M v Police HC Christchurch CRI 2009-409-2

[2009] NZHC 358

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000002

M

Appellant

v

POLICE

Respondent

Hearing:         18, 23 and 25 March 2009

Counsel:         R A Peters for Appellant

D L Elsmore for Respondent

Judgment:      25 March 2009

JUDGMENT OF FOGARTY J

[1]      This is an appeal against two sentences imposed by Judge Erber of fines of

$250 and costs and $350 and costs and witness expenses of $25.    These offences were in respect of breaches of protection orders.

[2]      The appeal has been pursued both against conviction and sentence on the basis that the consequence of the conviction is disproportionate to the gravity of the

offence.  Section 107 of the Sentencing Act 2002 provides:

M  V POLICE  HC CHCH CRI 2009-409-000002  25 March 2009

107      Guidance for discharge without conviction

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.

[3]      This section was recently considered in the decision of the Court of Appeal in R v Hughes [2008] NZCA 546. That decision, among other things, makes it clear that although there is no onus of proof the Court has to be satisfied that the disproportionality test has been met. The second half of paragraph [52] of that decision reads:

[52]     … But, as noted earlier, it could be expected in the normal run of things that an offender seeking a s106 discharge would put before the court information, or draw the Judge’s attention to information in reports before the court which, if accepted, would provide a basis for the sentencing Judge to be satisfied that the s 107 test was met and that a decision in his or her favour under s 106 was appropriate.

[4]      This case has been adjourned on two occasions to give Mr McLeod an opportunity to put before the Court information that would provide a basis for being satisfied that the s 107 test was met.

[5]      I have received this morning the work history of the appellant and his recent efforts to obtain work.   He is in his 50s.   He is qualified with a New Zealand Certificate of Engineering.  He used to work for the Waimairi County Council for over ten years.    Prior to that he worked for an engineering firm as an engineering assistant.  He then went into business for four years and then it seems for another 20 years was a landlord and at various times a real estate sales person.  One year he had security work at Christchurch Hospital.

[6]      The principal argument before me is that he has been seeking more security work.  But the consequences of now having a criminal conviction mean that he has not been able to get such work.  It may well be that that is correct but what stands out in my mind is that over his work history, apart from one year, he has not been employed in security work.

[7]      There are many hundreds of thousands of New Zealanders with convictions who are employed and I am quite satisfied that Parliament did not intend s 107 to be

taken advantage of to the extent that any conviction makes it more difficult to be employed.     I can also appreciate that the appellant now at his age is finding it difficult to get employment, particularly in the current economic climate, and to that end these convictions have not made it any easier.  However, for the reasons which I have outlined and which are further developed in the Court of Appeal decision in Hughes his argument simply does not get over the threshold of s 107.

[8]      For these reasons this appeal is dismissed.

Solicitors:

Thompson & Morgan, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent