M v Police HC Wellington CRI 2009-485-138

[2009] NZHC 2240

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-138

M

v

NEW ZEALAND POLICE

Hearing:         15 December 2009

Counsel:         J D Dallas for Appellant

K Grau for Respondent

Judgment:      15 December 2009

JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)

[1]      This is an appeal from a refusal of a District Court Judge to give the appellant a discharge without conviction (s 106 Sentencing Act 2002) on a charge of assault (s 196 Crimes Act 1961).

[2]      The  appellant’s  case  is  that  on  10 August 2009  when  he  was  refused  a discharge without conviction the Judge did not know he had attended the Living Without Violence Group.   This “error” the appellant submitted meant this Court should allow the appeal and send the s 106 application back to the District Court for rehearing.    Counsel  for  the  appellant  accepted  he  had  no  instructions  which identified any grounds to support a s 106 discharge beyond those raised in the

District Court.

M V NEW ZEALAND POLICE HC WN CRI 2009-485-138  15 December 2009

[3]      This sorry tale has been before the Courts for almost twelve months now. Before I deal with the delays and other problems in this case I consider the appeal against the refusal to grant a discharge without conviction.   Given the appellant cannot identify any further information relevant to a s 106 application nothing would be gained by remitting the case to the District Court.   Erring on the side of the appellant I consider the s 106 application anew based on the material now before the Court except for the appellant’s recently tendered affidavit.   I will deal with that document later in this judgment.  I will identify in the course of this judgment why I take this approach.

[4]      In  an  application  for  a  discharge  without  conviction,  the  Judge  must  be satisfied that the direct and indirect consequences of a conviction will be out of all proportion  to  the  gravity  of  the  offending  (s 107  Sentencing  Act 2002).    Being satisfied identifies no onus or standard of proof.   However, clearly there must be evidence before the Judge on which he or she could be so satisfied.

Facts

[5]      To turn therefore to the facts of the case.  The summary of facts records that on the day of the assault there had been an argument between the appellant and his girlfriend, the victim.  The victim was in the bedroom on her own when the appellant entered.  The appellant began yelling at the victim.  While she was sitting on the bed the appellant approached her and shoved her, on her shoulders, with both hands pushing her onto the bed.   The victim got up and left the room.   The appellant followed, yelling and talking aggressively.  He then grabbed the victim by the arm and tried to pull her out of her chair.  The victim’s father then intervened and the appellant then left the house.

Court Process

[6]      Initially the appellant was charged with, and pleaded guilty to, being a male he assaulted a female (s 192 Crimes Act 1961) and threatening behaviour (under the Summary Offences Act 1981).  Later, his counsel sought to vacate his guilty pleas

on the basis that the evidence only supported a charge of assault simpliciter.  The Police  did  not  oppose  this  application.     The  Police  therefore  withdrew  the threatening  behaviour  charge,  amended  the  male  assaults  female  to  Crimes Act assault and the appellant then pleaded guilty.

[7]      When  the  appellant  indicated  that  he  would  seek  a  discharge  without conviction the Court adjourned the sentencing for some months until August 2009 so that the appellant could complete an anger management course.  By August 2009 the appellant had a new solicitor.   That solicitor indicated to the Court the appellant would seek leave to withdraw his plea of guilty to the Crimes Act assault.

[8]      However, the appellant’s previous counsel, his new solicitor, together with the accused, all agreed that his previous counsel would appear in Court on the next call of the case, 10 August, and complete the s 106 application.  They reasoned that if the s 106 application was successful then no application for leave to withdraw the guilty plea would be necessary.   The s 106 application was unsuccessful, thus the appellant’s new counsel indicated he wished to apply for leave to withdraw the guilty plea.

[9]      A  timetable  order  for  this  process  was  then  set.    It  required  a  written application and supporting affidavits.  No application nor supporting affidavits were in  fact  filed  within  the timetable  period.    On  the  adjourned  sentencing date  of

31 August, counsel for the appellant made an oral application for a discharge without conviction and failing that an oral application for a re-hearing of the refusal to grant the s 106 application, refused earlier when the appellant’s original counsel had been involved.

[10]     The Judge refused to entertain these applications pointing out that timetable orders for written applications had been made and ignored.  The Judge had already refused  a  discharge  and  it  was  difficult  to  identify  any  basis  for  a  rehearing. However,  the  Judge  said  in  any  event,  she  would  not  have  granted  any  s 106 application and she identified in detail why.   She considered that, if anything, the appellant’s position had deteriorated since the last application had been made and refused.

Application for discharge

[11]     The appellant’s complaint is that his application for a discharge was not heard before a Judge, armed with all the relevant material.  While I do not accept that claim accurately describes what happened, in the circumstances, the fairest course is to consider the application anew.

[12]     To return, therefore, to the application for a discharge without conviction. The  appellant  works  as  a  systems  administrator  and  developer  for  Victoria University.  In his original application for a discharge it was suggested a conviction could jeopardise his employment.  There was no evidence to support this contention and I note now, many months after this conviction, he remains employed.

[13]     Turning to the facts I accept that the assault was at the lower end of the spectrum.  In one sense the appellant has already had recognition of that fact by the reduction in charge from male assault female (maximum penalty two years’ imprisonment) to Crimes Act assault (maximum penalty one year imprisonment) after his original plea of guilty.  However, as the summary of facts identifies, this was two separate assaults accompanied by persistent aggressive conduct which only ended with the intervention of the victim’s father rather than by any withdrawal by the appellant.

[14]     Also of significance is the fact that in 2005 the appellant was discharged without conviction on another assault involving a woman.  While a second discharge for similar offending cannot be completely ruled out it will inevitably be a rare event.

[15]     The District Court Judge referred the appellant to counselling after his guilty plea.   The appellant undertook the counselling and also obtained a report from a psychologist whom he had also consulted.  Neither report writer could confidently say that the appellant had understood why he had assaulted his partner or that he accepted his fault in the incident, or that he had the insight to avoid similar problems in the future.

[16]     The  District  Court  Judge,  understandably,  observed  that  this  was  a  case where, rather than alleviate the Court’s concern about future conduct, the appellant’s attendance at a Living Without Violence Group and his contact with a psychologist had increased concern.

[17]     Finally, without leave, and many days late despite having been advised that an application was required (minute of Simon France J of 3 November 2009) the applicant filed an affidavit said to be in support of this appeal.  The affidavit, rather than identifying relevant factors relating to a discharge without conviction, was an unwise, hearsay riddled criticism of the appellant’s previous lawyers and the Judge in the District Court.  Counsel should not have filed it.

[18]     I am not satisfied the direct and indirect consequences of a conviction would be out of all proportion to the offending here.  Indeed in the circumstances the only consequence the appellant can point to is that faced by all who are convicted of a crime.  Given the facts of the case and the appellant’s past there is nothing out of all proportion in a conviction in these circumstances.

[19]     In summary, therefore, the appellant has not identified any consequences beyond the “ordinary” consequences of a conviction.  While such consequences can be significant there is nothing out of the ordinary identified here.  The appellant has previously committed a similar offence.  He cannot be said to be either remorseful or accepting of his part in the assault, given his efforts to deny the basic facts of the event and his threatened attempts to vacate his guilty plea.  All indicate a clear lack of remorse.  The evidence also shows that the appellant is unable to or disinterested in understanding his conduct and the reasons for it.  A conviction for the assault is the appropriate response.  The fine was, in my view, very modest.

[20]     I wish to express a view as to counsel’s conduct of these matters.   Self evidently, subject to the Legal Services Agency statutory control it is a matter for a defendant to decide who he wishes to have represent him.  However, given counsel today is his third lawyer, continuity of approach and understanding of the case has been compromised by the changes in this case.

[21]     This file discloses an apparent casual indifference by several counsel for the appellant in complying with Court ordered dates for filing documents.  For example, as I have observed, on the Sunday before sentencing (31 August) counsel sent by facsimile an unsworn affidavit and memorandum to the District Court having been told to file the documents by 14 August.

[22]     As  the  Judge  in  the  District  Court  observed,  apart  from  its  obvious deficiencies the document was filed at a time when no proper notice could possibly be given to the prosecution or the Judge, inevitably disrupting Court business.

[23]     On 3 November previous counsel received a minute from Simon France J

which made it clear:

a)        there had been no compliance by counsel with the 19 December 2003

Practice Note;

b)if “fresh” evidence was to be filed, it was to be filed by 24 November together with an appropriate application otherwise the appeal would proceed  on  the  existing  material.     No  affidavit  was  filed  by

24 November.    It  was  not  filed  until  2 December,  eight  days  late without any explanation for lateness nor any application for leave to file the affidavit as directed.   The affidavit did not deal with any relevant factual material relating to a discharge without conviction. As it turns out previous counsel neglected to advise current counsel of the Judge’s memorandum.

[24]     This appeal, therefore, has proceeded on the basis of the existing material from the District Court.  I note, however, as I have said, the affidavit of the appellant in any event does not assist his appeal.

[25]     The conduct of several counsel who have acted for the appellant in this case is not of an acceptable standard.  My concerns include:

a)        failure to ensure new counsel are properly instructed;

b)failure between “new” and “old” counsel to identify when and in what circumstances the change between counsel should be affected;

c)        failure to adhere to judicial imposed timetables in the District and

High Court;

d)failure of “old” counsel to adequately instruct “new” with respect to this appeal;

e)       oral applications in the District Court when written applications with affidavit evidence are required;

f)        in  this  appeal  there  was  a  failure  to  identify relevant  grounds  of appeal.   Neither the appellant’s affidavit nor counsel’s submissions contain any reference to the relevant evidence and the law relating to s 106 applications.

[26]     For reasons given the appeal will be dismissed.

Solicitors:

J D Dallas, Solicitor, Wellington, email: [email protected]

Ronald Young J

K Grau, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]