McAlister v Police

[2015] NZHC 2423

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000184 [2015] NZHC 2423

BETWEEN

MASON McALISTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 September 2015
Appearances:	B P Henry for Appellant E C Rutherford for Respondent
Judgment:	5 October 2015

JUDGMENT OF COURTNEY J [Appeal against conviction]

This judgment was delivered by Justice Courtney on 5 October 2015 at 4.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………...

McALISTER v NZ POLICE [2015] NZHC 2423 [5 October 2015]

Introduction

[1]      Mason McAlister pleaded guilty in the District Court at North Shore to one charge of possessing an offensive weapon (scissors) in circumstances that prima facie showed an intention to use it to commit an offence involving the threat of violence1  and one of threatening to injure with the intent of intimidating.2    Judge Bouchier refused his application for an order discharging him without conviction.3

Mr McAlister appeals that decision.

The offending

[2]      The circumstances of the offending were recorded in the summary of facts on which  Mr  McAlister  pleaded.     These  events  occurred  just  after  midday  on

7 November 2014.   The female complainant was parked on  Bracken Avenue in Takapuna.  Mr McAlister approached her car and gestured for her to wind down the window, which she did.  He began asking questions about why she was parked in that location.  He became aggressive, telling her she was not allowed to park there. He yelled at her, telling her to get out of the car.  He produced a white glove with padding on the knuckles and a pair of handcuffs.  These acts formed the basis for the charge of behaving threateningly under the Summary Offences Act 1981.

[3]      Still holding the handcuffs in the air for the victim to see Mr McAlister then reached into his pocket and revealed the blade of a pair of scissors, saying “this is what I can do to you” and ordering the victim to get out of the car and “fight me”. Seeing the blade of the scissors led the victim to believe that McAlister had a knife. The act of producing the scissors formed the basis of the charge of possessing an offensive weapon under the Crimes Act 1961.

The District Court decision

[4]      Mr McAlister sought a discharge without conviction only in respect of the

Crimes Act charge. The application was not advanced on the usual basis of specific consequences that would result from a conviction.   Instead, it was argued that the

1      Crimes Act 1961, s 202A(4)(b).

2      Summary Offences Ace 1981, s 21(1)(a).

3      Sentencing Act 2002, s 106.

charges arose from the same facts.  The Judge referred to the fact that pleading guilty to a lesser charge and autrefois acquit to a more serious charge is no longer permitted as a result of s 46 of the Criminal Procedure Act 2011.  In any event, the Judge did not accept that the facts did give rise to only one charge.

[5]      The Judge therefore proceeded to consider the application in accordance with the criteria imposed by s 107 of the Sentencing Act.  No specific consequences were relied on; instead it was argued that the general consequences of a conviction under the Crimes Act were out of all proportion to the offending and that justice required that only the conviction under the Summary Offences Act be entered.

[6]      The Judge referred to the offending, including the effect on the victim.  She took note of Mr McAlister’s personal circumstances: he was 18 years old at the time of sentencing, undertaking a starter course in building and hoping to be taken on as an apprentice builder.  There was medical evidence before the Court showing that he met the diagnostic criteria of autism spectrum disorder and was undergoing counselling in order to assist his behavioural responses to situations.  Although she did not say so explicitly, it is implicit that she did not regard the consequences of conviction on both charges as out of all proportion to the gravity of the offending.

[7]      In terms of sentencing the Judge noted Mr McAlister’s age and the fact that he had only one prior unrelated conviction.   She considered that a fine would be appropriate for each offence and took into account his limited means, imposing a fine of $150 on the Crimes Act charge and $100 on the Summary Offences charge with court costs of $130 on each.

Appeal

[8]      Mr Henry, for Mr McAlister, argued that the Judge had erred in her decision by failing to adequately consider ss 7 and 8 of the Sentencing Act.  His argument was essentially that the offending should be regarded as being at the lowest end of the spectrum (this being indicated by the penalty imposed for the Crimes Act charge) and that a conviction under the Crimes Act would have severe implications for Mr McAlister and should therefore be reserved for serious offending.  He submitted

that all of the purposes of sentencing identified in s 7 would be satisfied by a conviction only under the Summary Offences Act.  In relation to s 8(h) he submitted that convicting Mr McAlister of two offences arising from the same set of facts was disproportionately severe because it effectively punished him twice.

[9]      I do not consider that the Judge made any error in not referring to ss 7 and 8. In considering an application for a discharge without conviction the sentencing judge must first be satisfied as to the criteria under s 107. That criteria does not include the considerations arising under ss 7 and 8.  In R v Hughes the Court of Appeal said:4

The test is the test.  Simply, under s 107 the court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, before it may consider the exercise of the discretion conferred by s 106 to discharge without conviction.

[10]    It is only after the Judge has been satisfied that the direct and indirect consequences of a conviction will be out of all proportion to the gravity of the offence that other considerations can be considered.  They are considered in relation to the exercise of the court’s discretion.  The Court of Appeal made this clear in R v Blythe:5

As was pointed out in Hughes, the Court must first consider whether the disproportionality test in s 107 has been met.  Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106.   It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss  9  and  9A (as  we  have  pointed  out  these  were  relevant  to  the  s  7 disproportionality test) and the matters dealt with in ss 10 and 10B must all be taken into account.  That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. …

Our description of the discretion under s 106(1) as residual is deliberate. That is because it will be a rare case where an offender has passed through the   s   107   “gateway”,   but   is   then   not   discharged   under   s   106(1). Nevertheless, there is a discretion in those rare cases in light of the statutory wording.   Section 106(1) does not say that the Court must discharge the offender without conviction where s 107 is satisfied.   Nor does s 107 say that.  What s 107 does make clear is that an offender must not be discharged unless the disproportionality test in that section is met.

4      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

5      R v Blythe [2011] NZCA 190, [2011] 2 NZLR 620.

[11]     Mr Henry did not specifically address the Judge’s treatment of the s 107 test; it is clear from her discussion that she did not consider that the consequences for Mr McAlister of a conviction would be out of all proportion to the seriousness of the offending.  I agree with that assessment.  The fact that Mr McAlister received a very low fine on each charge was clearly a reflection of his personal financial circumstances, not the seriousness of the offending.  This was, in fact, quite serious offending  of  its  type.    The  complainant  was  alone  and  faced  with  a  plainly frightening situation.  In particular, the displaying of the blade of scissors with the accompanying  threat  could  hardly be  described  as  being  the  lowest  end  of  the spectrum.  Nor were there any specific consequences for Mr McAlister identified as arising from the conviction.

[12]     In these circumstances the Judge rightly concluded that the s 107 test had not been met.   Given that conclusion, the Judge was not required to exercise her discretion.  Therefore, she was not required to consider ss 7 and 8.  The appeal is

dismissed.

P Courtney J