IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000040
[2019] NZHC 1214
BETWEEN LUKAS KOVALIC
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 May 2019 Appearances:
D Dickinson for the Appellant D R Taylor for the Respondent
Judgment:
30 May 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
David Dickinson, Barrister, Auckland Meredith Connell, Auckland
LUKAS KOVALIC v NEW ZEALAND POLICE [2019] NZHC 1214 [30 May 2019]
[1] Mr Kovalic appeals against a decision of Judge Ronayne in the District Court declining his application for a discharge without conviction on one charge of assault with intent to injure.1
[2] Mr Kovalic was convicted and sentenced to 150 hours of community service and ordered to pay $500 emotional harm reparation.
Background
[3] Mr Kovalic objected to Loviana Lavulo’s driving. He “tailgated” her and blasted her with his horn, causing her to pull over. They then had an argument through her driver’s window. Mr Kovalic slapped Ms Lavulo on the face through the window. Ms Lavulo got out of the car to confront him. As she reached for him, Mr Kovalic grabbed her by her arms, overpowered her and pinned her to the ground. Members of the public intervened and separated them. Mr Kovalic got back in his car and drove away. Ms Lavulo suffered a cut on the inside of her bottom lip, swelling of part of her head, a grazed left hand and bruising to her right shoulder.
[4] Ms Lavulo describes the incident as “pretty scary”. She does not drive anymore, and avoids the area where the assault took place.
District Court decision
[5] For a discharge without conviction, the Court has to be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.
[6] The Judge assessed the gravity of the offence, as he is required to do in this context, by reference to the aggravating and mitigating factors of both the offending and the offender.
[7]In relation to mitigating factors, the Judge noted that:
1 New Zealand Police v Kovalic [2019] NZDC 2480.
(a)Mr Kovalic had provided a report from a psychologist, Mr van Niekirk, which “suggested” he had post-traumatic stress disorder as a result of an earlier car crash. However, the Judge considered the report inappropriately argumentative and based on facts different to the summary of facts. (I comment on this later and note that Mr Kovalic had also attended three counselling sessions with Mr van Niekirk prior to his report.)
(b)Mr Kovalic had done the Man Alive programme and completed a defensive driving course.
(c)Mr Kovalic had no previous convictions and so was entitled to the Judge proceeding on the basis he was otherwise of good character.
(d)Mr Kovalic had pleaded guilty, albeit after a period of time and some negotiation.
(e)Mr Kovalic was willing to undertake restorative justice.…
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CaseChat Overview and Summary
This case highlights the importance of taking a holistic approach to assessing the gravity of an offence and the consequences of conviction when considering an application for a discharge without conviction. The High Court found that while the appellant had taken significant steps towards rehabilitation, the nature and seriousness of the offending, as well as the injury and psychological impact on the victim, meant that the consequences of conviction were not out of proportion to the gravity of the offence. This case also reinforces the principle that it is generally appropriate for immigration authorities, rather than the courts, to resolve issues related to an offender's immigration status in New Zealand.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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