Modise v Police - [2018] NZHC 2737

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000241

[2018] NZHC 2737

BETWEEN
MOSES PRETE THABANG MODISE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 October 2018

Counsel:

HJ Croucher and AJ Ewing for Appellant LM Deane for Respondent

Judgment:

23 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 23 October 2018 at 3 pm.

Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Auckland. Crown Solicitor, Auckland.

MODISE v POLICE [2018] NZHC 2737 [23 October 2018]

The appeal

[1] Mr Moses Modise is a reintegration officer with Serco New Zealand Ltd.1 On 16 July 2017, he committed an offence contrary to the Telecommunications Act 2001.2 Mr Modise repeatedly rang his partner, and verbally abused her. Judge A M Manuel’s sentencing remarks succinctly capture what happened:3

You ... called the victim’s friend a “motherfucker” and a “bitch”. You continued to call her, using obscene language, before she arrived home. She decided to report the abuse to the Manukau Police Station. While she was in an interview room at the station with a police officer, you made more than 40 calls and left 15 messages on her phone using language such as “fucker”, “motherfucker” or “fuck you, motherfucker” in relation to the victim.

In a victim impact statement made in July 2017, the victim said she was scared of you and tired of the way you treated her. She wanted you to go to some kind of anger management course to try to help yourself. She said she had tried to end your relationship but she was scared and needed help herself.

[2] The Judge dismissed Mr Modise’s application for a discharge without conviction. Mr Modise appeals. He contends the Judge erred.

Law

[3] The relevant provisions are ss 106 and 107 of the Sentencing Act 2002. These provide:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal.

(3) A court discharging an offender under this section may—

(a)make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

1      More easily, Serco.
2      Offensive or disturbing use of a telephone, s 112(1).
3      Police v Modise [2018] NZDC 14907 at [2]–[3].

(i)loss of, or damage to, property; or

(ii)emotional harm; or

(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction. (3A) Sections 32 to 38A apply, with any necessary modifications, to an order
under subsection…

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 Modise v Police

Details

AGLC: Modise v Police [2018] NZHC 2737
Case: [2018] NZHC 2737
Decision Date: 23 October 2018

CaseChat Overview and Summary

Moses Modise, a reintegration officer with Serco New Zealand Ltd, appeals against the dismissal of his application for a discharge without conviction, following his conviction for an offence under the Telecommunications Act 2001. Mr Modise had made numerous harassing phone calls to his partner, using obscene language. The primary legal issue before the Court is whether the District Court Judge erred in dismissing Mr Modise's application for a discharge without conviction, as per sections 106 and 107 of the Sentencing Act 2002.

The Court found that the offending, while moderately serious due to its harassing nature and the relationship between the offender and the victim, did not warrant a discharge without conviction. The Court found that the Judge did not err in assessing the gravity of the offence or the consequences of a conviction. The Court held that the fact of conviction is not necessarily fatal to Mr Modise's employment, as his employer, Serco, is already aware of his criminal conduct. Moreover, any potential employment consequences, including career progression, would not be out of all proportion to the gravity of the offence. The Court also considered the applicability of the Criminal Records (Clean Slate) Act 2004, which does not provide for suppression of name in this context.

The appeal is dismissed.

Orders