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Lindsay v The the King

Lindsay v The the King

Case [2022] NZHC 2786 27 October 2022

Rehabilitative Efforts

General Consequences

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000226

[2022] NZHC 2786

BETWEEN
JORDAN SAMUEL LINDSAY

Appellant

AND

THE KING

Respondent

Hearing: 25 October 2022

Appearances:

T D Clee for Appellant (via AVL)

C Anyon-Peters and C S A Fleury for Respondent

Judgment:

27 October 2022

JUDGMENT OF WYLIE J

(Appeal against conviction and sentence)

This judgment was delivered by Justice Wylie On 27 October 2022 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
T D Clee, Auckland
Meredith Connell, Crown Solicitor at Auckland

LINDSAY v R [2022] NZHC 2786 [27 October 2022]

Introduction

[1] On 29 June 2022, the appellant, Jordan Lindsay, applied for a discharge without conviction in the District Court on the North Shore, having earlier pleaded guilty to one charge of assault on a person in a family relationship. Judge A M Fitzgibbon refused Mr Lindsay’s application. Rather she sentenced Mr Lindsay to 40 hours of community work and directed him to make an emotional harm reparation payment of
$500 to the victim.1

[2] Mr Lindsay appeals the refusal to grant him a discharge without conviction. He does not challenge the emotional harm reparation payment ordered.

[3]The appeal is opposed by the Crown.

The offending

[4]Mr Lindsay and the victim were in a relationship.

[5] They had parked at a shopping complex in Whangaparāoa. An argument ensued between them. Mr Lindsay dragged the victim from the vehicle, causing her to strike her head and shoulder on the ground. She suffered a visible bump to the head and bruising to her shoulder area. She did not however seek medical treatment.

[6] When Mr Lindsay was questioned about the incident by the police, he declined to comment.

District Court decision

[7] Judge Fitzgibbon noted the guilty plea and recorded that the charge carried a maximum sentence of two years’ imprisonment. She cited the relevant facts and acknowledged that Mr Lindsay had since completed a six-month anger management course, the CADS Getting Started programme, engaged in a restorative justice conference with the victim and met privately with a counsellor. The restorative justice conference had been positive and Mr Lindsay apologised to the victim. Mr Lindsay’s

1 Police v Lindsay [2022] NZDC 12075.

apology was accepted by her. The Judge also recorded that the victim had requested an alteration to Mr Lindsay’s bail conditions so that she could see him and had “strongly requested” that the Court consider a discharge without conviction, as she felt that Mr Lindsay had been punished enough.

[8] The Judge referred to the relevant statutory provisions contained in ss 106 and 107 of the Sentencing Act 2002. She identified the matters the Court needed to consider and she summarised the respective submissions.

[9]The Judge then:

(a)found that the gravity of Mr Lindsay’s offending was on the low side, taking into account his involvement in rehabilitation. She observed that the violence was relatively limited in the circumstances;

(b)considered…

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 Lindsay v The the King

Details

AGLC: Lindsay v The the King [2022] NZHC 2786
Case: [2022] NZHC 2786
Decision Date: 27 October 2022

CaseChat Overview and Summary

Jordan Lindsay, the appellant, was convicted of assault on a person in a family relationship and appealed against the District Court's decision to refuse a discharge without conviction. Lindsay argued that the consequences of a conviction would be out of proportion to the gravity of the offence. The Crown opposed the appeal. Lindsay argued that the Judge should have given more weight to the evidence of his future travel and study plans and erred in not accepting the victim's view that he should be discharged without conviction. The Crown argued that the Judge had not erred in her consideration of the evidence and that the appeal should be dismissed.

The Court found that the Judge had correctly considered the gravity of the offence and the consequences of a conviction. The Court found that Lindsay's evidence of the consequences of a conviction were vague and speculative, and that there was no specific evidence in relation to how a conviction might impact on Lindsay's study prospects. The Court found that the Judge was correct to find that no adverse consequences of a conviction had been made out and that therefore it could not be said that the consequences of a conviction were out of proportion to the gravity of the offending. The Court found that the Judge did not err in her consideration of Lindsay's application for a discharge without conviction.

The appeal is dismissed.

Orders