McFarland v Police HC Auckland CRI-2011-404-143

[2011] NZHC 949

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-143

LOGAN MCFARLAND

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 August 2011

Appearances: G Vear and J Edgar for Appellant

R Savage for Respondent

Judgment:      15 August 2011

(ORAL) JUDGMENT OF LANG J

[on appeal against conviction and sentence]

MCFARLAND V NEW ZEALAND POLICE HC AK CRI-2011-404-143 15 August 2011

[1]      Mr McFarland pleaded guilty in the District Court to a charge of assaulting a constable acting in the execution of his duty.  On 28 April 2011 Judge Cunningham convicted him and ordered him to come up for sentence if called upon to do so within the next six months.[1]   Mr McFarland appeals against conviction and sentence. He does so on the basis that he contends that the Judge ought to have discharged him without conviction.

The facts

[1] New Zealand Police v McFarland DC Waitakere CRI-2010-090-010648, 28 April 2011

[2]      The  factual  basis  upon  which  Mr  McFarland  entered  his  guilty  plea  is contained in a summary of facts that was not the subject of any material dispute. This recorded that Mr McFarland was at home on the evening of 16 December 2010. He had been drinking to excess.  Some form of family dispute arose and he left the home.   His family became worried  about  him  and  called  the police.   A police constable found Mr McFarland a short distance away from his home.   When the constable approached Mr McFarland, Mr McFarland punched him in the face with a closed fist.  He did so without provocation and without any warning to the constable that he was likely to be the subject of an assault.  When asked to explain his actions he said that he had been so drunk that he did not realise what he was doing.

The power to discharge without conviction

[3]      The power to discharge an offender without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002.   In summary, they provide the Court with a discretion to discharge an offender without conviction.  The Court may only exercise that discretion, however, if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[4]      In exercising its discretion under s 106, the Court is required to undertake a three step process originally suggested by the Court of Appeal in Fisheries Inspector v Turner[2].  First, the Court must consider the gravity of the offence.  Next, it must

consider whether a conviction will be out of all proportion to the gravity of the

offence.    Finally,  it  is  required  to  exercise  its  discretion  either  in  favour  of  a discharge without conviction or by refusing the application.

[2] Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 241-242.

[5]      A determination as to whether the consequences of a conviction will be out of all proportion  to  the gravity of the offending is  a judicial  assessment  requiring consideration  of  all  material  factors.    These  include  the  circumstances  of  the offending as well as those of the offender.  Issues of public interest may also come into play in this phase, but more particularly so in the final phase which is the exercise of the residual discretion.

[6]      Once the Court has found that the consequences of a conviction are likely to be disproportionate to the gravity of the offending, the discretion will generally be exercised in favour of the offender.  This is because the issues that need to be taken into account in considering the exercise of the discretion overlap to a large extent with the assessment of proportionality.

The gravity of the offending in the present case

[7]      Viewed in isolation, the offending is not particularly serious, given that it involved a single punch.  It does, however, have several aggravating factors.

[8]      First, it involved an assault on a police constable acting in the course of his duty.  Police officers are entitled to the protection of the law particularly when, as in the present case, they have been called to the assistance of others.  They are entitled to undertake their duties free from the threat of physical assaults at the hands of those whom they have been called to assist.

[9]      Second, the attack was completely unprovoked.   The constable had done nothing at all to warrant the punch that Mr McFarland delivered to his face.

[10]     Third, the assault was to the head.  Blows to the head of a victim are always regarded as being more serious than those directed to other parts of the body because of the severe damage that they can do.   Indeed, this Court has dealt on numerous occasions with incidents where death has been caused by a single punch to the head.

[11]     Thankfully, the physical effect of the assault has not been particularly serious for the constable.   He was obviously shocked by the incident because he was not expecting it.  He has not, however, had any lasting long-term effects as a result of it. The sentiment that he expresses is one of frustration that he was attacked by a member of the public whom he had been called to assist.

[12]     Taken as a whole, the circumstances of the offending were such that they would ordinarily warrant a community-based sentence.  In the present case, however, counsel for Mr McFarland submits that Mr McFarland’s personal characteristics are such that the gravity of the offending is significantly reduced.  She points to the fact that  Mr  McFarland  has  had  a  very  troubled  upbringing.    He  was  subjected  to physical and emotional abuse from an early age at the hands of his father.  He was also reared in an environment in which alcohol abuse was a signal feature.  It appears that all members of his family drank together, and to excess, on a regular basis.  This is the means by which the family bonded.

[13]     This means that Mr McFarland has been raised with the perception that alcohol abuse is part of everyday life.  Up until recently he has not seen his behavior as necessarily being out of step with that normally associated with family bonding activities.  Of even more importance, however, is the fact that Mr McFarland suffers from several other underlying problems.  He suffers from Torrettes Syndrome, from ADHD, and also from an anxiety disorder.

[14]     I have received a significant amount of material from a social worker who has had a significant involvement with Mr McFarland in recent years.  This confirms that Mr McFarland’s afflictions have posed a very significant problem for him whilst growing  up.    These  have  been  exacerbated  by  his  abuse  of  alcohol  and,  until recently, his involvement in the consumption of large amounts of cannabis.  She says that Mr McFarland’s disorders influence everything that he does.  For that reason it is very difficult to separate out their effects from that of any alcohol which he might consume.  The effect of the disorders and the alcohol are interwoven, particularly in times of stress.

[15]     I accept that the disorders from which Mr McFarland suffers need to be taken into account in this context.  The Judge considered that the present offending was driven largely by alcohol, but I agree with counsel for Mr McFarland that it is impossible to separate out the consumption of alcohol from the underlying problems. It is obvious that some form of stressful incident occurred on the evening of 16

December 2010. Although Mr McFarland’s subsequent reaction when confronted by the police officer was no doubt affected to some degree by alcohol, I have no doubt that his other problems were also an important contributing influence.   For that reason I accept that the gravity of the offending is lessened somewhat by the fact that Mr McFarland suffers from these other disorders.

[16]     Having said that, the consumption of alcohol was also an important feature. By the time of this offending Mr McFarland had already spent some considerable time seeking help for drug and alcohol problems.   It appears that he previously minimised his alcohol problems because of his belief that his consumption of alcohol was normal.  He therefore concentrated on dealing with issues relating to cannabis abuse.

[17]     Mr McFarlane ought to have been aware, however, that the consumption of alcohol was likely to lead to difficulties for him.  He had no doubt had many similar instances in the past, although these had never led to any form of criminal offending. Just as the underlying problems cannot be separated out from alcohol abuse, I take the view that the consumption of alcohol cannot entirely be divorced from the effect that the other problems may have had.  I think that his consumption of alcohol was an aggravating factor in the context of the current offending.

[18]     For  this  reason,  although  I accept  that  the  gravity of  the  offending  was lessened somewhat by the underlying disorders, I still consider that a degree of culpability must attach to Mr McFarland.  He chose to drink on this night to the point where he effectively lost control of his reactions and struck an innocent police officer who was only trying to help him.

Would the consequences of a conviction be out of all proportion to the gravity of the offending?

[19]     Mr McFarland is just 18 years of age.  He is a talented dancer, and has chosen this as his career path.  It is clear that he has significant ability in this area and this is demonstrated by the fact that he has won a number of awards.  He has also received an offer of a position at a dance academy in Melbourne.

[20]     Mr McFarland is concerned that a conviction will operate significantly to his detriment in several areas associated with his career in dancing.   First, he has a concern that it may affect any offer of sponsorship that he may otherwise receive. Second, he is concerned that it might jeopardise his chances of employment.  Third, he is worried that it will prevent him from travelling to Australia to further his career and/or to the United States.  At the very least, he believes that the existence of a conviction is likely to provide some form of hindrance in one or more of these identified areas.

[21]     As  counsel  for  Mr  McFarland  frankly  concedes,  the  concerns  that  Mr McFarland  holds  are speculative.   At  this  stage there  is  no  suggestion  that  Mr McFarland has been prejudiced in his career by the conviction that he has now received.   I do not consider that it is likely to hold him back from obtaining sponsorship or employment.   It is also unlikely, in my view, that it will have an adverse affect on any future visa application.  In any event, issues of that type are best left to immigration authorities who can ask such questions as they may consider appropriate to ascertain whether or not Mr McFarland is the type of person that should be permitted to travel abroad.  I do not think that any of the concerns that he has identified is likely to present a real problem for him in the future.

[22]     For that reason I am not prepared to say that the consequences of a conviction are out of all proportion to the gravity of Mr McFarland’s offending.

[23]     Had it been necessary to do so, I may also have had pause to reflect when considering the exercise of the residual discretion.

[24]     Mr McFarland says that he now realizes that he has a real problem with alcohol, and that he is determined to address it.  Alcohol abuse is not, however, a matter that can be readily treated.   It requires genuine commitment and persistent efforts, usually over a lengthy period.  It will be important for Mr McFarland in the future to make sure that he remains committed to dealing with this issue if he is to pursue his career in any meaningful way.   Similarly, those who deal with Mr McFarland in the future need to know that he has addressed this problem.   The presence of a conviction will serve as a signal to those with whom he deals in the future that questions need to be asked.  I consider that issues of public interest arise in this case and that the presence of the conviction is necessary to achieve this object.

[25]     Counsel for Mr McFarland also advanced a number of other submissions based on the principles and purposes of sentencing as set out in ss 7, 8 and 9 of the Sentencing Act 2002.   I agree that those issues are relevant to some extent in the present context.   I consider, however, that they were adequately reflected in the sentence that the Judge ultimately selected.   An order requiring Mr McFarland to come up for sentence if called upon to do so in the next six months effectively imposed upon him a bond for good behavior.   If he did not commit any further offences within the six month period, he would effectively be free of penalty other than the conviction.  If, however, he transgressed again, he stood to be sentenced on the charge to which he pleaded guilty.

[26]     I consider that that was an appropriate outcome in the circumstances of this case.   I do not consider that a discharge without conviction would have been appropriate.

[27]     The appeal is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

G Vear, Henderson