Mathieson v New Zealand Police - [2018] NZHC 3153

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-251 [2018] NZHC 3153

BETWEEN
WARREN DAVID MATHIESON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 November 2018

Counsel:

D Schellenberg for Appellant
H Reid for Respondent

Judgment:

3 December 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 December 2018 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

MATHIESON v POLICE [2018] NZHC 3153 [3 December 2018]

Introduction

[1] On 17 July 2018,1 Judge DJ Orchard refused to discharge Mr Mathieson without conviction on one charge of male assaults female2 and one charge of threatening to kill.3 Mr Mathieson now appeals that decision.

Approach on appeal

[2] I must allow the appeal if I am satisfied that, for any reason, Judge Orchard made an error such that Mr Mathieson should have been discharged without conviction.4

[3] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[4] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied that the consequences would be out of all proportion to the gravity of the offence.

[5] To apply the test properly, a Judge must (as did Judge Orchard) conduct a three- step analysis:5

(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.

1      Police v Mathieson [2018] NZDC 20147.
2      Crimes Act 1961, s 194(b). The maximum sentence is two years’ imprisonment.
3      Crimes Act 1961, s 306. The maximum sentence is seven years’ imprisonment.
4      See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]-[13].
5      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]-[9].

(b)Determine the direct and indirect consequences of a conviction for the offender.

(c)Determine whether those consequences are out of all proportion to the gravity of the offending.

[6] I will examine Judge Orchard’s reasoning against the circumstances before her and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.

Did the Judge make an error such that Mr Mathieson should be discharged without conviction?

(a) The gravity of the offending

[7] Mr Mathieson…

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.

Continue reading Mathieson v New Zealand Police

Details

AGLC: Mathieson v New Zealand Police [2018] NZHC 3153
Case: [2018] NZHC 3153
Decision Date: 3 December 2018

CaseChat Overview and Summary

In the case of Mathieson v New Zealand Police, the appellant, Warren David Mathieson, appeals a decision of Judge DJ Orchard to refuse to discharge him without conviction on charges of male assaults female and threatening to kill. The central issue before the court was whether Judge Orchard erred in refusing to discharge Mathieson without conviction, considering the potential consequences of a conviction for Mathieson.

The court evaluated the three-step analysis required by the Sentencing Act 2002, section 107, to determine whether the consequences of a conviction would be out of all proportion to the gravity of the offence. Firstly, the court assessed the gravity of the offending, considering the domestic violence incident and Mathieson's efforts to rehabilitate himself. Although the offending was of moderately serious gravity, the court recognised the mitigating personal circumstances. Secondly, the court determined the direct and indirect consequences of a conviction for Mathieson, including potential employment risks and the impact on his future travel plans. The court found that the consequences were not outside the ordinary consequences to be expected when a person commits a criminal offence. Finally, the court conducted a proportionality assessment, concluding that the consequences of convictions would not be out of all proportion to the gravity of the offending.

The court dismissed the appeal, upholding the decision of Judge Orchard to not discharge Mathieson without conviction. The reasoning and outcome of the court demonstrate the importance of considering both the gravity of the offending and the potential consequences of a conviction when applying the proportionality test under the Sentencing Act 2002, section 107.

Orders