McDonnell v Police - [2012] NZHC 2480

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…

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 McDonnell v Police

Details

AGLC: McDonnell v Police [2012] NZHC 2480
Case: [2012] NZHC 2480
Decision Date: 25 September 2012

CaseChat Overview and Summary

In McDonnell v Police, the appellant appealed against a decision of the District Court which had declined his application for a discharge without conviction under s 106 of the Sentencing Act 2002. The appellant, who had been sentenced to 200 hours of community work and nine months’ supervision on a charge of assault with intent to injure, argued that the consequences of conviction would be out of proportion to the gravity of the offence. The appeal raised issues relating to the appellant’s representation in the District Court and the process followed through that Court. The High Court accepted the agreed summary of facts, which showed that the appellant had kicked an intoxicated patron in the face while working as security at a bar, resulting in minor bruising and skin abrasions. The Court of Appeal had previously confirmed that a decision under s 106 of the Sentencing Act is discretionary in nature but importantly, before that discretion is 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. The High Court considered the gravity of the offence and the consequences of conviction on the appellant, who had ceased his study for a Bachelor of Arts degree and had taken some time off, dropped out, felt unable to continue and returned home to live with his parents for a time. The Court concluded 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, would be out of all proportion to the gravity of the offence in this case. The appeal was allowed, the conviction was set aside and the appellant was discharged without conviction under s 106 of the Sentencing Act.

Orders