M v Police HC Palmerston North CRI 2005-454-70

[2006] NZHC 375

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2005-454-70

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 April 2006

Appearances: S Bourne for Appellant

K G Stone for Respondent

Judgment:      11 April 2006

JUDGMENT OF MILLER J

[1]      This is an appeal against a refusal to grant a discharge without conviction on two charges.  The first was one of wilful damage under s11(1)(a) of the Summary Offences Act 1981, and the second was a charge of common assault under s196 of the Crimes Act.   Mr M   was convicted and discharged on each charge following a guilty plea.

[2]      The  facts  are  that  Mr  M    received  a  text  message  from  his girlfriend saying that she wanted to break up.  He responded by driving to her house

at about 2.25am on 26 February 2005.  There he threw an empty beer bottle at the

M V N Z POLICE HC PN 11 April 2006

house,  breaking a bedroom window.   The owner of the house came outside  to investigate, and an argument ensued.  It culminated in him assaulting the owner.

[3]      Mr  M    surrendered  himself  to  the  police  and  was  fully  co- operative.  He pleaded guilty.  He paid reparation of $200, and made a $300 donation to charity.  At 19 years of age, he had no previous convictions.

[4]      Judge Garland recorded the donation and the reparation paid, and held that they  justified  a  conviction  and  discharge  but  declined  to  discharge  without conviction.  No further reasons were given.

[5]      Mr Williams submits that the sparse sentencing notes indicate the Court did not fully turn its mind to the consequences to a conviction, in terms of s107 of the Sentencing Act.  Having failed to do that, the Court was in no position to exercise its discretion to discharge or not.   Counsel highlights the restriction that a conviction imposes on employment and travel options in the future.

[6]      It is also said that the Judge failed to take all relevant mitigating factors into account.  The only factors mentioned were the donation and the restitution.  Counsel submits that the offending was spontaneous, having occurred just after he received the text  message.    He  was  immediately  co-operative  with  the  police  and  fully remorseful.  He attended a restorative justice panel where he was frank and accepted that his actions were childish and stupid. Greater deference ought to have been paid to the restorative justice process, under which Mr M   fully addressed the consequences of his offending.  The panel gave him credit for the fact that he had returned to the address to  apologise and surrendered himself to  the police.    He promptly paid restitution and the donation of $300 to a charity.   These were all relevant considerations that ought to have been taken into account when assessing the overall gravity of the offending: in support of that proposition, counsel referred to a judgment of mine in Delaney v Police HC WN CRI 2005-485-22 22 April 2005.

[7]      Section 106 of the Sentencing Act gives the Court a discretion to discharge without conviction,  and provides that  a discharge  is deemed to  be an acquittal. Notwithstanding  that,  the  Court  may  make  orders  for  payment  of  costs  or

compensation or restitution or make any order that the Court is required to make on conviction.  Section 107 provides:

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.

[8]      It is well settled that the discretion to discharge under s.106 must be used sparingly,  and  there  must  be  something  exceptional  about  the  offender  or  the offence.  In Fisheries Inspector v Turner [1978] 2 NZLR 233, the Court of Appeal stated that the Court must consider the nature of the offence, the seriousness of the particular offending, and how it will affect the particular offender in light of his personal circumstances.

[9]      A decision under s107 is discretionary in  nature, and this Court will not simply substitute its own decision on appeal:  Halligan v Police [1995] NZLR 1185. Section 121(3)(b) of the Summary Proceedings Act 1957 provides that this Court may quash a sentence passed by the District Court and impose another sentence if satisfied that the sentence was clearly excessive, or substantial facts relating to the offence or to the offender’s character or personal history were not before the District Court, or those facts were not substantially as placed before or found by that Court. As with any appeal against the exercise of a discretion however, this Court may interfere if satisfied that the District Court misdirected itself or failed to take a relevant consideration into account.

[10]     In Delaney, I held that  considerations such as attendance at  a restorative justice conference, community work undertaken, and willingness to make reparation are relevant considerations under s106 and s107.   The phrase “the gravity of the offence” in s107 includes not only the offence but  anything that  may affect  the Court’s subsequent  assessment  of overall culpability.    The  Police  accepted that position for purposes of this appeal.

[11]     The  Judge’s  reasons  identified  two  mitigating  factors,  but  he  made  no reference to other aspects of the restorative justice process, the guilty plea and full

co-operation, his apology at the time, and the spontaneous nature of the offending.  If he did consider these factors, some brief and general reference ought to have been made to them.  In the circumstances, I do not think it is safe to infer that he took the other mitigating considerations into account.  I will consider the application of s106 afresh.

[12]     The question is whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence.

[13]     Counting against Mr M   are two points.   The first is the fact that one of the charges was an assault on someone who offered no provocation, when he was affected by alcohol, and further it was an assault with a domestic background. As Mr Stone said, discharges without conviction for nuisance type behaviour of this sort are not the norm.  I accept that there are a number of cases in which discharges have been granted following an assault: Savage v Police (AP 99/99, Auckland High Court, 30 July 1999, Randerson J), Scrimgeour v Police (Wellington High Court, AP

87/91, 8 May 1991, Temm J), Rae v Police (Wellington High Court, AP 270/01, 13

February 2002, Durie J), Kenyan v Police (1994) 12 CRNZ 337, and Boonen v Police (Wellington High Court, 14 October 2003, Wild J).   The second is that the consequences of conviction are not out of the ordinary; he will have a record that may affect his future employment and travel options.

[14]     However, it is necessary to consider whether the successful restorative justice processes affect culpability so that a conviction is out of proportion to the gravity of the offending, viewed overall.  Section 8(j) of the Sentencing Act requires that the Court must take restorative justice processes into account, and remorse is of course a mitigating factor under s9(2).

[15]     The decision  is  finally balanced but  in the circumstances  of this  case,  I consider that a conviction was out of all proportion to the gravity of the offending. Apart from the spontaneous nature of the offence and there is his surrender to the police, his immediate apology, co-operation, guilty plea and the outcome of the successful restorative justice process.

[16]     The sentence is set aside and there will be a discharge without conviction substituted.

F Miller J

Solicitors:

Kirkeby & Co, Levin for the Appellant

K G Stone, Crown Solicitor’s Office, Wellington for Respondent