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M v Police

M v Police

Case [2023] NZHC 995 1 May 2023

Appeal

Jurisdiction

Discharge without conviction

Unconscionable Conduct

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NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-321

[2023] NZHC 995

BETWEEN
M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 October 2021 and 7 March 2023

Appearances:

4 October 2021 hearing Appellant in person D McGivern

7 March 2023 hearing Appellant in person Y Fu for the Respondent

S Wimsett, counsel assisting

Judgment:

1 May 2023

JUDGMENT OF DUFFY J

This judgment was delivered by me on 1 May 2023 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
S Wimsett, Barrister, Auckland Meredith Connell, Auckland

And to:
The Appellant

M v NEW ZEALAND POLICE [2023] NZHC 995 [1 May 2023]

[1] The appellant M was convicted and sentenced for a series of offences that occurred between 2013 and 2018. He has attention deficit hyperactivity disorder (ADHD) that at the time was untreated. After his ADHD was diagnosed and successfully treated M went on to complete tertiary studies at Massey University where he gained a Bachelor of Business degree with a double major in accountancy and finance. However, since completing this degree he has found his convictions are a barrier to gaining employment in his chosen field. Accordingly, he seeks leave to appeal out of time against the entry of the convictions by seeking discharges without conviction. The application for leave to appeal out of time and the substantive appeal are opposed.

Facts

The convictions

[2] There is a total of 11 convictions. They are listed in chronological order starting with the earliest.

[3] On 10 June 2013 M shoplifted from Smith and Caughey’s Department store on Queen Street items over $1000 in value.1 These were two men’s jackets with a combined value of $1450, which he secreted on his person and was detected by the store’s security as he left the store. He was convicted and sentenced on 12 November 2013 to a fine of $250, with $130 costs and an order for destruction of the shoplifted items.

[4] There were two offences on 29 September 2013: namely, possession of cannabis plant;2 and wilful damage/graffiti.3 The police summary of facts records that M was seen by a member of the public around 12:54 am spray painting graffiti on a building wall on the corner of Fanshaw Street and Halsey Street. This witness reported the incident to police, who shortly thereafter located and stopped M. When searched following his arrest he was found to possess 5 grams of cannabis plant. On 23 October

1      Crimes Act 1961, ss 219 and 223(b); maximum penalty seven years’ imprisonment.
2      Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months’ imprisonment, fine
$500.
3      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment, fine
$2000.

2013 M was convicted and sentenced. For each offence he received a fine…

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 M v Police

Details

AGLC: M v Police [2023] NZHC 995
Case: [2023] NZHC 995
Decision Date: 1 May 2023

CaseChat Overview and Summary

The appellant, M, was convicted and sentenced for a series of offences occurring between 2013 and 2018. Since his attention deficit hyperactivity disorder (ADHD) was diagnosed and treated, M has completed a Bachelor of Business degree with a double major in accountancy and finance at Massey University. However, his convictions are a barrier to gaining employment in his chosen field. M sought leave to appeal out of time against the entry of the convictions by seeking discharges without conviction. The application for leave to appeal out of time and the substantive appeal are opposed. The court had to determine whether the consequences of the convictions were out of all proportion to the gravity of the offending. The court found that M’s untreated ADHD was a significant contributing factor to his offending, and the consequences of the convictions were out of all proportion to the gravity of the offending. The court granted leave to appeal out of time and allowed the appeal against the entry of the convictions identified at [3]–[8]; [10]–[11]. The convictions on those offences were set aside, and M was discharged without conviction on the above offences. The publication of the name, address or identifying particulars of the appellant was prohibited by s 201 of the Criminal Procedure Act 2011.

Orders