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McAlister v Police

McAlister v Police

Case [2022] NZHC 1247 24 May 2022

Appeal

Sentencing

Consequences of Conviction

Discharge Without Conviction

Proportionality

Aggravating and Mitigating Factors

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-98

[2022] NZHC 1247

IN THE MATTER OF an appeal against refusal to discharge without conviction

UNDER

the Criminal Procedure Act 2011

BETWEEN

JOHN MCALISTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 May 2022

Appearances:

A Wei for the Appellant

CL Wilkinson for the Respondent

Judgment:

24 May 2022

Reasons:

31 May 2022

REASONS FOR RESULT JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 31 May 2022 at 3.00pm

Registrar/Deputy Registrar

Date……………………………

Solicitors: Meredith Connell, Auckland To: A Wei, Auckland

MCALISTER v NZ POLICE [2022] NZHC 1247 [24 May 2022]

Introduction

[1] The appellant, John McAlister pleaded guilty to charges of assault with intent to injure,1 possession of an offensive weapon2 and behaves threateningly.3 He applied for a discharge without conviction. On 10 March 2022, Judge K Lummis in the North Shore District Court declined his application.4 Mr McAlister appealed that decision.

[2] At the conclusion of the appeal hearing before me, I delivered a result judgment allowing Mr McAlister’s appeal. These are my reasons for doing so.

Facts

[3] On 27 June 2020, Mr McAlister and his wife were at a birthday party in Dairy Flat. The two victims, C and B, were also at the party. The two couples did not know each other.

[4] The party was held in a private bar set up on a rural property, which had a high- quality CCTV system that recorded both audio and video. The footage recovered by police formed the basis of the summary of facts to which Mr McAlister pleaded guilty.

[5] The party continued on well into the early hours of the morning. Everyone had been drinking heavily and was intoxicated. Mr McAlister especially had been drinking to excess, and went off to sleep in his vehicle parked outside.

[6] At about 5 am on 28 June 2022, Mr McAlister’s wife and the two victims were the only people left talking in the bar. Everyone else had either left or gone to bed. An argument developed between Mr McAlister’s wife and the male victim, C. As noted by the Judge, the CCTV footage suggests that the argument was over the way C had been treating his dog. The Judge observed that Mr McAlister’s wife was insistent and persistent and “in C’s face” for a significant amount of time, while he and the female victim B were trying to diffuse the situation.

1      Crimes Act 1961, s 193. Maximum penalty 3 years’ imprisonment.
2      Crimes Act 1961, s 202A(4)(b) (representative). Maximum penalty 3 years’ imprisonment.
3      Summary Offences Act 1981, ss 21(1)(a) and (3). Maximum penalty 3 months’ imprisonment or
$2,000 fine.
4      Police v McAlister [2022] NZDC 4109.

[7] The argument developed to a point where Mr McAlister’s wife went to strike C and he grabbed her arms as she continued trying to punch him. The Judge recorded that this was accompanied by lots of…

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 McAlister v Police

Details

AGLC: McAlister v Police [2022] NZHC 1247
Case: [2022] NZHC 1247
Decision Date: 24 May 2022

CaseChat Overview and Summary

The appellant, John McAlister, appealed against the District Court's decision to refuse his application for a discharge without conviction following his guilty pleas to charges of assault, possession of an offensive weapon, and behaving threateningly. The appeal was heard by Fitzgerald J in the High Court of New Zealand Auckland Registry. The court had to decide whether the consequences of a conviction would be out of all proportion to the gravity of Mr McAlister’s offending, and whether the court should decline to grant a discharge without conviction. The High Court allowed the appeal, quashed the convictions, and granted a discharge without conviction.

The court considered the aggravating and mitigating factors of Mr McAlister's offending and concluded that once personal mitigating factors were taken into account, the gravity of the offending was moderate. The court then assessed the consequences of a conviction and found that because of the nature of the visa that Mr McAlister holds, he is as a matter of statute liable to deportation, and there is a real and appreciable risk of deportation. The court concluded that the consequences of a conviction would be out of all proportion to the gravity of Mr McAlister’s offending, as it would be a real and appreciable risk that he will be permanently separated from his wife and young children. The court also noted that the District Court had placed too little weight on personal mitigating factors in describing the offending for the purposes of the proportionality assessment.

Orders