Kolezhitskiy v The Queen

[2013] NZCA 602

IN THE COURT OF APPEAL OF NEW ZEALAND

CA548/2013
[2013] NZCA 602

BETWEEN	YAN IGOREVICH KOLEZHITSKIY Appellant
AND	THE QUEEN Respondent

Hearing:	21 November 2013
Court:	Harrison, Simon France and Dobson JJ
Counsel:	Appellant in Person S B Edwards for Respondent
Judgment:	2 December 2013 at 10 am

JUDGMENT OF THE COURT

Appeal against conviction and sentence dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Yan Kolezhitskiy pleaded guilty in the District Court at Auckland to one charge of carrying an offensive weapon in a public place.  He was convicted and sentenced by Judge Collins to a term of 12 months supervision with normal and special statutory conditions.[1]  He appeals against his conviction and sentence on the ground that he should have been discharged without conviction.

Background

[1]R v Kolezhitskiy DC Auckland CRI-2011-044-3158, 10 July 2013.

1. Shortly after midnight on 13 May 2011 Mr Kolezhitskiy was in a McDonalds car park in the North Shore of Auckland City with a friend.  He became involved in a verbal altercation with four males.  He approached them while holding a flick knife in his right hand, at his side with the blade pointing to the ground.  He swung the knife in a sweeping motion as a threatening or intimidatory gesture.  The police accepted that he was not consciously attempting to stab or slash anyone.  Fortunately, the person in whose direction the blow was directed was able to avoid the knife and escape. 

2. Mr Kolezhitskiy was originally charged summarily with assault with a weapon.  He elected trial by jury.  The jury was unable to reach an agreement and he was discharged.  Mr Kolezhitskiy later pleaded guilty on indictment to an amended charge of possession of the offensive weapon.

3. Mr Kolezhitskiy applied to be discharged without conviction.[2]  Judge Collins carefully adopted the three step approach mandated by this Court.[3]  In summary, he was satisfied that the circumstances of the offending were serious – Mr Kolezhitskiy had no legitimate reason to have possession of the knife; the consequences of a conviction would not be disproportionate – the Judge rejected a submission that a conviction would seriously affect Mr Kolezhitskiy’s rights to travel, work and his mental health; and there was no other ground on a broad assessment of the circumstances which required a discharge. 

Decision

[2]Sentencing Act 2002, ss 106 and 107.

[3]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

1. On appeal Mr Kolezhitskiy submits that the Judge erred in three respects:

   (a)First, he submits that the probation officer’s report was biased in its assessment of him.  The probation officer had expressed the view that Mr Kolezhitskiy’s offending behaviour was attributable to his victim’s stance, poor emotion regulation and alcohol.  The Judge’s endorsement of this conclusion was assisted by the fact that he had presided at trial.  He was satisfied that Mr Kolezhitskiy did present a future risk of reoffending.  This view was certainly open on the facts and on the Judge’s own evaluation.  The Probation Officer’s opinion was not determinative.

   (b)Second, Mr Kolezhitskiy submits that his former counsel wrongly advised him to plead guilty and failed to challenge the police summary of facts.  However, Mr Kolezhitskiy has not provided any material to support this argument and his complaints about some facts recited in the summary are truly peripheral.  The essential facts, which Mr Kolezhitskiy admits, establish his guilt beyond argument.

   (c)Third, Mr Kolezhitskiy submits that the Judge failed to take proper account of the effect of a conviction on his academic prospects.  He tenders a general letter in support.  He also raises the possibility that he may seek to join the military.  However, the Judge was not satisfied that there was any evidence that Mr Kolezhitskiy had a realistic or a reasonable prospect of admission into post-graduate study.  Mr Kolezhitskiy has failed to persuade us that the Judge was wrong or that a possibility that he might enter the military at a later stage would be sufficient.

2. In summary, Mr Kolezhitskiy has failed to satisfy us that the Judge erred in declining to discharge him without conviction.

Result

1. The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent