Mizsey v Police

[2017] NZHC 3130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-333

[2017] NZHC 3130

BETWEEN

SHYANNE MIZSEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 December 2017
Counsel:	G Harvey for appellant L Radich for respondent
Judgment:	12 December 2017

ORAL JUDGMENT OF KATZ J

Solicitors:      Mason Treloar Harvey Lawyers, Auckland

Kayes Fletcher Walker, Crown Solicitor, Manukau

MIZSEY v NEW ZEALAND POLICE [2017] NZHC 3130 [12 December 2017]

Introduction

[1]                  Shyanne Mizsey pleaded guilty to charges of assault with intent to injure and assault with a weapon and was sentenced by Judge C J McGuire to 12 months’ supervision and 150 hours’ community work.1 Ms Mizsey now appeals her sentence on the grounds that:

(a)the procedure undertaken was unfair because the Judge declined to grant her request for an adjournment to enable her to provide evidence in support of an application for a discharge without conviction; and

(b)the Judge did not properly consider her application for a discharge without conviction pursuant to s 11 of the Sentencing Act 2002, because he only took into account the gravity of the offending and not the consequences of a conviction.

Facts

[2]Judge McGuire summarised the offending as follows:

[1]        … The victim here was, as I understand it, your former best friend. Alcohol played a massive part in this. You probably were both very drunk. You managed to get angry and assault your friend. She headed inside to escape, you followed. She went out the rear. You approached her, punched her on the left side of the head causing her to fall to the ground. You continued punching her about the face while she was on the ground multiple times. She had her arms up over her head to protect herself.

[2]        She managed to get inside to call the police, but as her phone was failing she had to come outside again to maintain contact. You started abusing her again. She left the garage where she was. You picked up a cup, came up behind her and you hit her with the cup on the side of the head above the eye. As a result of the assaults she suffered a chipped tooth, bruising and swelling to her face and a small cut to the right hand side of the face. …

Was the Judge wrong to refuse Ms Mizsey’s request for an adjournment?

[3]        The power to adjourn proceedings is contained in s 167 of the Criminal Procedure Act 2011, which provides that any proceeding may from time to time be adjourned by a judicial officer to a time and place then appointed.

1      Police v Mizsey [2017] NZDC 24133.

[4]As Mr Radich submitted, the power to adjourn a proceeding is discretionary.

The Court of Appeal in Mohammed v R stated that:2

[18] This Court will not lightly disturb a decision not to adjourn a trial,  taken in the exercise of the available discretion. It will not interfere unless the Judge has made an error in principle, considered irrelevant matters, failed to consider relevant matters, or was plainly wrong.

(Footnote omitted)

[5]Similarly, in Gray v Thom Penlington J explained that:3

… an appellate Court will be slow to interfere with the exercise of a discretion in relation to an adjournment. An adjournment will only be granted for good reason. The ultimate issue is the need to do justice between the parties; that is both parties. The question can be simply stated: is an adjournment expedient in the interests of justice?

[6]        Mr Harvey accepted that, as a general principle, the Court will not lightly disturb a decision not to grant an adjournment. He submitted, however, that in Mohammed the particular concern of the Court was that Mr Mohammed was seeking to deliberately game the system by seeking an adjournment. Mr Harvey submitted that the present facts are far removed from such a scenario.

[7]        Ms Mizsey first appeared on the charges on 9 May 2017. She was remanded without plea. On her second appearance, on 1 June 2017, she entered not guilty pleas to both charges. However, at the case review hearing on 13 July 2017, Ms Mizsey changed her pleas and entered guilty pleas to both charges. Mr Harvey indicated to the Court that a discharge without conviction would be sought at sentencing. The Judge directed that any documents in support of the foreshadowed discharge application be filed by 14 August 2017 (a month later). Any documents in opposition were to be filed by 28 August 2017.

[8]        Ms Mizsey did not file the required documents by 14 August 2017. Rather, Mr Harvey filed a memorandum on that date in which he informed the Court that, regrettably, “no further instructions as to the application have been provided to Counsel”. He indicated that, prior to guilty pleas being entered, Ms Mizsey had raised

2      Mohammed v R [2016] NZCA 254.

3      Gray v Thom (1997) 10 PRNZ 373 (HC) at 377.

a number of matters that could be submitted as grounds for an application for a discharge without conviction. The relevant information, however, would need to be provided in affidavit form. Mr Harvey’s memorandum concluded by stating:

Unfortunately, due to the lack of further instruction, the necessary documents have not been prepared, and as such, the application cannot be filed within the timetabled schedule.

Counsel will endeavour to obtain the necessary instructions and documentation from the applicant, and will file the application as soon as possible if this occurs.

[9]        Obviously, however, Mr Harvey’s attempts to obtain the necessary instructions were unsuccessful as, by the time of sentencing (three weeks later) the required documents had still not been filed. Nor did Ms Mizsey provide the Court with any explanation for the delay (for a period of over seven weeks) in providing her counsel with the necessary instructions.

[10]      Ultimately the Judge declined to grant an adjournment. He expressed his reasons for that decision as follows:

Look briefly my reasons are these: this was a serious assault, it was in two parts, she had the opportunity to reflect on what she had done and to not do anything further and when the victim appeared next she belted her over her head with a cup and chipped a tooth. At the relevant time the other matter was before the Court in Auckland, the section 106 application had not been resolved in her favour at that stage but I think it’s fair to assume that she knew that that was what she was wanting to do, to be discharged without a conviction on the drugs charge, so when this offending came around it’s fair to conclude that she had some understanding of Court processes and what an issue related to section 106 was all about. Ultimately, I don’t think this has any chance of success given the seriousness of the assault and the fact that it was in two parts and it’s against a backdrop of her at the relevant time of this assault being in a position where she faced a charge in another Court for which she was seeking a section 106 discharge.

[11]      I note that by the time of sentencing the s 106 discharge application on the other charge that was before the Court had apparently been granted.

[12]      It is common ground that the Judge was not obliged to grant the requested adjournment. Rather, it was a matter for his discretion. I have not been persuaded that the Judge erred in the exercise of his discretion.

[13]      First, I note that Ms Mizsey would presumably have been aware of the process and requirements for obtaining a discharge without conviction, given that she had very recently successfully obtained such a discharge in respect of another charge she was facing. Yet she failed to engage in the necessary process, and provide the required instructions to her counsel.

[14]      Ms Mizsey was initially granted a period of one month to file the documents. She failed to do so. Even at that late stage, Ms Mizsey could have taken steps to file the required documents. I have no doubt that, had she done so, the Judge would have been willing to consider them. No effort at all was made, however, to provide the necessary information during the further period of three weeks that elapsed between the 14 August deadline and the sentencing date. Further, and significantly, no explanation was offered to explain Ms Mizsey’s inaction. The Judge’s observation that Ms Mizsey had had an opportunity to put the necessary information before the Court, but that she had “squandered it”, was apt in the circumstances.

[15]      Even on appeal, no explanation has been offered for the failure to file the relevant information. Nor was leave sought to file any evidence to establish that Ms Mizsey did indeed have good grounds for seeking a discharge, and that a miscarriage of justice has therefore occurred.

[16]      In conclusion, there was no error in the Judge’s decision not to grant an adjournment. The Judge was entitled to take into account that no documents had been filed in the proceeding for seven weeks or so, that no explanation was provided for that failure, and that the prospects of an application for discharge succeeding appeared to be low.

Did the Judge err by not properly considering the application for discharge without conviction?

[17]      Mr Harvey’s second ground of appeal was that the Judge erred by not properly considering a discharge without conviction pursuant to s 11 of the Sentencing Act. In particular, the Judge is said to have considered only the gravity of the offending and not the consequences of a conviction, nor whether the consequences of a conviction

outweighed the gravity of offending. This ground of appeal appears to overlap significantly with the first ground.

[18]      I have already held that the Judge did not err in exercising his discretion not to grant an adjournment. It necessarily follows that, when considering the appropriateness of a discharge without conviction, the Judge was only able to consider the material that was before him.

[19]      It is apparent from the transcript of the discussion that took place between  the Judge and counsel that the Judge did turn his mind to the availability of a discharge without conviction. In the absence of any evidence from Ms Mizsey as to the consequences of a conviction, however, the application was doomed to failure  (as Mr Harvey appeared to acknowledge in both the District Court and this court).

[20]      I accept Mr Radich’s submission that there is nothing to suggest that a miscarriage of justice has occurred. The offending was plainly serious enough to require that very significant consequences of conviction be established in order to launch a credible argument for discharge. The offending, as I have already noted, involved Ms Mizsey punching the victim in the head and knocking her to the ground. She then continued to punch the victim multiple times to the face while she was on the ground, chipping one of the victim’s teeth in the process. A short time later, Ms Mizsey hit the victim in the head with a cup.

[21]      Although no evidence as to the consequences of a conviction were put before the District Court, Mr Harvey does appear to have identified in his submissions to Judge McGuire two potential consequences of a conviction, based on his discussions with Ms Mizsey, namely that:

(a)Ms Mizsey, who currently works as a cleaner, hopes in the future to “become involved with children doing youth programmes and the like”. Her prospects of doing such work might be impacted by a conviction.

(b)There is a real risk that she will be liable for deportation by virtue of being a New Zealand resident only, rather than a citizen.

[22]      The consequences of a conviction on an offender’s future employment or employment prospects is relevant,  but  only  carries  significant  weight  where  those consequences are out of all proportion to the gravity of the offending. The risk must be “real and appreciable”.4  The  employment  consequences  referred  to  by Mr Harvey, however, appear to be somewhat vague and speculative, rather than real and appreciable. In any event, given the violent nature of the offending, it would appear to be not unreasonable (and therefore not disproportionate) that Ms Mizsey’s offending be disclosed to a prospective employer if she wishes to work with children. After seven years, if she has not reoffended, the slate is likely to be wiped clean, however, pursuant to the Criminal Records (Clean Slate) Act 2004.

[23]      As for the second possible consequence, Mr Radich submitted that even a fairly cursory review of the legislation suggests that deportation is not a real risk. Ms Mizsey’s mother is apparently a New Zealand citizen and on that basis Ms Mizsey would accordingly be eligible for citizenship by descent pursuant to s 7 of the Citizenship Act 1977. In any event, it is clear from the case law that courts should be slow to usurp the functions of Immigration New Zealand, which is best placed to assess issues surrounding deportation.5

[24]      Overall, there is nothing to suggest that the Judge has failed to properly consider the issue of a discharge in terms of s 11 of the Act, or that the failure to grant an adjournment has resulted in a miscarriage of justice.

4      Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20], citing Iosefa v Police HC Christchurch CIV-2004-404-64, 21 April 2005 at [34]; and Adamson v Police [2015] NZHC 2031 at [28].

5      Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; A (CA747/10) v R [2011] NZCA 328 at [30]; Ho v R [2016] NZCA 229 at [15]; and R v Foox [2000] 1 NZLR 641 (CA) at [39].

Result

[25]For the reasons outlined, the appeal is dismissed.

Katz J