Kovalic v Police - [2019] NZHC 1214

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kovalic v Police

Details

AGLC: Kovalic v Police [2019] NZHC 1214
Case: [2019] NZHC 1214
Decision Date: 30 May 2019

CaseChat Overview and Summary

Kovalic appeals against the District Court's decision to decline his application for a discharge without conviction for a charge of assault with intent to injure. The District Court had found the gravity of the offence to be moderately high and the consequences of conviction, which included a potential impediment to future residency, not to be out of proportion to the gravity of the offence. The High Court assessed the appellant's arguments, which included claims that the District Court overstated the gravity of the offence, understated the consequences of conviction, failed to have due regard to the principle and purpose of rehabilitation, and erred in applying section 107 of the Sentencing Act 2002. The High Court found that the District Court did take a holistic approach to assessing the gravity of the offence, but that it understated the mitigating features, resulting in a lower assessment of the gravity of the offending. However, the High Court concluded that the consequences of conviction, while real and appreciable, were not out of proportion to the gravity of the offence, given that they were ordinary for offending of this nature. The appeal was therefore dismissed.

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