L v Police HC New Plymouth CRI 2010-443-2

[2010] NZHC 80

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2010-443-002

BETWEEN  L

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 February 2010

Counsel:         Appellant in person

ST Ellis for Respondent

Judgment:      11 February 2010

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Auld Brewer Mazengarb & McEwen, P O Box 738, New Plymouth for Crown

L V POLICE HC NWP CRI 2010-443-002  11 February 2010

[1]      Mr L   was convicted by Judge Ongley in the Hawera District Court on a charge of wilful damage under s 11(1) of the Summary Offences Act 1981.  He was ordered to pay $200 reparation.  He appeals against his conviction on the ground that he should have been discharged without conviction.

Facts

[2]      The charge arose after Mr L   broke a sign, the property of South Taranaki

District  Council,  in  Regent  Street,  Hawera,  on  the  evening  of  Saturday,  19

December.   He was intoxicated.   He was in the presence of friends.   He swung around on the sign.   The sign broke away from its concrete footing and was left leaning over and loose.   When located a short distance away, Mr L   admitted what he had done and told the police it was a regrettable and spontaneous act on his part.

[3]      The record of the District Court shows that Mr L   spoke to the Duty Solicitor, Mr PJ Mooney.  Mr L   says they discussed the possibility of his being discharged without conviction and of paying reparation.  They agreed $200 was an appropriate figure.  Mr Mooney obtained the $200 and, on his behalf, Mr Mooney advised the Judge he could meet an immediate order for reparation in that sum.

[4]      Mr  Mooney  went  on  to  suggest  to  the  Judge  that  as  Mr L    had  no previous convictions, some alternative to a conviction could be explored.   He is recorded as saying, “Perhaps a s 110 might be the sentence called upon and maybe even a conviction and discharge and order for reparation”.   The Judge’s decision followed immediately.  He said, “Yes, all right.  You will be convicted and ordered to pay the reparation of $200.  You can pay that immediately can you?  All right. Thank you.  That is all”.

[5]      Mr L   says that it was only when he came to pay the reparation that he realised that a  conviction had been entered  against him.   He seeks a discharge without conviction on the grounds that the consequences of a conviction greatly

outweigh the seriousness of offending.  He is a final year medical student.  He has been advised that a criminal conviction has the potential to impact on his career.  It will need to be addressed by the Medical Council when his fitness for registration is considered at the end of the year.  It will also be an issue when he comes to apply to join other professional bodies or to further his training and career, both in New Zealand and overseas.

Discussion

[6]      The Crown, very responsibly if  I may say so,  adopts a neutral position. Ms Ellis refers, in the first instance, to the confusion over whether an appeal against a refusal to discharge without conviction should be a conviction appeal or a sentence appeal: see the discussion of Ellen France J in Lee v Police1 at [14].  That issue has not been finally resolved and, in order to remove any doubt as to jurisdiction, I will amend the notice of appeal to provide for an appeal against both conviction and

sentence.

[7]      Ms Ellis accepts that, as there is information now available to me which was never put before the Judge, it is appropriate for me to look at the matter afresh.  I am satisfied that is the appropriate course.

[8]      The approach to the exercise of the power to discharge without conviction under s 106 of the Sentencing Act 2002, has been authoritatively discussed by the Court of Appeal in R v Hughes2.  The Court held that the sentencing Court must first consider whether the disproportionality test in s 107 is met before considering the discretion to discharge in s 106.  Whether the threshold is reached is a matter of fact requiring judicial assessment.  The factors in forming that assessment under s 107 are likely to be the same factors which form the exercise of the discretion under s 106.  So, the Court said at [12], “Both stages will overlap to some extent”.

[9]      At  [41]  the  Court  summarised  the  factors  required  to  be  considered  in applying the s 107 disproportionality test as being all relevant circumstances of the

1 HC AK CRI 2005-404-028 [27 July 2005]

2 [2009] 3 NZLR 222

offence, the offending and the offender, and the wider interests of the community, including factors required by the Sentencing Act to be taken into account under ss 7,

8, 9 and 10.

[10]     I am left in no doubt whatsoever that the consequences of a conviction in this case would be out of all proportion to the gravity of the offence.  The offending itself was right at the bottom of the scale of criminality.  The damage done was the result of recklessness rather than any deliberate act.   The conduct of Mr L   was spontaneous and ill-judged but without any serious intent to cause damage.   From the time he was spoken to, he accepted responsibility.  He has paid a sum in excess of the cost of repairs which have since been fixed at $50.  He could have done no more to demonstrate his contrition.

[11]     The consequences of a conviction would outweigh the gravity of the offence by a significant margin.   Not only would Mr L   have the stain of a criminal conviction but the special problem that will arise for him as he seeks registration as a doctor, acceptance into relevant professional bodies and seeks to further his training in his career.

Result

[12]     For  these  reasons,  the  appeal  is  allowed.    The  conviction  is  quashed. Mr L   is discharged without conviction, subject to the payment of reparation of

$200.