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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 835
Decision Date: 1 May 2017

CaseChat Overview and Summary

Alec Martin has appealed against a decision of the District Court declining his application for a discharge without conviction for two breaches of a protection order. The appeal was heard and dismissed by Fitzgerald J of the High Court at Rotorua. The key issues were whether the District Court had placed undue emphasis on one aspect of the offending, whether the two breaches of the protection order should have been considered separately, and whether the consequences of a conviction were given insufficient weight.

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