Kolo v The King

[2023] NZHC 2037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000168

[2023] NZHC 2037

BETWEEN

TUPAI KIETA KOLO

Appellant

AND

THE KING

Respondent

Hearing:

24 July 2023

Appearances:

Appellant in Person

C Purdon for Respondent

Judgment:

2 August 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 2 August 2023 at 4.00 pm.

Registrar/ Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

KOLO v R [2023] NZHC 2037 [2 August 2023]

[1]    Mr Tupai Kolo (the appellant) has pleaded guilty to two charges of assaulting a constable acting in the execution of his duty1 and one charge of disorderly behaviour.2 He appeals against the decision of Judge M-E Sharp delivered in the District Court at Auckland on 17 March 2023 declining his application to be discharged without conviction under s 106 of the Sentencing Act 2002 (the Act), and sentencing him to 12 months’ supervision.3

[2]    The appellant is self-represented. The appellant appeals on the grounds that the decision of Judge Sharp declining his application for discharge without conviction was unfair, and he alleges errors by his former trial counsel, including a failure by his trial counsel to formally apply for a discharge pursuant to s 106 of the Act.

[3]    The Crown oppose the appeal and submit that the Judge did not err in declining the appellant’s application to be discharged without conviction.

Alleged offending

[4]    Around 11.30 pm on 24 January 2020 the appellant and two associates were on Takapuna Beach, Auckland. The appellant and his associates were consuming alcohol and were in a highly intoxicated state.

[5]    A member of the public complained to the Police that the three men were making a lot of noise and disturbing the peace. Two Police officers arrived and attempted to speak with one of the appellant’s associates. Judge Sharp summarised the appellant’s offending as follows:

[2]   The facts are pretty uninteresting, really,  but suffice to say that at   11:38 pm on 24 January 2020, Mr Kolo was at Takapuna Beach with two friends, all were consuming alcohol and highly intoxicated. Police were called by a member of the public. Mr Kolo began shouting at the police officers, telling them to go away and leave his friends alone. He was warned of arrest but did not stop shouting. He was told to move away but did not, was arrested and handcuffed for disorderly behaviour and whilst seated next to a constable in the back seat of the police car, he spat at the constable’s face and whilst being transported to the Henderson custody unit at 12.05 am on 25 January, while Mr Kolo was sitting in the rear passenger seat, he lifted up his right leg and kicked another constable with full force to his left shoulder, as a result of

1      Summary Offences Act 1981, s 10. Maximum penalty six months’ imprisonment.

2      Section 4(1)(a). Maximum penalty $1,000 fine.

3      R v Kolo [2023] NZDC 8897.

which that constable temporary [sic] lost control of the police car and only narrowly missing the centre median barrier. Mr Kolo was then a 39-year-old male, so he must now be 41 or 42. Even though he seems to instruct his counsel otherwise, I consider that [Mr Kolo] has a bad drinking problem.

[6]    The charge of disorderly behaviour arose from the appellant’s shouting at the two police officers, telling them to go away and leave his friend alone. He was warned by the police officers that he would be arrested if he did not calm down, and was told stop shouting and to move away. When the appellant continued shouting at the two police officers he was arrested and handcuffed.

[7]    The first charge of assault on a police officer relates to the appellant’s act of spitting in the face of one of the police officers which resulted in the police placing a spit hood over the appellant’s head.

[8]    The second charge of assault on a police officer relates to the appellant’s act of kicking one of the constables on his left shoulder. As Judge Sharp noted, as a result of the kick the police officer who was driving the Police car at the time, temporarily lost control of the vehicle, swerving toward the centre median barrier and narrowly missing it. The Police officer suffered soreness to his left shoulder and tingling in his left hand as a result of the appellant kicking him.

District Court decision

[9]    In her decision delivered on 17 March 2023, Judge Sharp noted that the appellant was appearing for sentence on “three fairly minor charges” three years later. Having summarised the offending as set out above, the Judge first addressed the application for a discharge without conviction. She said:

[3] Earlier I did indicate that I might consider a s 106 discharge for the defendant if all things were equal and the statutory test met, but I imposed conditions on that, a timetable for compliance. The defendant did not comply and has still not lodged a formal application, but what I was unaware of at the time that he appeared before me, on 22 March 2022, was that he actually had other similar convictions, two in 2013 and one in 2018 for refusing an officer’s request for a blood specimen, obstructing, hindering the police and disorderly behaviour. Clearly, Mr Kolo has a problem with alcohol.

[10]Moving to the sentence she would impose, the Judge said :

[4]        Therefore, the appropriate sentence to be imposed today is one of 12 months’ supervision. I do so and I attach the special condition that the defendant is assessed for alcohol addiction and treated in any programme, residential or non-residential, recommended by that assessment.

[5]        I am mainly concerned with the defendant’s rehabilitation, and I consider that sentence will best give effect to the purposes and principles of the Sentencing Act 2002. I apprehend that both counsel are ad idem that this is an appropriate sentence.

Submissions

Appellant’s submissions

[11]   As I have noted the appellant is self-represented for his appeal. In his affidavit affirmed on 17 July 2023 he confirms he is appealing both his conviction and sentence. He says his concern is that the decision was harsh and unfair for the “price paid for the plea of guilty”.

[12]   The appellant refers to a case reported in the Northern Advocate newspaper on 29 March 2023 in which the defendant was discharged without conviction after punching and spitting in the face of a police officer in Whangārei. The appellant says that the defendant in that case “got a much better deal, after witnesses testified as per article this year.”

[13]   The appellant also alleges “professional incompetence” on the part of his trial counsel, Mr Shane Kilian. The appellant says that Mr Kilian failed: to inform him that a s 106 application had not been filed with the court; to provide the professionalism, conduct, service and duties required; to prepare, assist and support the appellant to have a fair defence against the charges; to disclose information to the appellant upon request; to submit an appeal to the High Court upon request; and failed to understand that the appellant is a human being with rights.

[14]   The appellant alleges that between 2020 and 2023 Mr Kilian refused to: follow the appellant’s instructions; follow advice from the Judge that the case was a summary offence which should be heard in the North Shore District Court; resolve the matter promptly as instructed by the appellant with the consequence that the appellant’s bail conditions were prejudicial to the appellant’s ability to take the steps necessary for his application for discharge without conviction.

[15]   The appellant says that having pleaded not guilty to the charges, until the day before his defended trial Mr Kilian had failed to inform him that: the “battle was lost”; and that he was not prepared to argue the case the way that had previously been agreed; that his counsel had misled the appellant when he asked him if he was prepared for the hearing and said that he was; and that his trial counsel had a “master plan all along” regarding the s 106 application that required a guilty plea, and a written “contract” as a “win/win with words”.

[16]   The appellant says that prior to the day of his sentencing, his trial counsel had failed to inform him to bring family, friends or character references to court as support and to improve the outcome. He says that his trial counsel’s closing argument was going to be written on a piece of paper in Court, and that as the client he had to sign the document to confirm his guilty plea. The appellant says Mr Kilian failed to tell the Judge that: the appellant had ceased drinking alcohol for over two years prior to the sentencing; that he was awaiting medical treatment for a significant heart operation; and that he had been going through a family break-up.

[17]   The appellant says that his trial counsel showed a lack of respect, care and understanding of his legal needs, and he alleges that his trial counsel had no intention of defending him, “but enjoyed adjourning and prolonging the matter as legal aid had advised the client that the counsel requested extra funds” to defend the matter.

[18]   The appellant says that as a result of his counsel’s failure to prepare and file an application discharge pursuant to s 106, the convictions entered and the sentence of 12 month’s supervision imposed by the District Court have adversely affected his future work and employment. The appellant also says that he is concerned about the Courts appeal process because he has been charged with breaching his supervision conditions which is to be heard in the North Shore District Court on 7 August 2023.

[19]   The appellant says that between January 2020 and July 2023 when he was convicted and sentenced his life had changed a great deal. He says that he has lost trust with the legal system and the process of a fair hearing.

Mr Kilian’s affidavit

[20]   The appellant has waived solicitor/client privilege in respect of Mr Kilian. At the request of the Crown Mr Kilian has made an affidavit in which he has responded in detail to the allegations made against him by the appellant.4

[21]   Mr Kilian states that he was assigned by Legal Aid Services as the appellant’s counsel on 7 October 2020. His first court appearance for the appellant was a Case Review Hearing on 20 October 2002, and his instructions received via a mobile call were to proceed to trial. At a subsequent case review hearing held on 11 November 2020, Mr Kilian sought a further case review date to allow time to review full disclosure. The appellant’s bail conditions were varied as requested. At a case review hearing on 26 January 2021 Mr Kilian obtained written instructions from the appellant to confirm not guilty pleas and to elect trial by jury.

[22]   On 6 May 2021 Mr Killian received from the appellant video footage of the appellant recorded on the night of the alleged offending which appeared to support the appellant’s instructions to him that there had been more than just two police officers on the scene. A jury trial date was set for 21 March 2022. Following an amendment of Crown charges, a joint memorandum of counsel was filed on 16 March 2022 stating that despite the election of a jury trial having been made in relation to the original charges, which were electable, the trial jurisdiction for the charges in an amended Crown Charge Notice dated 7 April 2021, was now judge-alone.

[23]   On 21 March 2022 counsel attended Court for the call-over prior to trial. At the call-over Judge B Gibson advised that the Court could accommodate a judge-alone trial on 22 March 2022 before Judge Sharp. Mr Kilian accordingly advised the appellant to meet him early the following morning to discuss his brief of evidence. On 22 March 2022 Mr Kilian says he appeared before Judge Sharp who advised that a judge-alone trial could be accommodated at the North Shore District Court, but that because the matter involved minor offending she suggested the parties discuss the matter to see if it could be resolved. Time was then provided to enable discussion between counsel of possible resolutions.

4      Affidavit of Shane Kilian, affirmed 21 July 2023.

[24]   Mr Kilian says that he had a discussion with the Crown Prosecutor in the absence of the appellant. He says that he showed Crown counsel the video footage that the appellant had provided, and explained to him what the appellant had said would be the consequences of a conviction on him and his business. Mr Kilian says that because the offending was largely, if not solely, driven by excessive alcohol consumption, he understood from his discussions with the Crown prosecutor that if the appellant addressed his underlying alcohol issues and showed the impact of a conviction on business, the Crown would not oppose an application pursuant to s 106 of the Act for a discharge without conviction.

[25]   Mr Kilian says that following his meeting with the Crown prosecutor he met with the appellant and explained the Crown position. He says that the appellant then told him more about the impact convictions would have on his business, because it involved work in education facilities, and stringent vetting checks of contractors in relation to criminal offending before contractors are approved to work in the educational facilities.5 The appellant told Mr Kilian that his work had been on hold for two years because  of the criminal  charges  he was facing  in  the proceeding.  Mr Kilian says that while the appellant maintained his innocence of the offending he wanted the matter to be disposed of. Mr Kilian says that the appellant told him that he would appeal a conviction if the matter proceeded to trial and he was found guilty, however as s 106 discharge would not result in a conviction and no criminal record, he was satisfied with that approach and signed instructions to that effect.

[26]   Mr Kilian has exhibited to his affidavit a typed memorandum signed by the appellant and dated 22 March 2022 which sets out the options the appellant had of: proceeding with a judge-alone defended trial; receiving a sentence indication and considering a plea from there; or pleading guilty to the three charges and applying for a discharge without conviction.

[27]   Later the same day the Crown approach was put before Judge Sharp, who indicated that a s 106 application would be considered and would likely be granted if the conditions outlined by the Crown were satisfied by the appellant. The appellant

5      See Education and Training Act 2020; and Children’s Act 2014.

was required to support an application for a s 106 discharge by proof of his having completed a Community Alcohol and Drug programme (CADS) course, and evidence to confirm how convictions would have  an  impact  on his  employment/business. Mr Kilian says the appellant accepted the Judge’s sentence indication and his guilty pleas to the charges were entered before Judge Sharp.

[28]   Mr Kilian has also exhibited to his affidavit a hand-written instruction which is signed by the appellant and dated 22 March 2022, which provides:

Further to the instructions Judge Sharp has indicated that:

(1)if Mr Kolo completed a CAD’s course;

(2)Can show that it will affect his business; and

(3)The Crown don’t oppose the application (Crown has indicated they will not oppose)

She would be inclined to grant a s 106 application.

I have agreed to enter guilty pleas on the basis of progressing the application for discharge without conviction.

[29]   Mr Kilian says that the appellant was due to file his s 106 submissions and an affidavit in support by 22 May 2022, and the Crown submissions in opposition, if any, were due to be filed by 31 May 2022. The hearing was set down for 10 June 2022. Mr Kilian says that he sent a reporting letter by email to the appellant on 24 March 2022. The letter is also produced and attached to Mr Kilian’s affidavit. The letter sets out the matters that the appellant was required to do if his application for a discharge under s 106 was not to be opposed by the Crown. In this letter Mr Kilian said:

…

It was agreed between the parties that a s106 application (discharge without conviction) would not be opposed by the Crown if we can show that you would be significantly affected in your work by the conviction, and if you undertake a Community Alcohol & Drug Services (CADS) course to address any issues with alcohol.

This was put before the Judge and she indicated that a s106 application would be granted, if we are able to provide evidence of how convictions would impact you at work, and show evidence of completing a CADS course.

On this basis you entered a guilty plea and the matter was put off to sentencing. Please approach your nearest CADS provider and attend the requisite course.

As soon as you have completed the course, please send us completion confirmation.

…

You are next due to appear in the Auckland District Court on 10 June 2022 at 10am for s 106 (Discharge without Conviction) Sentencing. You are required to attend this appearance. If you do not, a warrant to arrest may be issued.

[30]   At the time of the trial  date the appellant’s bail  conditions,  in  place since   6 December 2021, included that he was not to be found intoxicated in a public place. Mr Kilian says that the appellant wanted this condition removed completely but given that the Crown sought for the appellant to complete a CADS course the Crown and the Court deemed it appropriate to vary the condition to prohibit any alcohol consumption. Mr Kilian says the appellant was disgruntled by this bail variation and, despite explanation, wanted it appealed.

[31]   On 20 May 2022 the appellant advised of the dates he had arranged to attend a CADS and Man Alive programme, being dates after the then allocated sentencing date of 10 June 2022. As a consequence the 10 June 2022 sentencing hearing was adjourned on 24 May 2022 to a monitoring date of 8 July 2022.

[32]   On 25 May 2022 Mr Kilian’s office advised the appellant of the new 8 July 2022 date. The appellant was unhappy that it had been adjourned and asked why it had been done without his instructions.   Further discussions between the office,    Mr Kilian and the appellant followed. Later that day Mr Kilian filed an application with the District Court seeking an order to vary the appellant’s bail conditions so as to remove all conditions except the residential condition. This application unopposed by the Crown. The drafted bond was ready for signing by the appellant on 14 July 2022.

[33]   Mr Kilian says that his office staff tried to contact the appellant on 1 July 2022 but he did not answer. An email was then sent to the appellant by Mr Kilian’s office on 1 July 2022 advising that he had a court appearance on Friday of the following week for the purpose of updating the court about whether he had commenced the CADS and Man Alive courses. The email requested the appellant to provide confirmation letters to show that he had started the courses or when he would be starting the courses.  However, an email from the Court sent to Mr Kilian on 7 July

2022 informing him that Judge Sharp had advised that appellant’s matter on 8 July 2022 would not be reached and she had directed that the matter would be rescheduled to 21 October 2022.

[34]   On 8 July 2022 Mr Kilian’s office sent the appellant an email advising him of the new date and again requesting him to provide the s 106 information regarding his enrolment in the CADS and Man Alive programmes. The 8 July email sent to the appellant stated:

Please let us know once you have enrolled into CADS and Man Alive, as completion of the courses are required to get a discharge without conviction. We will also need information about how your job will be impacted if you were to receive a conviction.

[35]   A further email was sent on 11 October 2022 referring to the sentencing date scheduled for 21 October 2022 and following up for the required information. In this email Mr Killian advised the appellant that although the 21 October 22 date had initially been set as a monitoring date, the Court had advised him that it was to be the sentencing date. He said:

We had two matters which we had to deal with for a section 106 – “discharge without conviction” application, the first was to do a CADS course and the second was to provide some evidence of how a conviction was going to affect your employment.

…

Are you urgently able to give us an update as to how the CADS course is going and whether you have completed that yet, or whether you are still in the process of completing it.

Any evidence relating to how the conviction could affect your future employment would also be appreciated.

Please could this information be provided as soon as possible.

[36]   The appellant responded by email on 11 October 2022 advising of various difficulties he had encountered when seeking to enrol in a CADS course which had led him to decide to postpone attending a course until August 2022. He explained however that on 6 August 2022 he had been admitted to hospital for treatment for a heart condition, and that after being discharged he had travelled to Australia to see his sister before she died. He said he had also been admitted to hospital in Australia and

had been unwell since returning to New Zealand resulting in another week spent in the North Shore Hospital. He said that as a result of those matters he had had no time to undertake a CADS course. He said:

My instructions are considering they have downgraded the charges and wouldn’t appeal s 106 I have pleaded guilty is to make application for matter [sic] to be heard in the Te Pae Oranga process.

[37]   By memorandum filed in the Auckland District Court and dated 18 October 2022, Mr Killian advised the District Court of the appellant’s explanation for not having commenced a CADS course, and requested an adjournment of the appellant’s sentencing scheduled for 21 October 2022. In his memorandum, Mr Kilian also advised the Court and the Crown that the appellant wished to apply for the matter to go through the Te Pae Oranga process, and said that he would commence discussion about that with the Crown.

[38]   On 21 October 2022 the sentencing hearing was adjourned to 3 February 2023 without Crown opposition because of the personal matters pertaining to the appellant. The 3 February 2023 date was subsequently adjourned due to flooding in the Auckland District Court building. Mr Kilian says that the appellant was advised of the adjournment on 2 February 2023.

[39]   On 10 March 2023 Mr Kilian’s office emailed the appellant again seeking information to support the s 106 application. The appellant responded by email dated 15 March 2023 saying that he had “been busy with life and circumstances”. He explained that his welfare benefits had been suspended since 7 December 2022, and that he had not gone back to CADS as he needed what funds he had to support his dependants and had little money available to purchase phone credit or petrol to attend CADS. He said that he had stopped drinking and was going through a break up and financial difficulties. He explained that although he had not completed a CADS course but was attending chiropractic appointments. He said he had decided not to receive benefits anymore, and would focus on his health and continue his efforts to become self-employed. The office asked for some proof which he sent, the appellant responding that he wanted the matter resolved.

[40]   Mr Kilian responded asking the appellant to send him a letter from his medical specialist to confirm the health problems he had been experiencing and he said he would contact the Crown to see whether they would oppose the s 106 application given the appellants situation. In his email of 16 March 2023, Mr Kilian explained to the appellant that even if the Crown did not oppose the s 106 application, he had not been able to file any submissions without hearing from the appellant and as a result it was likely that the sentencing hearing would need to be further adjourned. The appellant replied to Mr Kilian on 16 March 2023 saying:

Hey Shane,

I will see you at court tomorrow as i [sic] want this matter to be resolved or seek restoration [sic] justice and have matter dealt at marea [sic].

[41]   On 17 March 2023 the appellant appeared before Judge Sharp for sentencing. Mr Kilian had prepared a letter for the appellant to sign in support of his s 106 application which was submitted to Judge Sharp. The Judge was not prepared to grant any further adjournment of the sentencing and was not satisfied with the information provided in support of the s 106 application. And as noted above, Judge Sharp declined to grant a s 106 discharge without conviction and sentenced the appellant to 12 months supervision. The appellant emailed Mr Kilian following the sentencing with his view of what happened in Court and asking for his assistance with an appeal.

[42]   In response to the appellant’s allegations, Mr Kilian says that he was surprised to read the appellant’s affidavit considering the amount of work he and his firm put into the appellant’s matter as well as the fact that the appellant asked him to assist in his appeal. He says the appellant appears to have copied and pasted various rules of the Lawyer Code of Conduct without supporting evidence or examples, which are therefore difficult to respond to. He says the appellant was well aware of the conditions that he needed to meet to apply for a s 106 application and he also knew that the s 106 application could not be filed without the evidence required to support it.

[43]   In his affidavit Mr Kilian responds to the appellant’s various allegations and says that: the appellant’s instructions were followed; moving the matter to the North Shore District Court was not an option until it was referred to by Judge Sharp on the

day of trial and is not material; the appellant was not interested in resolving the matter earlier, defending his innocence until the possibility of a s 106 application was raised; the appellant was relaxed on bail conditions; counsel was in fact prepared for trial and adjusted to the option of a s 106 application that was explained to the appellant and that he agreed to; and the appellant bringing a support network would not necessarily have impacted his outcome given that supervision was likely inevitable and he had not met the s 106 requirements. Mr Kilian denies all of the allegations made against him and having followed the appellant’s instructions throughout the proceeding.

Crown submissions

[44]   Mr Purdon for the Crown submits that the Judge did not err in declining the appellant’s application for a discharge without conviction.

[45]   Mr Purdon notes that the appellant’s offending involved both spitting in the face of a Police Constable following arrest and, more seriously, kicking a Police Constable in the shoulder while they were driving a Police vehicle on the motorway at over 100 kilometres per hour, causing the Constable to lose control of the vehicle which only narrowly avoided collision with the median barrier. Mr Purdon submits this offending is moderately serious, the charge relating to kicking Constable Wilson involved an inherently dangerous act which nearly caused a serious accident.

[46]   Mr Purdon acknowledges that the appellant’s entry of a guilty plea is a mitigating factor of his offending. He says the appellant’s offending appears to have been driven by a problematic relationship with alcohol. He accepts that the appellant’s offending would have likely to have been assessed as having lower seriousness had he undertaken a CADS course. However, despite the Judge’s indication that a s 106 application could be granted if he were to undertake a CADS course, and his counsel’s repeated prompting of the appellant to complete a CADS course, the appellant failed to undertake a CADS course. Mr Purdon submits that in these circumstances where the appellant has failed to take any steps to address his alcohol problem and to thereby mitigate the seriousness of his offending , the offending is properly assessed as being of a moderately serious nature.

[47]   In regards to the consequences of a conviction, Mr Purdon says as detailed in Mr Kilian’s affidavit, he sent numerous requests to the appellant to provide evidence regarding how a conviction on the present charges would affect the operation of his business. The appellant failed to do so. Mr Purdon says that the appellant has not identified what harm will be caused to him, but he understands it to be financial. Counsel submits that any general consequences to future employment must yield to a potential employer’s right to know about his conduct. Mr Purdon also notes that the appellant has three previous convictions, albeit of a less serious nature than the present offending.

[48]   Mr Purdon submits that the District Court was plainly correct to conclude that the consequences of a conviction are not out of all proportion to the gravity of the appellant’s offending.6

Relevant Law

Conviction appeal

[49]   A conviction appeal can only succeed if the appellant can demonstrate that a miscarriage of justice has occurred. This Court must be satisfied that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any other reason.7 A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trail that has created a real risk that the outcome of the trial was affected or that has resulted in an unfair trial or a trial that was a nullity.8

[50]   In R v Sungsuwan, the Supreme Court set out a two‐step approach to appeals where trial counsel error is relied on as a ground of appeal:9

[65] Where error or irregularity is alleged  and attributed  to counsel, but  that would not have affected the outcome — was not material — there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel’s conduct was such as effectively to deny the

6      R v Smyth [2017] NZCA 530 at [12].

7      Criminal Procedure Act 2011, s 232(2)(b) and (c).

8      Section 232(4).

9      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 . See also R v Scurrah CA159/06, 12 September 2006, at [17].

accused representation to fairly present the defence, prejudice to the outcome will be readily found — and in extreme cases may need no inquiry.

…

[70] Where error or irregularity is alleged  and attributed  to counsel, but  that would not have affected the outcome — was not material — there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel’s conduct was such as effectively to deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found — and in extreme cases may need no inquiry.

[51]   In Hall v R the Court of Appeal held that an appeal based on trial counsel error focusses on the trial process and its outcome rather than on the characterisation of counsel’s conduct.10 The Court identified three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage of justice, including decisions relating to: pleas; elections on whether to give evidence; and the need to advance a defence based on the defendants version of events.11

Appeal against refusal to grant discharge without conviction

[52]   An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.12 The appellant must show that a miscarriage of justice has occurred as a result of a material error by the Judge in entering a conviction, or that a miscarriage of justice has occurred as a result of an error by the Judge applying the correct principles found in s 107 of the Act.13

[53]A discharge without conviction is governed by ss 106 and 107 of the Act:

106Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A discharge under this section is deemed to be an acquittal.

…

10     Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [9], citing R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 as explained in R v Scurrah CA 159/06, 12 September 2006 at [13].

11 At [65].

12     Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].

13 at [12].

107Guidance 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.

[54]   Section 107 is a “gateway through which any discharge without conviction must pass”.14 Section 106 is an evaluative judgment and is not a matter of discretion.15 The Court is required to consider: the gravity of the offence; the direct and indirect consequences of a conviction; and whether the consequences are out of all proportion to the gravity of the offence.16 The ordinary principles governing general appeals apply and this Court must reach its own conclusion on the merits.17

Discussion

Trial counsel error

[55]   Mr Kilian has provided a detailed account of his actions as the appellant’s counsel, and he has exhibited correspondence and documents which confirm the accuracy of his account of events. I note that Mr Kilian was not required for cross-examination.

[56]   I am well satisfied that Mr Kilian has not erred in advising, representing, or carrying out his professional responsibilities to the appellant in any material respect. It is apparent from Mr Kilian’s detailed affidavit, that throughout an unusually prolonged period of defending this relatively minor offending, Mr Kilian and his firm conscientiously followed the appellant’s instructions, communicated with him and acted in his best interests. Between 2020 and 2023 Mr Kilian dealt with the proceedings, including seeking bail variations and adjournments, consistent with the appellant’s instructions. Mr Kilian was clearly prepared to argue the case at trial as the appellant at the wished, however he was able to present and explain the option of a discharge without conviction that was in the appellant’s best interests, as evidenced by the appellant’s acceptance of that course of action and his subsequent guilty plea before the Judge. There is no evidence whatsoever to support the allegation made by

14     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8] .

15     At [11]; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]–[13].

16     Blythe v R, above n 15.

17     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

the appellant that Mr Kilian prolonged the proceedings for his own benefit. What is quite clear is that the proceedings were prolonged because of the appellant’s failure to take the steps required to provide a proper foundation for the proposed s 106 application which was his responsibility and outside the control of Mr Kilian. Other delays were due to Court scheduling and to the Court flooding.

[57]   I find that Mr Kilian did not err by not formally submitting an application for a s 106 discharge in circumstances where the appellant was yet to undertake a CADS course and where the appellant had failed to provide information regarding the likely effect of conviction on his employment — despite the many requests for him to do so. The Judge had made it clear that a discharge without conviction would only be available if the appellant could prove that he had completed a CADS course and had presented evidence as the adverse effect of convictions on his employment. The Crown’s indicated lack of objection to a discharge without conviction was also clearly premised on that basis. The appellant was given considerable latitude in terms of time to undertake a CADS course and his counsel could not possibly now be considered responsible for the appellant’s failure to do so. I agree with the Judge’s factual finding that the offending in this matter was alcohol driven, and a failure to address that issue through external help led to the inevitable result of a sentence of supervision. I also agree with Mr Kilian’s comment in his affidavit that having the appellant’s family, friends or character references in Court for sentencing would not have altered this outcome in light of the appellant’s actions.

[58]   I am accordingly satisfied that there has been no miscarriage of justice due to the appellant’s trial counsel. No counsel error alleged by the appellant relates to particular conduct or any particular irregularity that could possibly have resulted in a real risk that it affected the outcome. As explained by the Supreme Court in Sungsuwan, where that is the situation, no further scrutiny of counsel’s conduct is necessary.18

18     R v Sungsuwan, above n 9, at [70].

Refusal to grant discharge without conviction

[59]   I am also satisfied that no miscarriage of justice has occurred as a result of a material error by the Judge in entering a conviction. While the gravity of the appellant’s offending is relatively low, it is increased by his failure to address the underlying causing being his relationship with alcohol. The Judge made it clear that she would only consider an application for a s 106 discharge if the appellant completed a CADS course. The appellant was well aware of this requirement before entering his guilty pleas to the three charges and he was reminded multiple times by his counsel of the need for him to undertake a CADS course. The appellant’s failure to do so despite having plenty of time to do so, was what removed the possibility of a discharge without conviction being considered and any likelihood of it being granted.

[60]   I also consider that there is a lack of sufficient evidence as to the consequences that a conviction has on the appellant’s business before the Court. In fact, there is no evidence to this effect. It is also relevant that the appellant has previous convictions for disorderly behaviour and refusing an officer’s request for blood specimen in 2018 and 2013 respectively, and therefore any consequences relating to contract work for businesses that do police checks would have likely been present since that offending.

[61]   Although the appellant has not addressed this issue, for completeness I also consider that the Judge’s sentence of 12 months’ supervision was not manifestly excessive. While the appellant has not directly challenged the sentence, an indication of its appropriateness is reflected in counsel’s agreement before the Judge. The Judge’s primary concern was the appellant’s rehabilitation, which I agree that the sentence and the condition that the appellant assessed for alcohol addiction and treated in any programme, residential or non-residential, recommended by that assessment achieves in light of his failure to attend a CADS course on his own account.

Result

[62]Mr Kolo’s appeal against conviction and sentence is dismissed.

Davison J