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…

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.

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Details

Case: [2017] NZHC 3130
Decision Date: 12 December 2017

CaseChat Overview and Summary

Shyanne Mizsey appeals against her sentence for assault with intent to injure and assault with a weapon, imposed by Judge C J McGuire. The sentence imposed was 12 months’ supervision and 150 hours’ community work. The appeal grounds are that the procedure was unfair due to the Judge’s refusal to grant an adjournment to enable Ms Mizsey to provide evidence in support of a discharge without conviction application, and that the Judge did not properly consider the application, as he failed to consider the consequences of a conviction.

The Court held that the Judge was not obliged to grant the requested adjournment and that it was a matter for his discretion. The Court was not persuaded that the Judge erred in the exercise of his discretion. Ms Mizsey was granted a period of one month to file the documents, but failed to do so. Further, no explanation was offered for the failure to file the relevant information. The Court held that 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. As for the second ground of appeal, the Court held that 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.

The appeal is dismissed.

Orders