M v Police HC Dunedin CRI-2006-412-57

[2007] NZHC 70

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2006-412-57

BETWEEN    M  

Appellant

ANDTHE POLICE Respondent

Hearing:         21 February 2007

Appearances: S. McMillan for Appellant

C. Power for Respondent

Judgment:      21 February 2007

JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1]      On 25 August last year    M   was charged under s 672 of the Crimes Act of intentionally and without claim of right damaging by fire a steel and foam chair in which he had no interest in breach of s 267(2) of the Crimes Act. On 9 October last year that charge was amended to the lesser charge under s 267 of intentionally damaging by fire a steel and foam chair in which he had no interest with reckless disregard for the safety of others and property.  This, as I understand it, occurred in the context of a status hearing and he ultimately pleaded guilty.

[2]      It appears that Mr M   took from the advice he was given, to put it at its lowest, that he had a very good chance of being discharged without conviction, pursuant to s 106 of the Sentencing Act 2002.

[3]      In the event, the Judge considered that there was danger to others and that the test applicable under s 107 was not made out.  He did, however, say that the matters

raised pursuant to s 107 were not concrete enough to satisfy the test.

M V THE POLICE HC DUN CRI-2006-412-57 21 February 2007

[4]      It is apparent from the cross examination of Mr Tobeck today that other than having a brief discussion about consequences with Mr M   no further efforts were made to see if there factors that would fulfil  the s 107 criteria.

[5]      Having pleaded guilty there were two options open to Mr M  , one was to apply for a rehearing in the District Court;  the other by way of appeal.  In light of the decision of Doogue J in  The Queen v Gore (HC Rotorua S24/91 15 May 1991) the appropriate course was to appeal both conviction and sentence.

[6]      It is, of course, apparent from a number of authorities, including Udy & Another v Police [1964] NZLR 235, that it is only in exceptional circumstances that a person will be allowed to vacate a plea of guilty, having entered a guilty plea. Certainly, there is nothing exceptional in this case, because even based on his own affidavit, the relevant elements and requirements of the offence under s 267(3) are made out. No defence, in fact, has been articulated. I would say in passing however that the offending is well towards the bottom end of offences against the subsection. So in those circumstances the grounds required to satisfy a Court that a plea should be vacated are simply not made out.

[7]      The circumstances relating to the sentencing are somewhat different.   It is apparent, as I have already said, that there was an inadequate investigation of matters that should have been considered under s 107.

[8]      In the course of submissions Ms McMillan submitted that this Court had 2 options, one to remit the matter to the District Court for re-sentencing.  The second was to substitute the Court’s own sentence by a discharge without conviction. Whether or not that is the appropriate sentence I simply do not know.  There are a number of matters put before me by way of affidavit that are simply hearsay.  There are a number of matters put before me by way of submission.   They relate to increased insurance levies and premiums, difficulty in getting insurance, and impediments to international travel.  Whether or not they are so I simply cannot say on the status of the information before me today.  They are, of course, all relevant matters to be considered in imposing sentence.

[9]      It is also necessary to say that underlying this appeal is, at least a belief on the part of the appellant and counsel advising him, that a number of students facing similar circumstances are either not charged, or are discharged without conviction. That is to place this sort of activity in the range of some sort of acceptable hi jinks. It is not, and nor are a number of the things that come before the Court in Dunedin. There are not two classes of offending for students and others.  All citizens should be treated quite equally.  Whether or not the test of s 107 is made out is a matter to be carefully considered on all of the evidence, and submissions that there are impediments to travel and other such matters should not simply be taken at face value.  There should be some evidence to substantiate them.

[10]     In the context of this particular case I say no more, because it is apparent that in any re-sentencing Mr M   is likely to challenge the summary of facts, and there may have to be a disputed facts hearing as to that.

[11]     But the appeal is allowed to the extent that the sentence imposed is quashed, and the matter is remitted to the District Court for re-sentencing on a date to be set by the Registrar.

Solicitors

Wilkinson Adams, Dunedin for Appellant

Crown Law, Dunedin for Respondent