Linton v Police - [2017] NZHC 2241

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-485-35 [2017] NZHC 2241

DAVID STEWART LINTON

v

NEW ZEALAND POLICE

Hearing: 5 September 2017

Appearances:

B Crowley for Appellant
R De Silva for Respondent

Judgment:

15 September 2017

JUDGMENT OF CLARK J

Introduction

[1] In the District Court Mr Linton faced two charges:

(a) fighting in a public place;1 and

(b) possessing an offensive weapon.2

1 Summary Offences Act 1981, s 7. Maximum penalty: $1,000 fine.
2 Crimes Act 1961, s 202A(4)(a). Maximum penalty: three years’ imprisonment.

LINTON v NEW ZEALAND POLICE [2017] NZHC 2241 [15 September 2017]

[2] Mr Linton was discharged without conviction on the second charge but not the first.3 He appeals the refusal to discharge him without conviction on the charge of fighting in a public place.

Facts

[3] The offending occurred on the night of 1 July 2016. Mr Linton was moderately intoxicated. He became involved in a street fight in central Wellington. He was later arrested and found to be in possession of a knuckleduster which was in his bag.

[4] Mr Linton’s evidence was that he was with a friend who became involved in a fight with several other young men. Mr Linton came to his aid. He said he did not start the fight and did not want to be in it.

[5] Mr Linton’s explanation for being in possession of the knuckleduster was that he had been given it by a friend several weeks earlier. He had forgotten it was in his bag when he took his bag to work. He said he never intended to use it, and made the point that if he had intended to use it he would have made use of it in the fight.

District Court decision

[6] Having observed the fighting charge was not serious in itself and that the charge of possessing an offensive weapon was more serious, the District Court Judge discharged Mr Linton without conviction on the offensive weapon charge and convicted him on the charge of fighting in a public place. The Judge noted the following mitigating factors:

(a) Mr Linton did not intend to use the knuckleduster;

(b)most of Mr Linton’s previous convictions were for offending between the ages of 18 and 21 and the most recent conviction was five years ago;

(c) Mr Linton had “done very well” to put his offending behind him; he

had two children; was a carpenter, had just finished a subcontract working as a foreman on a site in Tokoroa and was about to start a course in project management the goal being future management roles in the construction industry;

(d)Mr Linton’s rehabilitation and “excellent job” mitigated his offending which the Judge assessed as falling at the lower end of seriousness.

[7] The Judge addressed Mr Linton’s close eligibility under the Criminal Records (Clean Slate) Act 2004. The Judge did not see any adverse consequences would arise for Mr Linton if he were convicted…

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 Linton v Police

Details

AGLC: Linton v Police [2017] NZHC 2241
Case: [2017] NZHC 2241
Decision Date: 15 September 2017

CaseChat Overview and Summary

In Linton v Police, David Stewart Linton appealed a conviction in the District Court for fighting in a public place. The respondent, New Zealand Police, argued that the District Court Judge had correctly declined to discharge Linton without conviction. Linton argued that the Judge had erred in his assessment of the consequences of the conviction, which would mean that he would not be eligible for a "clean slate" of his criminal record under the Criminal Records (Clean Slate) Act 2004 until 2024, and that the consequences of the conviction would prevent him from attaining supervisory or managerial roles in the construction industry. The High Court held that the District Court Judge had erred in his proportionality analysis by not identifying the serious consequence of the conviction for Linton's eligibility for a clean slate and by not recognising the real and appreciable risk of the conviction preventing Linton from attaining supervisory or managerial roles in the construction industry. The consequence of the conviction was out of all proportion to the gravity of the offence. The appeal was therefore allowed, and the conviction set aside.

[28] For these reasons the appeal is allowed.The District Court Judge is directed to discharge Mr Linton without conviction on the charge of fighting in a public place.

Orders