M v Police HC Rotorua Cri-2010-463-1

[2010] NZHC 537

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-000001

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 April 2010

Appearances: Appellant in person assisted by his father RJT M  .

A J Gordon for the Respondent

Judgment:      30 April 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

A Gordon, Crown Solicitor, P O Box 740, Rotorua 3040.  Fax: [phone].

Copy to:

RJT M  , 10 Kauri Drive, Wairakei Village, Taupo 3332

M V NEW ZEALAND POLICE HC ROT CRI-2010-463-000001  30 April 2010

[1]      On 11 August 2009 in the Taupo District Court Judge Weir convicted the appellant on the one count he faced.   That was the charge of assaulting Morgan Fischback with intent to rob her, laid pursuant to s 236(2) of the Crimes Act 1961.

[2]      The  offending  took  place  in  Wairakei  in  May  2009  at  which  stage  the appellant was only 17 years old.

[3]      Subsequently the appellant was sentenced by another judge, Judge Cooper, to

180 hours community work and six months supervision with various relevant special conditions.

[4]      The appellant was represented by Mr Mounsey at trial.  On this appeal he is unrepresented but I have been considerably assisted by some focused and relevant comments made by his father.

[5]      The Judge at the trial was faced with a classic conflict of evidence.   The evidence of Ms Fischback (which for some reason was given from behind a screen), was that she went to a house in the Wairakei area to visit a friend; that there were a number of bystanders including the appellant, whom she knew from her school days, who were standing by; and that the appellant, in an aggressive fashion, reached into her car and tried to grab her wallet from the console, threatened her, and grabbed her hoody.  He was swiftly pulled out of the car.  There was no physical injury and no taking of property.

[6]      The appellant, who gave evidence at his trial, gave a contrary version.  That was that in very strong language, he was ordering the victim to leave the property, regarding her as being a trespasser.  The Judge, as is clear from his judgment, did not believe the appellant and his witnesses.   To some extent the Judge considered the appellant’s witnesses had orchestrated their testimony.  The appellant was convicted.

[7]      On sentencing the Court had the benefit of a very helpful letter from Ms Fischback.  She described the incident as being scary.  She said that she would have preferred charges not to have been pressed and would have liked restorative justice. She expressed the hope that the appellant would do something with his life and that

perhaps counselling would assist.  She described him from her personal knowledge as being a “soft and caring boy behind his staunch attitude”.  She perceptively said he was probably the youngest of his group of friends; had made bad choices in friends who were leading him astray.  She pointed out that sending him to jail would be a dreadful option for him.  She would like to see him employed.  She would really have appreciated the opportunity to talk to him and to have received an apology from him.

[8]      I have gone to some length to set out the victim’s approach because I regard it as significant.   However, the appellant, and particularly his father, have a real sense of grievance.  He was arrested on the night of the offence, unsurprisingly so given that he had been identified.  When he appeared in the Taupo District Court on

28 May 2009, for some reason, despite his age, he was remanded in custody.  The presiding Judge (Judge Weir), wrote at some length on the information sheet to the effect that a Taupo address would have to be provided but this was not an indication that  an  application  for  bail  would  be  successful.     Why,  given  the  statutory imperatives relating to offenders aged 17, there was a remand in custody is unclear to me.  He was at that stage represented by a duty solicitor.

[9]      It is also unclear to me, given the victim’s approach, why some restorative justice mechanism was not adopted.  At that stage the only conviction incurred by the appellant was in the Taupo Youth Court some six months earlier.  The conviction looks frightening, being described in the criminal history as “careless use firearm causing death/bodily injury”.   It seems clear from a pre-sentence report that this involved  the  accidental  discharge  of an  air  rifle  in  the  home  which  grazed  the appellant’s brother’s cheek.  For that the appellant was admonished.

[10]     The remand in custody was followed by restrictive bail.   Mr M   senior has explained to me the process of the trial.  It is clear that counsel appointed on legal aid was a disappointment to him.   However, a defence was run as the appellant had instructed.

[11]     Nonetheless, having read the transcript, and being alert to the fact that the

Judge was faced with a clear conflict of evidence, there can be no fault attaching to

him, as part of his judicial function, in preferring the evidence of the complainant to the evidence of the appellant and his witnesses.   Indeed Mr M   senior has made it clear to me that he does not really attack the way the Judge conducted the trial, although he obviously would have preferred a different result and believed his son’s version.  Mr M   can see that somebody had to make a choice one way or the other.  That person can only be a judge.

[12]     Mr M   senior has pointed out to me that describing this offending as being at the lower end of the scale is not much help to his son in an endeavour to find some employment.

[13]     I think Ms Fischback in her comments about the appellant has been very perceptive.  The appellant is a young man.  His life has not been blame free.  I am sure, however, his father and whanau will endeavour to do the best for him.  It is a shame that somebody in this situation has to carry the stigma of convictions but there is little that can be done about that.

[14]     However, in this judgment I record the view that it was unfortunate there needed to be a full scale defended criminal trial; and that the culpability of the appellant as proved at that trial was very much at the low end of the scale.  There were   incautious   words   used.     No   property  was   stolen   or   injury  inflicted. Undoubtedly liquor would have played its part.

[15]     It would be my hope that some responsible well disposed employer would be prepared to give this young man a chance after appropriate inquiries and would not rule him out totally on the basis he has incurred this conviction.

[16]     Looking at the grounds for appeal which were stipulated as being; there was no proof beyond reasonable doubt; no proof of an intention; and the hearing was conducted in an unfair manner, I must reject those grounds of the appeal as the appellant and his father appreciate.

[17]     The appeal is thus dismissed.

[18]     There is no order for costs.

.......................................… Priestley J