L v Police HC Timaru Cri-2007-476-7

[2007] NZHC 233

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2007-476-000007

L

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 March 2007

Counsel:         N Scott for Appellant

A R McGougan for Respondent

Judgment:      30 March 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This is a slightly unusual appeal which follows the entry of a plea in this Court to two charges where the offender pleaded guilty in the confident expectation that he would be diverted.  In fact he was not for reasons which I will explain in a second.

[2]      Mr L   was charged that on 16 December he discharged a firearm in a public place without reasonable excuse and with careless use of a firearm causing injury.   He, when confronted with a disturbance which included the deliberate breaking of a car’s windscreen by someone in the street, used a paint ball gun to fire

shots  at  a  car  in  the  hope  of  marking  it  for  future  identification,  since  it  was

L V NZ POLICE HC TIM CRI-2007-476-000007  30 March 2007

apparently driven by the offender.  In the event he hit the offender and not too distant from a vulnerable part, being his eye.

[3]      Mr L   is a first offender, aged 33 years and was considered by the police to be an appropriate candidate for diversion.  This he pursued with the assistance of a solicitor.  Having won an approval for diversion he appeared in court unrepresented. He pleaded guilty to the two charges in the belief that he would then be diverted, to appear before a community committee so that appropriate terms could be set.  The prosecuting police officer indicated that diversion was considered appropriate, but Judge Erber said that he regarded the case as “too serious” and entered a fine of

$500.

[4]      Complaint is raised on two scores.   First that the plea was entered on an assumption as to diversion (and thereby that it is effectively tainted), and second that the Judge, having indicated his view as to seriousness, did not extend an opportunity to Mr L   to make submissions in mitigation.

[5]      My focus is solely upon the first point.  In my view the plea was tainted.  I think an analogy can be drawn from the case of R v Gemmell [2000] 1 NZLR 695 where the Court of Appeal indicated the appropriate steps to be taken where a Judge was inclined to impose a sentence beyond that which had been indicated at a status hearing.

[6]      What the Court said was that if the sentencing Judge proposed to depart from the earlier sentencing indication, he should offer the offender the opportunity to withdraw an earlier guilty plea, provided it had been entered on the basis of the sentencing indication.   In my view this reasoning applies equally in the present circumstances.  I am in no doubt from the appellant’s affidavit (and indeed from the transcript of the hearing) that Mr L   entered the plea on the basis of an assurance from the police that he was eligible for diversion.  It came as a surprise to everyone when the Judge countermanded that outcome by his assessment that the offending was too serious.  I consider that at that stage it was necessary to offer Mr L   the opportunity to withdraw his pleas, and preferably to take advice as well, given that he was unrepresented but had proceeded with the help of a lawyer earlier.

[7]      In these circumstances Ms McGougan has obtained instructions from the police.  Her submissions include an indication that, given the problems which exist, it may not be inappropriate to leave the plea intact but enter a discharge without conviction upon suitable terms.  I think this is an admirable suggestion.  Mr L   has been given the runaround to the extent that he was sentenced in the District Court and has had to bring the present appeal in order to vindicate his position.  I do not have jurisdiction to direct that this is a case suitable for diversion.  I could vacate the plea and remit the matter back, but that would involve a further appearance in the District Court.   By leaving the plea intact but dealing with the matter pursuant to s106, finality can be achieved today.  Mr Scott has no objection to that course.

[8]      Given that this was a case considered suitable for diversion by the police, I am satisfied that a discharge without conviction is appropriate.  I order one subject to a payment of $150 to St Johns Ambulance and $150 to the Timaru Fire Brigade.

Upon proof of those payments the discharge without conviction will be recorded.

Solicitors:

Norm Scott, Timaru for Appellant

Gresson Dorman & Co, Timaru for Respondent