Martin v Police

[2017] NZHC 835

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-463-53 [2017] NZHC 835

BETWEEN

ALEC ROBERT MARTIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

26 April 2017

Counsel:

Appearance:

SP Casey for the Crown

AR Martin, appellant in person

Judgment:

1 May 2017

JUDGMENT OF FITZGERALD J [As to appeal against conviction]

This judgment was delivered by me on 1 May 2017 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitors, Rotorua

To:  AR Martin, Rotorua

Martin v New Zealand Police [2017] NZHC 835 [1 May 2017]

[1]      Alec Martin pleaded guilty to two charges of breaching a protection order.1

He now appeals against a decision of Judge C J McGuire in the District Court at

Rotorua declining his application for a discharge without conviction.2

Facts

[2]       In December 2016, the Rotorua District Court issued a temporary protection order against Mr Martin, the protected persons including the complainant.   That order was made final on 17 March 2016.

[3]      On 18 April 2016, the complainant’s employer received a letter appearing to be from the Rotorua Police.  The letter said the complainant was being investigated for burglary and assault, and that the complainant was harbouring stolen property at that workplace.   This caused significant embarrassment and distress to the complainant.  Mr Martin acknowledges that he sent this letter.

[4]      On 29 April 2016, the complainant moved some property into an address which is owned with Mr Martin.  The complainant then went to sleep the night at a relative’s house.  It is said that Mr Martin wrote a trespass notice to the complainant in respect of the co-owned property, and had his father place it on the complainant’s vehicle while it was parked at the relative’s house.

[5]      Mr Martin applied for a discharge without conviction in respect of the two breaches of the protection order.

District Court decision

[6]      Judge McGuire began by noting that the Police took a neutral position in respect of Mr Martin’s application for a discharge without conviction.

1      Domestic Violence Act 1995, ss 19(2)(c), 49(1)(b) and 49(3); maximum penalty, three years’

imprisonment.

2      Police v Martin [2016] NZDC 25248.

[7]      The Judge appeared to be of the view that there was some controversy as to the factual background. As an aside, I note that, at the hearing before me, Mr Martin made extensive submissions, and in effect  gave evidence, as to the interactions between  himself  and  the complainant.      It  was  clear to  me from  hearing from Mr Martin on these matters that there are likely to be many factual disputes between him and the complainant.   It seems to me that it is these broader matters that the Judge was referring to in his judgment when referencing allegations and counter- allegations.

[8]       After setting out the facts surrounding Mr Martin sending the letter to the complainant’s workplace (which, despite the factual controversies referred to earlier, the Judge noted as being “provably carried out”), the Judge observed that such offending involved “significant forethought”, and was not an action taken in haste and then immediately regretted.

[9]      Turning  to  the  test  under  s  107  of  the  Sentencing Act  2002,  the  Judge assessed the gravity of Mr Martin’s offending to be moderate.  When considering the consequences  of  a  conviction,  the  Judge  noted  that  Mr Martin  had  no  prior convictions and has full-time work at a local research institute.

[10]     Although Mr Martin’s counsel had submitted that convictions would “create a real difficulty” for Mr Martin, the Judge noted that it was not asserted that convictions would end his employment or have a dramatic effect on his ability to earn a living.

[11]   Judge McGuire was, therefore, not satisfied that the direct and indirect consequences  of  a  conviction  would  be  out  of  all  proportion  to  the  gravity  of Mr Martin’s offending.  He accordingly refused the s 106 application.  He convicted Mr Martin on each of the matters and ordered him to come up for sentence if called upon within 12 months.

Submissions on appeal

[12]     Mr Martin’s notice of appeal sets out the following grounds of appeal:

(a)	The Judge placed undue emphasis on the letter purporting to be from the Rotorua Police rather than considering the effects of the breach of
protection order on the complainant;
(b)	The Judge “lumped” two offences together when considering s 106 – he should have considered these offences separately; and
(c)	The consequences of a conviction were given insufficient weight and the seriousness of the offending was overstated in light of:
(i)       the Police neutrality to the application;
(ii)      there being no statutory bar to a second s 106 discharge; and
(iii)     the accepted (unchallenged) factual scenario submitted and not disputed by Police.
[13]	Mr	Casey  for  the  Crown  opposes  the  appeal.     He  emphasises   the

consequences that Mr Martin’s offending had on the complainant, and that the offending was premeditated and intended to cause distress.  He also notes that on 28

April  2016,  Mr  Martin  had  been  granted  a  discharge  without  conviction  for breaching a protection order against the same complainant, and submits that the proximity of this breach with the present offending exacerbates the seriousness of the offending.  Lastly, Mr Casey notes that the consequences of a conviction suggested by Mr Martin are merely speculative, and so are insufficient to form the basis for a discharge.

Legal principles

[14]     Before the Court can consider whether to exercise its discretion to discharge a person without conviction, it must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the

offence.3  This is assessed by way of a three-stage threshold analysis:4

(a)      First, the Court must assess the gravity of the offence in the offending, including all aggravating and mitigating factors.

(b)Second, the Court must identify the direct and indirect consequences of a conviction for the defendant, it being sufficient that the Court be satisfied that there is a “real or appreciable” risk that such consequences will occur.

(c)      Third, the Court must then consider whether the consequences of a conviction are out of all proportion to the gravity of the offence.

[15]     If the threshold in the third stage has been met, the Court may then consider whether  to  exercise  its  discretion  under  s 106  to  grant  a  discharge  without conviction.

[16]     An appeal against a finding that the threshold contained in s 107 has not been met is an evaluative exercise and therefore proceeds by way of a general appeal.5

However, even if an appellate Court disagrees with the first instance Judge and finds that the threshold in s 107 has been met, the appeal will not automatically succeed. The Court must still consider whether it should exercise its discretion and grant a discharge without conviction.

Discussion

[17]     Turning to Mr Martin’s first ground of appeal, at the hearing before me, Mr Martin responsibly accepted that sending the letter purporting to be from the Rotorua Police was a “stupid thing” to have done.  But he emphasised the context in which  the  letter  was  sent,  namely  in  circumstances  where  he  alleges  that  the

complainant had taken some jewellery and he being frustrated with the police officer

3      Sentencing Act 2002, s 107.

4      DC (CA47/2013) v R [2013] NZCA 255; R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at

[8].

5      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; Austin, Nichols & Co Inc v Stichting

Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

who was dealing with his complaint in that regard.  He said that he did not intend to impersonate a police officer and was simply “fishing” for information as to the whereabouts of the jewellery.

[18]     However, by writing a letter pretending to be a police officer, Mr Martin did indeed intend to impersonate a police officer. And he also sent the letter directly to the complainant’s employer, which he must have known would have caused distress and embarrassment on the complainant’s part.  I also note that the letter alleges that the complainant was being investigated for common assault, which is not explained by Mr Martin’s suggestion that it was solely intended to “fish” for information about the jewellery.

[19]     In these circumstances, I do not accept that the Judge placed undue emphasis on the letter from the Rotorua Police.  The letter was directly relevant to Mr Martin’s offending, and in my view the Judge was quite correct to highlight it.  I agree that it involved a significant degree of foresight and was not something done “in the heat of the moment”.

[20]     As to Mr Martin’s claim that the Judge wrongly “lumped” the two offences together, I do not consider that the Judge erred in this way.  The two breaches were part  of a continuing course of conduct  by Mr  Martin.    In  the circumstances,  I consider it was appropriate for the Judge to consider the breaches together.

[21]     Mr Martin’s third ground of appeal focuses on the s 107 threshold.  I do not consider that the Police’s neutrality to Mr Martin’s application indicates that the Judge wrongly concluded that the threshold was not met.   Sections 106 and 107 required Judge McGuire to come to his own view as to whether a discharge was appropriate, and he did just that.  The Police’s position on the application was in no way binding on the Judge.

Mr Martin correctly submits that there is no statutory bar to a second discharge without conviction.  Courts have of course on occasion been willing to grant two or more discharges without conviction to the same offender. However, it has also been recognised that a previous discharge without conviction for offending of the same

type must count against a discharge on a later occasion: Morgan v Police,6 Police v

McCabe7 and Swami v Police8.

[22]      It is apparent that Mr Martin’s previous (successful) discharge application played no role in Judge McGuire’s decision to refuse the subsequent application. Moreover,  even if that  earlier discharge without conviction had been taken into account, it is likely that it would have further counted against a discharge being granted.

[23]     In terms of the consequences of a conviction, as Mr Casey has submitted, Mr Martin has provided no clear evidence as to the consequences that a conviction would have on him, whether it be to his travel or work opportunities, or otherwise.

[24]     As appears to have been the case in the hearing before Judge McGuire, in the hearing before me, Mr Martin referred to various matters in this regard, but in an unspecified and speculative way.   Mr Martin noted that he had been an exchange student in the United States some years ago, and may wish to visit his host family there at some time.   He also noted that he works in a role that involves certain Microsoft technology, and may wish to travel in that regard in the future.  He also referred to relatives being very successful in New Zealand at cross-fit and again he may wish to travel in this regard at some point in the future.  Finally, he referred to the fact that one of his children has serious allergies and he may wish to travel in relation to that in the future, for example, to travel overseas to look for medical cures.

[25]     Mr Martin’s primary concern appeared to be in respect of the United States, rather than any other country.   He stated that under the “current regime” in the United States, a conviction for matters such as this may impede his travel.  However, no further specificity was provided.

[26]     Mr Martin’s assertions that a conviction would impede his ability to visit friends in the United States at some point in the future, or that it might impede his

6      Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009.

7      Police v McCabe [1985] 1 NZLR 361.

8      Swami v Police [2012] NZHC 2725.

ability to travel for work or the other matters referenced above, are speculative and cannot form the basis for a discharge without conviction.9    As noted in Brunton v Police, tentative future travel plans carry little weight in a s 107 context.

[27]     Therefore, it cannot be said that those (unsubstantiated) consequences would outweigh the gravity of Mr Martin’s offending.

Conclusion

[28]     The s 107 threshold for a discharge without conviction is accordingly not met.  I dismiss the appeal.

Fitzgerald J

9      See Brunton v Police [2012] NZHC 1197.