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…

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 McCaw v Police

Details

AGLC: McCaw v Police [2012] NZHC 127
Case: [2012] NZHC 127
Decision Date: 14 February 2012

CaseChat Overview and Summary

The appellant, Hayden John McCaw, appeals against his conviction and sentence for assault under section 196 of the Crimes Act 1961. The case involves an incident outside the IRD building in Whangarei, where the appellant allegedly assaulted a victim causing a deep laceration above the victim's left eye, a cut lip, and a bruised and swollen jaw. The appellant pleaded not guilty and was convicted by Judge de Ridder, who declined to grant a discharge without conviction and instead sentenced him to 9 months supervision and ordered emotional reparation of $800 to the victim. The appellant's appeal focuses on the grounds that he should have been discharged without conviction under sections 106 and 107 of the Sentencing Act 2002.

The legal issues before the court were whether the District Court judge erred in not granting a discharge without conviction and whether the consequences of the conviction were out of all proportion to the seriousness of the offending. The appellant argued that the conviction would significantly impact his career as a rugby player and his potential to travel overseas. The Crown contended that the District Court judge was correct in classifying the offence as serious and in finding that the consequences of conviction were not out of all proportion to the gravity of the offence.

Judge Woolford reviewed the District Court's decision and found no error in principle. The seriousness of the offence was correctly assessed as involving an unprovoked attack with multiple blows to the head, causing significant injuries. The potential consequences of the conviction, particularly concerning the appellant's rugby career, were deemed speculative and not sufficiently significant to warrant a discharge without conviction. Judge Woolford concluded that the balancing exercise was appropriately conducted and that the consequences of conviction were not out of all proportion to the seriousness of the offending. Therefore, the appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal.

Orders