Lynskey-Reid v Police
[2016] NZHC 1991
•25 August 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-000054 [2016] NZHC 1991
BETWEEN JACKSON PHILLIP LYNSKEY-REID
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 August 2016 Appearances:
J Lucas for Appellant
E J Henderson and K South for RespondentJudgment:
25 August 2016
JUDGMENT OF DUNNINGHAM J
[1] Mr Lynskey-Reid appeals the decision of the District Court not to grant a discharge without conviction on one charge of wounding with intent to injure. Instead he was sentenced to five months’ community detention on top of the $10,000 he offered to pay the victim as reparation for emotional harm.1
Background
[2] On the night of 12 September 2015, the appellant and his friends showed up at a university students’ party. A fight broke out and the appellant became involved. The victim walked out of the house, saw the fight on the street and went to stop it. As he was walking across the road, the appellant approached him and struck him with a bottle to the back of the head. The victim received a deep wound to the left side of his back near his neck. He also had a cut on his ear, and bruising to the left side of his head. He was treated at Christchurch Hospital and received three internal
stitches and seven external stitches to the wound on his back.
1 Police v Lynskey-Reid [2016] NZDC 10599.
LYNSKEY-REID v NEW ZEALAND POLICE [2016] NZHC 1991 [25 August 2016]
[3] The appellant’s affidavit says that when he became involved in the fight he was “getting pushed around by some people” and he “got scared”. When he got the impression that the victim was coming towards him aggressively, he hit him on the head with a beer bottle. He says the bottle shattered, although he did not grasp the full extent of the victim’s injuries until he saw the photos of the victim.
[4] He then says he left the party in shock, upset by what he had done. He subsequently heard that the police were speaking to a friend of his who was involved in the fight and that his friend was going to be charged with the offence. Mr Lynskey-Reid decided to tell the police what had happened and he subsequently made an appointment with the police and gave a full interview confessing to his involvement.
Legal principles applying on appeal of a refusal to grant a discharge without conviction
[5] The procedure for discharges without conviction is governed by ss 106 and
107 of the Sentencing Act 2002 (the Act). The relevant parts of s 106 of the Act provide:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction.
…
[6] While s 106 of the Act states that the Court “may” grant a discharge without conviction, the Court of Appeal in R v Hughes,2 outlined that the approach on appeal is to be by way of a rehearing rather than an appeal against a discretionary decision of the lower Court. This is because:
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles… The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.
[7] Section 107 of the Act sets out the threshold test that must be met before the discretion of s 106 can be exercised. It provides that:
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.
[8] Section 106 therefore involves a three step process which was explained in R
v Hughes as follows:
The Court must consider first, the gravity of the offending; secondly, the consequences of conviction; and finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.
[9] The Court of Appeal in Z v R.3 confirmed the importance of taking into account the personal circumstances of the offender in the enquiry, explaining that:
… when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
2 R v Hughes [2009] 3 NZLR 222.
3 Z v R [2012] NZCA 599.
District Court Decision
[10] The District Court Judge, after reciting the facts of the case, undertook the orthodox three step approach outlined in Z v R. He traversed in detail the gravity of the offending, and the harm it caused the victim. While he accepted it was not a premeditated act, he described the actions as “unjustified”, and likely fuelled by alcohol.
[11] On the other hand, he noted that the appellant was only 17, it was his first offence and to his credit he made a voluntary confession to police about what happened. He had also subsequently made real efforts to seek help and to ensure that such an incident would not happen again.
[12] In summary though, he considered that the offending was undoubtedly serious and it was fortunate that the long term consequences were not severe.
[13] The Judge then turned to consider the consequences of conviction. He recognised that a conviction would impinge significantly upon the appellant’s fledgling rugby career. He also recognised that a conviction in and of itself would be a stain on the appellant’s record and that that was something “that is keenly felt by young people who are only beginning to make their way in the world and who may be impacted by a conviction in years to come as they transition through to
adulthood”.4 He noted that while the appellant played for the Christchurch Boys’
High School 2nd XV, he had been accepted into the Old Boys’ Colts Development Programme and that, as part of the Colt programme, there was a trip to Argentina planned in 2018. He accepted that a conviction would hamper the prospects of advancing a rugby career, at least to some degree, although he considered those matters to be “somewhat speculative at present”.
[14] Taking all those matters into account, he was not satisfied that the consequences were out of all proportion to the gravity of the offence. Indeed he concluded that “the asserted consequences fall well short of that threshold” and he
dismissed the s 106 application.
4 Police v Lynskey-Reid, above n 1, at [30].
Submissions for the appellant
[15] Mr Lucas, for the appellant, provided comprehensive submissions in support of his view that, on reconsidering the matter, I should come to a different conclusion as to whether the threshold in s 107 had been met.
[16] Specifically, Mr Lucas argued that in assessing the gravity of the offending, the Judge did not place sufficient weight on:
(a) The age of the appellant;
(b) His guilty plea and the acceptance of responsibility; (c) His remorse;
(d) His lack of previous convictions; and
(e) The steps he had taken post offending.
[17] Furthermore, in considering the consequences of conviction, Mr Lucas argued that the Judge was too dismissive of Mr Lynskey-Reid’s prospects as a professional rugby player, nor did he sufficiently take into account the adverse consequences of a conviction such as this on someone as young as the appellant and with an otherwise unblemished record. I therefore turn to consider these issues afresh in light of the evidence before me.
Gravity of the offending
[18] I accept, and counsel for the appellant acknowledged, that the offence itself was serious. While the appellant says that he got the impression his victim “was coming towards me aggressively” and was “worried [the victim] might hit me”, self defence can clearly be discounted and it seems the defendant was the only person in the disturbance who chose to use a weapon of some sort. While Mr Lucas was critical of the Judge assessing the gravity of the offence by having regard to the
factors in Taueki,5 saying that the assessment of the gravity of the offence under s 106 involves a more nuanced and holistic approach to assessing the seriousness of the offence, I am satisfied that the Judge did not simply consider the Taueki factors as determinative of the gravity of the offending. He clearly took into account all other issues raised by the defendant.
[19] Mr Lucas says that more credit should be given to the actions of the appellant after the offending occurred in assessing the gravity of the offending. As Simon France J said in Lee v Police, “the proportionality of the consequence needs, in my view, to be measured against the complete scenario.”6 Lee involved a case of an 18 year old who was involved in a burglary but who voluntarily reported his actions to the police, even though no complaint had been laid and also returned the goods. Mr Lucas urged weight to be placed on the appellant’s acceptance of responsibility in this case.
[20] While Mr Lucas criticised the District Court Judge for stating that the wound narrowly avoided missing puncturing the victim’s lung, saying this was not stated in the summary of facts or the statement from the victim, the victim impact statement does say the emergency department checked that the wound had not punctured his left lung from behind. There can be no doubt from viewing the photographs of the wound, that it was a significant and serious injury and the District Court Judge was justified in noting that it was fortunate that the long term consequences for the victim have not been more severe.
[21] Thus, notwithstanding everything that Mr Lucas had to say about the appellant’s own actions and circumstances, I am satisfied that all those issues were considered by the Judge and I do not differ from his conclusion that this was a serious incident. Despite the very positive impression I have gained of Mr Lynskey-Reid’s character, and the positive view I have of him owning up to this
incident, I still consider the offending to be moderately serious.
5 R v Taueki [2005] 3 NZLR 372.
6 Lee v Police HC Auckland CRI-2005-404-38, 22 July 2005 at [23].
Consequences of conviction
[22] Mr Lucas focused on two issues when arguing that the consequences of conviction would be significant for Mr Lynskey-Reid. First, he emphasised that the Judge placed too little weight on Mr Lynskey-Reid’s youth. Mr Lucas argued that the case was analogous to that in R v M, where the High Court gave a discharge without conviction for assault with intent to injure, where the young person’s victim died as the result of the assault because he had an undiagnosed heart condition which
made him vulnerable in such situations. In that case Winkelmann J stated:7
What are the consequences of a conviction for you? Again, I do not accept the Crown’s submission that there is no particular consequence identified for you that will inevitably result from the entering of a conviction. I consider that there is a real and appreciable risk that your transition into adulthood given your current prospects and educational ambitions, will be significantly prejudiced should a conviction for violence be entered against you. The fact that a criminal conviction can significantly damage a young person’s employment and educational opportunities and have an exaggerated impact upon their development. Such convictions can have a disproportionate impact on the ability of a young person to gain meaningful employment and to play a worthwhile role in society.
[23] However, that is only one factor to take into account and it was clearly considered by the Judge. He observed that a conviction “is something that is keenly felt by young people who are only beginning to make their way in the world” and “that is not something which I underestimate”. I do consider that the appellant’s youth exacerbates the adverse consequences of a conviction for him, but that is only one issue to consider in the s 107 analysis.
[24] The second factor Mr Lucas raised as an adverse consequence of conviction was the potential impact on Mr Lynskey-Reid’s rugby playing career. The appellant was an emerging talent in rugby. He had been accepted into the Old Boys’ Colts Development Programme with the aim of progressing further into professional rugby. Mr Lucas submitted that the references supplied attest to Mr Lynskey-Reid’s capacity to make a living out of rugby and that a conviction would hold him back. This is both because he would be significantly hindered in travelling with any club and there would also be social stigma attached to him, which might mean that other
clubs or professional rugby organisations would be disinclined to take him on.
7 R v M [2014] NZHC 1848 at [38].
[25] In support of this submission, a character reference was supplied from the Christchurch High School Old Boys’ Rugby Football Club, rugby director, Mr Livingstone, who describes Mr Lynskey-Reid, as a dedicated rugby player with ability in the field who, with support, could “make it as a rugby player in the professional era”. Similarly, Mr Laidlaw, the manager of the Christchurch Boys’
High School 2nd XV, explained that Mr Lynskey-Reid demonstrated “an uncanny
ability to do the right thing at the right time on the rugby field” and “his talents could take him right to the top”.
[26] Mr Lucas also argued that the appellant’s development may be affected by travel restrictions. The Colts programme involves a trip to Argentina in 2018 and there is a real possibility that a conviction will affect his ability to travel to Argentina. He also pointed out the relevant immigration policies and rules which would make travel to Canada, the United States and the United Kingdom difficult, if not impossible, for the appellant, at least for specified periods of time.
[27] I accept that Mr Lynskey-Reid has aspirations to be a professional rugby player and his selection for the Old Boys’ Colts Development Programme is a step in that direction. He has the support of his coaches and mentors and I am satisfied they would support him, despite a conviction.
[28] In terms of travel impediments, it is not obvious to me that the restrictions on entering Canada or the United States are likely to be matters that would impinge on his rugby career. The only immediate prospect for travel is travel to Argentina in
2018. There is no evidence as to the impact his conviction will have on his ability to travel to that country. I accept that professional rugby could require the appellant to travel to the United Kingdom where the relevant Home Office immigration rules require officials to “consider refusing entry if the visitor has been convicted of any offence in the last 12 months or if the offence involves serious harm”. While “serious harm” is not defined in the rules, there is a real prospect that the current offending is such an offence. While, there is no immediate prospect of Mr Lynskey-Reid travelling to the United Kingdom for his rugby career, I accept that the evidence is sufficient to demonstrate he will face hurdles to entry to that country.
[29] However, as the evidence adduced shows, most countries modify their stance after specified periods of time and any short term impediments to travel will not necessarily carry through in the long term if Mr Lynskey-Reid does not offend again.
[30] Thus, in terms of the consequences, I accept that for an upstanding young man such as Mr Lynskey-Reid, the taint of a conviction will be a significant adverse consequence on itself and it has the potential to make travel to other countries for the purpose of playing rugby difficult, if not impossible, in the short term. That said, I do not consider these are consequences which are out of all proportion to the gravity of the offending. The offending was moderately serious, and the consequences will be proportionately moderately serious for Mr Lynskey-Reid. While I do not see the outcome of the balancing exercise in s 107 in such stark terms as Judge Gilbert, but rather as more finely balanced, I am not persuaded that the adverse consequences of conviction will be out of all proportion to the gravity of the offending. For that reason, I do not need to go on to consider the exercise of the residual discretion.
[31] In conclusion, despite the comprehensive and helpful submissions made by Mr Lucas on Mr Lynskey-Reid’s behalf, I consider all these factors were taken account of in the District Court decision and I come to the same conclusion.
[32] Accordingly, the appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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