L v Police HC Auckland Cri-2008-404-32

[2008] NZHC 806

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000032

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 June 2008

Appearances: Mr B P Molloy for Appellant

Mr M Hodge for Respondent

Judgment:      3 June 2008

(ORAL) JUDGMENT OF LANG J

[on appeal against refusal to grant discharge without conviction]

Solicitors:

Mr B Molloy, Auckland

Crown Solicitor, Auckland

L V NZ POLICE HC AK CRI-2008-404-000032  3 June 2008

[1]      Mr L   pleaded guilty in the District Court to a charge of trespassing on the campus of Waikato University.

[2]      At sentencing, his counsel sought a discharge without conviction on Mr L  ’s behalf.   The Judge declined, however, to adopt that course and instead convicted Mr L  .   The Judge also fined Mr L   and ordered him to pay Court costs.   Mr L   now appeals to this Court against the failure of the Judge in the District Court to grant a discharge without conviction.

Factual background

[3]      In order to understand the grounds advanced in support of the appeal it is necessary to set out the background to the charge in the District Court in further detail.   I take these from the summary of facts that was presented to the Judge in the District Court, together with other material provided by Mr L   in his affidavit in support of his application for discharge.

The summary of facts

[4]      On  18  January 2007  the  University  of  Waikato  issued  a  trespass  notice against Mr L  .   On 17 April 2007 Mr L   breached the terms of the notice by going on to the campus of the University.    When the police subsequently spoke to him about his action in going onto the campus, he acknowledged that he had received a trespass notice from the University.   He told the police, however, that his intention was to only go there for a few minutes.

[5]      These  bare  facts  are  as  far  as  the  summary  of  facts  takes  the  Court  in determining the factual matrix of Mr L  ’s offending.   In order to give it texture, it is necessary to have regard to the explanation given by Mr L   in support of his application for discharge in the District Court.

Mr L  ’s affidavit

[6]      In his affidavit Mr L   explains that on 18 January 2007 he had been invoiced in a verbal argument with the former boyfriend of his fiancée.     That argument

apparently concerned money that the former boyfriend owed his fiancée.     The former boyfriend reported the incident to the police, and Mr L   received the trespass notice from the University as a result.

[7]      By January 2007 Mr L   had completed his studies at the University.    He was due to attend his graduation later in the year.    As a result, the police advised him at the time that he received the trespass notice that he would need to attend at the police station in order to have the trespass notice varied so as to allow him to attend his graduation ceremony.

[8]      Mr L   says that in mid-2007 he needed to organise funds to hire graduation regalia on behalf of both himself and his fiancée.   When he checked his account, he found that it was in debit when he believed that it should have been substantially in credit.   He endeavoured to contact the bank by telephone to find out what the true position was regarding his account.   He is not fluent in speaking English, however, and was unable to obtain a satisfactory response from the person that he spoke to on the telephone.

[9]      Previously he had dealt with an officer of the bank at the campus branch of the bank.   That officer speaks fluent Mandarin, and Mr L   believed that this officer might be able to help him.   For that reason he asked the bank’s call centre to transfer his call to this bank officer.   Unfortunately, however, the line was engaged.   Mr L   therefore decided to go the bank in person in order to speak with the person who had helped him in the past.

[10]     Mr L   knew that any attempt by him to enter the campus of the University would be in breach of the trespass order.   For that reason he deposes that, before he went to the University, he tried to contact the police officer with whom he had dealt on the trespass matter.   He was unable to contact that officer so he then went to the police station in order to see whether he could talk to another officer and thereby obtain a variation of the trespass order.   There was no one at the reception area of the police station and the police officer that he wished to speak to was not in his office.   Mr L   then, foolishly as he now recognises, concluded that it would not be

a serious issue for him to enter the campus of the University briefly in order to go to the campus branch of the bank.

[11]     He says that when he arrived at the campus he made his way immediately to the bank.   After he had left the bank and he was walking back to the carpark, he was approached by two persons who were known to him to be students of the University. He had had some prior disagreements with these persons regarding the sale of a car.

[12]     Mr L   deposes that the two students began to abuse him when they first saw him.    The abuse then became heated, and one of the students attempted to punch him.   Mr L   pushed the student away and tried to run away.   The two students then chased Mr L   and kept punching and kicking him until they were separated by members of the public.   Mr L   then telephoned the police on his cellphone.   The police arrived shortly afterwards and told everybody to leave.

[13]     The fact that he was on the campus meant, however, that Mr L   was in breach of the terms of the trespass order and he was charged accordingly.     The police also initially charged Mr L   with fighting in a public place but that charge was subsequently withdrawn.

[14]     It is against that background that the appeal needs to be determined.

The approach to be taken on appeal

[15]     A preliminary issue arises because the sentencing notes of the Judge in the District Court are not available.    This appears to have arisen as a result of some malfunction in the recording device that was used to record the Judge’s remarks.   In those circumstances I propose to consider the appeal as if it was an application for discharge de novo.

Decision

[16]     Mr L   relies on s 107 of the Sentencing Act 2002 as providing the necessary jurisdiction to grant a discharge without conviction.     That section provides as follows:

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.

[17]     Mr L   contends that the consequences of a conviction in the present case will be twofold.     First, the conviction will provide a real impediment to his application for a work permit and work visa.    That application is currently being considered by New Zealand Immigration.   Secondly, if he is granted a work permit and work visa Mr L   wishes to apply to join the New Zealand Police.   He believes that a conviction for trespass is also likely to prejudice that application.

[18]     It  is  clear  from  the  authorities  that  the  discretion  to  discharge  without conviction has always been exercised sparingly.     The citation usually quoted in relation  to  the  approach  that  the  Court  should  take  is  that  of  Richardson  J  in Fisheries Inspector v Turner [1978] 2 NZLR 233 where His Honour said at page

241-2:

In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the Court.   It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances.   And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42.

[19]     As  counsel  note,  the  common  law  principles  enunciated  in  Fisheries

Inspector v Turner have now been codified by s 107 of the Act.

[20]     It is clear, however, that the Court is not permitted to 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.

[21]    In order to be satisfied about the direct and indirect consequences of a conviction, the Court must be given some concrete information about what those consequences are likely to be.    In the present case, however, Mr L   has not been able to provide any detailed information to the Court regarding the likely effect that a conviction for trespass will have upon his application for a work permit and work visa.   The most that he has been able to do is provide a letter from the New Zealand Immigration Service in which the Service asks that they be kept up to date regarding the outcome of the charge that he faced.   The letter does not go further and suggest one way or the other what the likely consequence of a conviction will be.

[22]     Similarly, Mr L   has not put before the Court any evidence of the likely consequence that a conviction will have on his application to join the New Zealand Police.    He indicates simply that he does not propose to advance his application further until such time as the ultimate outcome of the criminal process is known.

[23]     In  those  circumstances  I  am  unable  to  be  satisfied  as  to  the  precise consequences that a conviction will bring about.   I cannot say that it is likely that a conviction for trespass will be determinative of his application for a work visa and work permit.    Neither can I say that it is likely that a conviction will prevent him from joining the New Zealand Police.

[24]     The situation is therefore different from those in two cases cited to me during argument.

[25]     In Kenyon v the Police (1994) 12 CRNZ 337  a police officer  had  been charged with punching a female (his girlfriend) in the head.    Heron J granted the officer a discharge without conviction because he took the view (at 342) that the conduct in question would lead to “automatic termination” of his employment by the police.   He considered that that was a consequence that was out of all proportion to the offending in question.

[26]     In Chen v Police HC AK AP28/01 15 June 2001 Nicholson J  was also dealing with an appellant who was subject to immigration requirements.   When that appellant applied for permanent residency he  was informed  that  because of  the

convictions that had been entered against him, the chances of him obtaining such residency were greatly prejudiced and he was unlikely to obtain residency.   In those circumstances the Judge was able to reach the conclusion that the consequences of the conviction were harsh and serious, because they meant that it was likely that the appellant and his family would have to leave New Zealand and forfeit the position that they had created here.

[27]     I would hope that both Immigration New Zealand and the New Zealand Police would not view a conviction in the present case as a determining factor. Rather, I am confident that they would view all of the circumstances in the round before making a decision as to whether or not Mr L   should be granted a work visa and whether he should be permitted to join the police.    After all, it is the overall circumstances of the offending that are important rather than the fact of a conviction per se.

[28]     I accept that this particular offending can be described as relatively minor.   It does not involve any dishonesty or any flagrant breach of a Court order.   Rather, I would categorise it as an error of judgment in which Mr L   decided that his need to obtain advice from the bank would be unlikely to cause any difficulties notwithstanding the fact that it would be in breach of the terms of the trespass notice. Having said that, I accept that a trespass notice is a document that should be scrupulously observed, and that any breach of such a notice should ordinarily attract some form of penalty.

[29]     When considering the seriousness of Mr L  ’s conduct it is also necessary to bear in mind that he did make efforts to contact the police in order to obtain a variation of the trespass notice.   This is not a case in which he decided as the first option to breach the terms of the notice.

[30]     For these reasons I would be surprised if the circumstances of the present offending were such as to disqualify Mr L   from either receiving a work visa or from joining the New Zealand Police.   The ultimate conclusion in relation to each of those matters, must, however, be a matter for Immigration New Zealand and the Police.

[31]     I have therefore reached the view that it would be inappropriate to grant a discharge without conviction.     I cannot be satisfied that the consequences of a conviction  would  be  out  of  all  proportion  to  the  offending  in  question.      The offending was sufficiently serious to warrant some penalty.

[32]     For these reasons the appeal must be dismissed.

Lang J