McCaw v Police

[2012] NZHC 127

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2011-488-000069 [2012] NZHC 127

HAYDEN JOHN MCCAW

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 February 2012

Appearances: S Russell for Appellant

M Jarman-Taylor for the Crown

Judgment:      14 February 2012

RESERVED JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 14 February 2012 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

S Russell, Barrister, PO Box 598, Whangarei 0140 for the Appellant

Crown Solicitor, Whangarei for the Respondent

MCCAW V POLICE HC WHA CRI 2011-488-000069 [14 February 2012]

Introduction

[1]      Mr McCaw appeals against conviction and sentence on the grounds that he ought to have been discharged without conviction pursuant to s 106 and s 107 of the Sentencing Act 2002.

[2]      The appellant was charged with a single count of assault under s 196 of the Crimes Act 1961.  The maximum penalty was one year ’s imprisonment.  The charge arose out of an incident which occurred outside the IRD building on Banks Street, Whangarei, in the early hours of 21 May 2011.  The victim of the assault received a deep laceration above his left eye, a cut lip and a bruised and swollen jaw.

[3]      The appellant entered a plea of not guilty and the matter proceeded to a defended hearing before Judge de Ridder on 30 August 2011.  At the conclusion of the hearing, the Judge found the charge proved.  Defence counsel indicated that the appellant  would  be  seeking  a  discharge  without  conviction.    Sentencing  was therefore adjourned to allow an application to be made.   The matter came before Judge de Ridder on 7 October 2011.   The Judge declined the application for a discharge  without  conviction  and  convicted  the  appellant,  sentencing  him  to  9 months supervision and to pay emotional reparation of $800 to the victim.

Fresh evidence

[4]      The appellant has filed an updating affidavit for the purposes of the appeal. Such an affidavit can, of course, only be admitted if contains evidence that it is fresh and cogent.  The Crown submitted that some of the evidence in the affidavit was not fresh but did not take issue with its receipt on appeal.

[5]      The appellant annexes six documents to his affidavit.  The first is an undated letter from Peter Nock, the Northland Rugby Development Manager, inviting the appellant to attend an interview for the selection process for the 2012 development group.  Mr Nock filed an affidavit for the purposes of the sentencing hearing.  It was sworn on 29 September 2011 and refers to the appellant’s selection as a member of

the  development  group  earlier  in  2011.    The  undated  letter  adds  nothing  to

Mr Nock’s earlier affidavit.

[6]      The second document is an undated letter from Adriaan Ferris, Director of Northland Rugby, offering support to the appellant.  It is similar to and in places uses exactly the same language as the letter of support written by Greg Shipton, the Secretary of the Marist Club, which was annexed to the appellant’s affidavit sworn on 29 September 2011 and filed for the sentencing hearing.  Judge de Ridder was well aware of the support of Northland Rugby when he sentenced the appellant.

[7]      The third document is another letter of support from Tony Meachen, the Rugby Development Officer for New Zealand Marist Rugby Football Federation, who states that he knows the appellant through his inclusion in the New Zealand Marist Rugby Federation Colts Team that toured the Central North Island in August

2011.  Mr Meachen refers to potential offers from overseas clubs and concludes that it would be of great benefit if the appellant was able to pursue these opportunities without hindrance to his personal record.  Again, the submission that a conviction would hinder the appellant’s opportunities to travel overseas was clearly made to the sentencing Judge.  It is not new.

[8]      The fourth and fifth documents relate to the health of the appellant’s father. The appellant notes in his updating affidavit “As I have previously advised the Court my father has Degenerative Cerebella disease”.   This evidence also does not constitute fresh evidence.

[9]      The sixth and final document annexed to the appellant’s affidavit is a letter dated 25 January 2012 from his counsellor, advising the appellant’s counsel that the appellant had attended five sessions of counselling for a total of 6.5 hours and that he had asked the counsellor to continue seeing him.  These sessions would have taken place after sentencing as Judge de Ridder noted that, regrettably, the appellant had done nothing by way of courses or counselling to deal with the two issues of anger management and alcohol.   The fact that the appellant may now have undertaken counselling cannot be of relevance to the issue of whether the sentencing Judge was

right to hold that the consequences of conviction did not outweigh the seriousness of the offending.

District Court decision

[10]     In a careful decision, Judge de Ridder noted the test as to whether or not the Court should exercise its discretion to discharge a defendant without conviction had been the subject of consideration by the Court of Appeal, most notably in  R v Hughes.[1]

[1] R v Hughes [2008] NZCA 546.

[11]     The Judge noted the three stage test involved in granting a discharge.  Firstly, the Court is required to assess the seriousness of the offending.  Secondly, the Court is then required to assess the potential and likely consequences of the conviction for the defendant; and, thirdly, the Court is then required to embark on a balancing exercise to consider whether or not those consequences, potential or real, are out of all proportion to the seriousness of the offending.  If the Court determines that the consequences are not out of all proportion to the seriousness of the offending then the Court has no jurisdiction to decide whether to exercise its discretion under s 106 of the Sentencing Act to discharge the defendant without conviction.

[12]     The  circumstances  of  the  charge  were  described  by  Judge  de  Ridder  as follows:

[3]       ...this charge arose from an incident that occurred in the early hours of the morning in downtown Whangarei in the vicinity of some bars.  The complainant together with three friends had entered a bar in lower Bank Street, only stayed a short period of time and decided to leave. As they were walking down the street they came across a group of people with whom the defendant was associated.  Some derogatory comments were directed at an associate of the victim.  There was something of a verbal exchange between people in the two groups and at one stage the defendant waded into this group and delivered multiple blows to the head area of the victim.  He only stopped when he realised that the victim was not responding.  As a result of these multiple blows the victim suffered a significant cut above his left eye and he also suffered bruising to the jaw area.

[13]     The seriousness of the charge was assessed by Judge de Ridder as follows:

[5]       As far as the seriousness of the charge is concerned I note that this was an incident in which there was no provocation whatsoever by the victim. As  I  have  said,  the  incident  appears  to  have  been  sparked  by  some derogatory comments directed at the victim’s associate, I accept not by this defendant, but by someone in his group.  When the people in the victim’s group turned round to challenge or object to what was being said, there was an initial verbal confrontation followed by the defendant acting in the way I have described.  In my view, there is some force in Mr Wood’s description of this  as  being  street  thuggery.    It  involved  group  behaviour,  it  involved multiple blows to the head, one of which caused significant damage.  There was a background of consumption of alcohol involved as well.

[6]       In my view, this whole situation had the potential to turn seriously ugly.   Fortunately it seems to have dissipated rather quickly once the defendant realised the victim was not retaliating.

[14]     As to the potential and likely consequences of a conviction, Judge de Ridder had received three affidavits, one sworn by the appellant, one by Mr Nock and, one by the appellant’s mother.  The Judge noted that the real nub of the application was the effect a conviction could have on the appellant’s career as a sportsman.   He quoted a passage from the appellant’s affidavit and continued:

[11]     And he also says a conviction would have adverse effects on his abilities to be selected by rugby bosses for future teams.  He expresses the view that if the choice comes down to someone who does not have a conviction and him if he did have a conviction, that the other player would be chosen because of what he refers to as the implications a conviction would have for him travelling overseas and future reputations.

[12]      That general concern is expressed by Mr Nock in his affidavit where he confirms Mr McCaw’s attendance at the academy.  He expresses the view that a conviction will make overseas travel difficult if Mr McCaw has a conviction and also expresses the same view about what is likely to happen if a choice comes down to one of a player who has no convictions and one who does.

[15]     Judge  de  Ridder  took  the  view  that  the  potential  and  actual  likely consequences  of  a  conviction  were,  at  least,  somewhat  speculative.    Northland Rugby already knew of the appellant’s involvement in the assault and there was nothing to suggest he would be discharged from the development group because of the assault.  It was also by no means certain that the appellant would be prevented from travel nor was there evidence to show which countries might refuse to allow the appellant entry.

[16]     Judge de Ridder also noted:

[16]     ...indeed, I note that it is common knowledge over the last two or three years there have been examples in the press of rugby players at a very high level who have received convictions for assaultative behaviour and there has been no apparent, it seems, necessarily automatic bar to them being selected.  Obviously a conviction would have to be disclosed.  It would be up to the appropriate authorities in whatever country was appropriate or involved to determine in terms of their own rules what effect that might have.

[17]   Judge de Ridder stated that obviously a conviction can have adverse consequences for anybody – that is a normal consequence of a conviction.  He did not however think that a conviction would be huge barrier to the appellant pursuing his career as a professional rugby player.

[18]     As to the balancing exercise, Judge de Ridder was not satisfied that the consequences of conviction were out of all proportion to the seriousness of the offending.

[18]      ...Shortly put, I am not satisfied that they are so out of all proportion. As I have said, this was a serious assault in the context of what could be described as street thuggery with no logical or sensible background to it whatsoever.   The consequences are, of course, that Mr McCaw would be required to disclose a conviction but, as I understand it, it is not automatic that a conviction for a charge of this sort would be an immediate barrier to travel to any particular country.

[19]     That  would  have  been  sufficient  for  Judge  de  Ridder  to  dismiss  the application for a discharge without conviction.  However, he went on to discuss the exercise of his discretion if the consequences of conviction were out of all proportion to the seriousness of the offending.  He noted that the appellant received diversion from the police in respect of a previous assault in 2009.  The appellant had also not undertaken any courses or counselling to address issues of anger management and alcohol.   Therefore, notwithstanding the appellant’s lack of previous convictions, Judge de Ridder stated he would not, in any event, have exercised his discretion in favour  of  granting  the  application  even  if  he  had  been  wrong  in  terms  of  the balancing exercise.

Submissions

[20]     In essence, counsel for the appellant submitted that Judge de Ridder gave too much weight to the victim’s views and wrongly characterised the offence as a serious example of an assault.   He noted the reference at para [4] in Judge de Ridder’s sentencing notes to a statement made by the victim in the victim impact statement about recurring nose bleeds and coughing up blood and a comment that he was disheartened by the appellant’s behaviour on that night.

[21]     As  to  the  seriousness  of  the  offence,  counsel  submitted  that  discharges without conviction are often given in the Domestic Violence Court for more serious charges of male assaults female, especially where the defendant has received counselling or attended courses relating to anger management or alcohol and drug rehabilitation, as the appellant in this case has subsequently done.

[22]     Further, counsel for the appellant sought to distinguish the cases of more prominent players who had not been restricted in their playing opportunities because of convictions for assaultative behaviour, saying that these players were already on contract and submitted that if a conviction was to be entered against Mr McCaw he may not be able to secure a contract as a professional player.  Counsel also pointed to the fact that Mr McCaw may have prospects of travel as early as this year in that he has clubs in Sri Lanka interested in securing his services.

[23]     Counsel for the appellant concluded:

This conviction would inevitably effect his reputation and any perspective future employment in this area, further it would impede future travel within this field and all the hard work that Mr McCaw has undergone would be in vein.

If Mr McCaw were to receive a conviction the Rugby Academy would also suffer  as  the  time  and  expense  they  have  invested  in  him  would  be  a complete loss.

[24]     On the other hand, counsel for the Crown submitted that it was proper for Judge de Ridder not to be satisfied that the direct and indirect consequences of the conviction would be out all proportion to the gravity of the offence.   The Crown noted the thrust of the application was the impact the conviction would have on the

appellant’s potential career as a professional rugby player but submitted that this was not a case where the appellant could point to a specific, identifiable consequence that would flow from a conviction.

[25]     Counsel for the Crown submitted that Judge de Ridder was correct to classify the offence as serious.  The Judge had observed that the assault was unprovoked and was a sustained attack which involved multiple blows to the head.   In those circumstances,  counsel  submitted  it  was  entirely  proper  for  a  conviction  to  be entered.  The direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence.

Discussion

[26]     In Austin, Nichols v Stitching Lodestar,[2] the Supreme Court gave guidance on the proper approach to be taken by an appellate court in general appeals.  It did not, however, specifically refer to appeals against the exercise of a discretion.   The decision granting or declining an application for discharge without conviction has always been seen as an exercise of discretion.  The traditional approach to appeals against the exercise of a discretion is that an appellate court will only interfere if the judge below erred in principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong.

[2] Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[27]     Although there have been a number of cases suggesting that this approach may be modified in light of Austin Nichols, I will approach this appeal on the basis that  I  can  only  allow  the  appeal  if  I  perceive  some  error  on  the  part  of Judge de Ridder.   I do not intend to embark on the sentencing exercise afresh nor substitute my own opinion for that of Judge de Ridder.

[28]     It  is  my  view  that  Judge  de  Ridder  did  not  fall  into  error.    As  to  the seriousness of the offence, the assault occurred in the early hours of the morning, alcohol was  involved and a number of other  persons were present.   It had the

potential to escalate into really serious violence.   The assault was also not a push

with an open hand.  It involved not just one but a number of punches to the victim’s head.  It was unprovoked.  The victim did not retaliate.  The appellant only stopped when he realised the victim was not responding.  The victim suffered a number of injuries, including a deep laceration above his left eye.  Recurring nose bleeds and coughing up blood, as described in the victim impact statement, are consistent with the nature of the assault.  Judge de Ridder was, in my view, correct to characterise the assault as serious.

[29]     As to the consequences of the conviction for the appellant, Northland Rugby continue to support the appellant.  There is no suggestion he will be let go from the development group because of the assault.   The highest it has been  put by the Director of Rugby Northland is that they have had interest from clubs overseas that are keen on securing the appellant as a player but “they are waiting on the result of this incident”.  The club or clubs overseas are not identified and it is not explained how a conviction would affect their decision whether or not to offer a contract to the appellant.   Judge de Ridder was therefore right to characterise the possible consequences of conviction as speculative.

[30]     It also seems to me that the balancing exercise was carried out appropriately by Judge de Ridder. No one factor was accorded disproportionate weight.  The Judge noted that there would be adverse consequences for the appellant as there are for anyone  convicted  of  an  offence.    Depending  upon  the  entry  requirements  of particular countries, the appellant may be required to disclose the conviction but it would   not   be   an   immediate   barrier   to   travel   to   any   particular   country. Judge de Ridder was, in my view, not plainly wrong in according more weight to the seriousness of the assault than the normal consequences of a conviction.

[31]     The guidance for granting a discharge without conviction in s 107 of the Sentencing Act 2002 refers to the consequences of a conviction being out of all proportion, not just out of proportion.   Section 107 therefore imposes a relatively high threshold and the consequences of conviction must therefore be of real significance.

[32]     Two  cases  in  particular  were  cited  to  me.     Higginson  v  Police[3]   and Haukinima v Police.[4]     Both involved rugby players who wished to pursue a professional career.   Both had been refused discharges without conviction in the District Court.   In the High Court, Mr Higginson’s appeal was dismissed while

[3] Higginson v Police HC Napier CRI 2010-441-38, 23 November 2010.

[4] Haukinima v Police HC Auckland CRI 2006-404-344, 11 July 2007.

Mr Haukinima’s appeal was allowed.  Counsel urged me to follow one or the other. Each case is however unique.  I do not consider that it is necessary for me to review these cases in detail and to distinguish one or other from the present case.

[33]     In the present case, I am not persuaded that Judge de Ridder’s decision can be faulted.  He has adopted an entirely proper approach to the sentencing exercise.  The appeal is dismissed.

……………………………….

Woolford J