McDonnell v Police
[2012] NZHC 2480
•25 September 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2011-419-000102 [2012] NZHC 2480
BETWEEN SAMUEL JAMES MCDONNELL Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 25 September 2012
Appearances: T Sutcliffe for Appellant
P Cornege for Appellant
Judgment: 25 September 2012
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Hamilton
Copy to: T Sutcliffe, Hamilton
MCDONNELL V NZ POLICE HC HAM CRI-2011-419-000102 [25 September 2012]
[1] On 17 November 2011 Judge Cocurullo in the District Court at Hamilton refused the appellant’s application for a discharge pursuant to s 106 of the Sentencing Act 2002, convicted him and sentenced him to 200 hours’ community work and nine months’ supervision. The sentence was imposed on one charge of assault with intent to injure.
[2] The process leading to the conviction in the District Court was somewhat complicated. Despite the fact the appellant had made a full and frank admission to the police in relation to his actions, he was apparently initially advised to plead not guilty. However, when the matter came before the Court, the Judge was invited to consider the statement the appellant had made to the police. In the meantime counsel, (not Mr Sutcliffe), discussed the matter further with the police prosecutor. It was agreed that the police would withdraw a separate charge of assault if the appellant pleaded guilty to assault with intent to injure. The police also agreed not to oppose a discharge without conviction. However, when the Judge returned to Court, having considered other material as well as the appellant’s statement and was advised of the position, he remanded the matter for a hearing as to the circumstances of the offence. There then followed, at a later date, a full hearing as to the circumstances leading up to the incident.
[3] The police position changed in the meantime. When the case was heard on
17 November 2011 the police no longer supported the discharge without conviction sought by the appellant.
[4] After presiding over the fact hearing the Judge declined the application for discharge without conviction and imposed the above sentence. The appellant then brought this appeal.
[5] The appeal raised issues as to the appellant’s representation in the District
Court and the process followed through that Court.
[6] From the brief summary I have referred to there are some issues arising from the process in the District Court that are of concern to the Court. Prior to the hearing of this appeal counsel for the appellant, Mr Sutcliffe and counsel for the Crown
responsibly discussed the matter and had agreed that this appeal should proceed on the basis of the agreed summary of facts as reflecting the appellant’s actions on the night and supporting the charge. Mr Cornege accepted the fact hearing gave background to the incident, but the facts of the offending were sufficiently set out in the summary.
[7] Having reviewed the matter and after hearing further from counsel as to that rather unusual approach, I agreed that in the particular circumstances of this case, it was appropriate. This conviction was entered almost a year ago. Given the background to the way this appellant was dealt with through the process in the District Court one possible outcome of the appeal would have been to allow the appeal and to refer it back to the District Court for fresh consideration of the matter. That, however, is in no-one’s interest. It is in the interests of neither the appellant nor the complainant or anyone else associated with the case for it to continue. For that reason I have acceded to counsels’ joint request to deal with this matter on the basis of the agreed summary of facts.
[8] The agreed summary of facts discloses that just before 2 o’clock in the morning of 21 January 2011 the appellant was working as security at the Outback Inn, Victoria Street, Hamilton. He attempted to assist another staff member who was removing an intoxicated patron. A struggle ensued. While the complainant was being escorted from the premises he fell to the ground outside the rear gate. While the complainant was on the ground the appellant bent over him and attempted to punch him in the face but missed and hit the ground. At that stage members of the public intervened and pulled the appellant away from the complainant. While being pulled away the appellant broke free and lashed out at the complainant, kicking him once in the face. As a result of the kick the complainant received minor bruising and skin abrasions. The appellant was restrained and calmed down. The appellant has never previously appeared in Court and as noted, gave a full statement to the police.
[9] In R v Hughes1 the Court of Appeal confirmed that a decision under s 106 of the Sentencing Act is discretionary in nature but importantly, before that discretion is
1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222, (2008) 24 CRNZ 179 (CA).
engaged the Court must be satisfied under s 107 that the consequences of conviction would be out of all proportion to the gravity of the offence.
[10] The proportionality test under s 107 is not itself a matter of discretion but a matter of fact requiring judicial assessment and, as such, is subject to normal appeal principles. That position has recently been confirmed by the Court of Appeal in H v R.2 That is the approach that I take to this appeal. For that reason, and given the approach counsel have taken it is unnecessary to refer to the Judge’s decision.
[11] The issue of whether a discharge is appropriate is guided by s 107 which provides the gateway through which any application for discharge without conviction must pass. The assessment at this stage is whether, having regard to the facts relevant to the gravity of the offence, including culpability of the appellant, the consequences of conviction would be out of all proportion to the gravity of the offence.
[12] In terms of assessing the gravity of the offence in this case I consider that the following factors are relevant. Mr Sutcliffe conceded that the charge is a serious charge and that lashing out and kicking at the complainant in the face is a serious matter. However, against that, the appellant at the time was just 21. He was apparently left in charge of security at this busy bar. It is apparent that there was a struggle prior to the eviction of the intoxicated complainant from the premises. The lashing out, as described in the summary of facts, appears to have been a spontaneous lashing out, even though it followed an earlier attempt by the appellant to punch the complainant. Most significantly in the appellant’s favour is the fact the consequential injuries in this case are minor and non lasting. The complainant received at most minor bruising and skin abrasions.
[13] While the offence is serious as reflected by the maximum penalty of seven
years’ imprisonment, that of itself is not determinative. In Haukinima v Police3
Harrison J noted the offence in that case prescribed a maximum term of imprisonment of seven years. He accepted that was not determinative referring to
2 H v R [2012] NZCA 198.
3 Haukinima v Police HC Auckland CRI-2006-404-344, 11 July 2007.
Boonen v Police4 and Lee v Police5 both cases involving a maximum sentence of 10
years’ imprisonment where discharges without conviction were allowed.
[14] Again in the case of Cross v Police6 Miller J identified a number of cases in which discharges were granted following assaults: Savage v Police;7 Scrimgeour v Police;8 Rae v Police;9 and Kenyan v Police.10
[15] So while the offence of injuring with intent to injure is serious, against that it was a spontaneous act by a young man in a difficult situation. It led to minor and non lasting injuries on the complainant. It has to be regarded as towards the lower end of offending of this nature.
[16] I then consider the consequences of conviction on the appellant. At the time the appellant was studying to be a teacher. He was studying for a Bachelor of Arts degree with the intention of completing a post-graduate course in teacher training. He has a family connection in relation to that profession in that his mother is a teacher.
[17] As a consequence of the conviction he ceased his study for a Bachelor of Arts, took some time off, dropped out, felt unable to continue and returned home to live with his parents for a time. He did so with the knowledge imparted by his mother. As a primary school teacher she was well aware of the difficulty that someone with a conviction would face in obtaining employment as a teacher. In her most recent affidavit she has confirmed that she has been involved in teaching for 26 years and has been a principal for four years. She knows from discussing with other principals that there are many applications for teaching positions. While having a conviction does not mean a teacher cannot become registered, the real impact is when the person applies for a job. In her experience it would be almost impossible
to get a job with such a conviction.
4 Boonen v Police HC Wellington CRI-2003-485-41, 14 October 2003.
5 Lee v Police HC Auckland CRI-2005-404-028, 27 July 2005.
6 Cross v Police HC Wellington, CRI-2004-485-120, 16 November 2004.
7 Savage v Police HC Auckland AP 99-99, 30 July 1999.
8 Scrimgeour v Police HC Wellington AP 87-91, 8 May 1991.
9 Rae v Police HC Wellington AP 270-01, 13 February 2002.
10 Kenyan v Police (1994) 12 CRNZ 337.
[18] The appellant’s mother’s evidence is supported by the evidence of a Mr Couling, a primary school principal with a Masters degree in education and various post graduate diplomas in education. He has been a teaching professional for 30 years and a principal for eight years. Mr Couling says quite reasonably that officially no school would ever say that a male with a conviction for assault would not get a placement in a school but that said, a candidate with a criminal conviction for the charge of assault with intent to injure would almost certainly be overlooked. There are many candidates for jobs so that any blemish on someone’s character, particularly for violence would be seriously detrimental.
[19] Counsel for the Crown made the point that of course the appellant’s mother and Mr Couling are primary school principals. Their experience is in that area whereas the appellant has now returned to university and is studying computer engineering. If he pursues his career in teaching he is likely to be a secondary school teacher and in that area there may not be the same issues. The appellant has confirmed in his most recent affidavit that it is still his desire to pursue a post graduate in teaching and become an information technology teacher. He considers that is where the future of teaching is heading and wishes to be part of that.
[20] While I acknowledge the points that Mr Cornege makes about the appellant’s mother and Mr Couling’s position as primary school principals I think it is almost inevitable, given a conviction for assault with intent to injure, that even at a secondary school level where science or information technology teachers may be in demand, a conviction would pose real difficulties in the appellant’s future employment.
[21] The appellant has already experienced difficulty in obtaining employment, even in part-time work once he has disclosed his existing conviction. He has been forced to rely on his parents to support him in part through his university studies.
[22] I note that in the recent Court of Appeal decision of H v R11 H had initially been refused a discharge without conviction. At the time of the incident she had
been employed as an early childhood educator. Despite the support of her employer
11 H v R [2012] NZCA 198.
her ongoing employment was considered untenable. The Teachers Council had formally censured her and while it had decided not to refer the matter to the Disciplinary Tribunal she was unable to obtain other employment in the teaching area. At the time of the appeal she was in receipt of a benefit.
[23] I am satisfied that there have already been real consequences to the appellant as a result of the conviction and that if the conviction stands there will be significant consequences to him in the future which will effectively prevent him from pursuing a career in teaching. The conviction would make it almost impossible for him to obtain employment in that area.
[24] Mr Sutcliffe also referred to the issue of difficulty of travel overseas and provided affidavit evidence to support that from a travel consultant. I accept that there may be some difficulties in relation to that but of itself I do not consider that to be a particularly significant factor.
[25] Standing back and looking at the matter overall I am satisfied that the long- term consequences of a conviction of assault with intent to injure, given the circumstances of this particular offence and the limited and passing extent of the injuries, (which are what make the offence a serious one), would be out of all proportion to the gravity of the offence in this case. I am satisfied therefore that on the basis of the summary of facts before this Court the s 107 gateway in this case is open.
[26] It is then a matter of discretion as to whether s 106 should be applied and the appellant discharged.
[27] I am satisfied that he should be in this case. I take into account that he has already served the sentence of 200 hours’ community work, and carried out the supervision and the course required by the Judge. I also take into account that he was a young man at the time and placed in a difficult situation. He co-operated fully with the police and has no prior convictions. There is no reason for him, with the support that he has and having been through this experience to ever be back before the Court again.
[28] There is one further feature of this case that I also take into account generally in the interests of overall justice. Following this incident the complainant and his brother returned to the premises and assaulted the appellant. Although the complainant and his brother were charged in relation to that incident they were granted diversion by the police.
[29] When I stand back and look at this matter overall I am satisfied that this is a case where the discretion ought to be exercised in favour of a discharge without conviction.
[30] The appeal is allowed. The conviction is set aside. The appellant is discharged without conviction under s 106 of the Sentencing Act.
Venning J
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