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…
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- Case
- [2017] NZHC 835
- Decision Date
CaseChat Overview and Summary
The Court found that the District Court did not place undue emphasis on the letter sent by Mr Martin to the complainant’s employer, as it was directly relevant to the offending. The Court also found that it was appropriate for the District Court to consider the two breaches together, as they were part of a continuing course of conduct. Finally, the Court found that Mr Martin had not provided clear evidence of the consequences of a conviction, and his assertions were speculative. The Court concluded that the threshold for a discharge without conviction under section 107 of the Sentencing Act 2002 was not met, and the appeal was dismissed.
The Court did not make any orders, as the appeal was dismissed. The Court noted that the consequences of a conviction, as suggested by Mr Martin, were speculative and did not outweigh the gravity of the offending. The Court also noted that there was no statutory bar to a second discharge without conviction, but that a previous discharge without conviction for the same type of offending must count against a discharge being granted on a later occasion.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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