing for Ms K  .  However, there is nothing in relation to youth or career, or indeed any other factor, which gave rise to a significant proportionality issue.  The learned Judge applied the correct test and reached a decision that in all

the circumstances was open to him.   There was nothing to indicate that he was influenced by an irrelevant factor, namely possible guilt relating to other offending.

[10]     There is nothing to indicate that this application for a discharge was not properly considered on its merits.   It is necessary for there to be something exceptional about the offender or the offence for the discretion to be exercised. Given the brevity of the submission that was made to the learned Judge, the brief sentencing remarks were not  inappropriate.    The  discretion,  of course,  must  be exercised sparingly and with great care: Halligan v Police [1955] NZLR 1185 at

1188 and Smith v Police (1988) 3 CRNZ 262.  It is absolutely unfettered: Police v Roberts [1991] 1 NZLR 205 at 210. There has been nothing put to the Court to indicate that this discretion was improperly exercised on this occasion.

[11]     The decision of the Judge in convicting and discharging was in itself a lenient sentence.  There is no basis upon which this Court could properly interfere with such a sentence.  The appeal is accordingly dismissed.

……………………………….

Asher J