Moore v Police
[2013] NZHC 3213
•3 December 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2013-412-000026 [2013] NZHC 3213
BETWEEN MACAYLA RENEE MOORE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 21 November 2013
Appearances: B P Kilkelly for Appellant
CER Power for Respondent
Judgment: 3 December 2013
JUDGMENT OF D GENDALL J
[1] On 12 September 2013 the appellant pleaded guilty in the District Court to a charge of assault with intent to injure. This carries a maximum penalty of three years imprisonment. The appellant had been charged with this offence conjointly with two others: Ms Hanley and Ms Law.
[2] Judge Coyle in the District Court refused an application by the appellant for a discharge without conviction pursuant to s 106 Sentencing Act 2002. The appellant was convicted and sentenced to 200 hours community work.
[3] A notice of appeal against that conviction was filed on 16 September 2013.
Background facts
[4] On 6 April 2013 the appellant assaulted the victim in Fryatt Street, Dunedin. A co-offender, Ms Hanley, punched the victim in the face first and was then dragged away. The appellant and the other co-offender, Ms Law, punched the complainant repeatedly who fell to the ground. Both then punched the victim in the face and
kicked her about the head and body. The victim curled up into a foetal type position
MOORE v NEW ZEALAND POLICE [2013] NZHC 3213 [3 December 2013]
and attempted to protect her head and face while this was occurring. The appellant and her co-offenders only stopped when an onlooker stepped in.
[5] The victim suffered bruising to her face, arm and neck and swelling to her face and head. The victim impact statement said she was in hospital for seven hours, received scratches to her neck and face, bruising to her arm and left eye, and she had pains in her head, chest, arms and back, and generally her whole body for about two weeks. She was eight weeks pregnant at the time.
[6] In the District Court when Judge Coyle refused her application for a discharge without conviction, the appellant was aged 17 years and six months. Her date of birth is 16 September 1995.
[7] In refusing the application in the District Court for a discharge without conviction Judge Coyle considered and referred to Z v R1 and the requirements set out by the Court of Appeal in that decision.
Appellant’s affidavit
[8] Prior to her sentencing, the appellant had filed an affidavit which referred to the following matters:
(a) She is a year 13 student studying at Kaikorai Valley College. At the time of the offending she was suffering from personal difficulties and had used the synthetic cannabis derivative drug “K 2” on the night of the offending.
(b)She had now signed up for counselling and got help from her family doctor for a depressive illness. In addition she had returned to school after being away from late March 2013 to the middle of May 2013.
(c) She believes a conviction would detrimentally affect her life as, in particular, she intended to undertake further studies. Any conviction
might cause difficulty for her later obtaining registration as a primary teacher which she intended to seek.
(d)The appellant was keen to advance her career as an amateur wrestler and/or coach and it could be that a conviction would affect her desire to travel overseas in the future.
(e) The appellant was prepared to undertake a substantial number of voluntary service hours.
Grounds of appeal
[9] In her notice of appeal to this Court, the appellant has set out the following grounds:
(a) That the District Court Judge was wrong in law in his application of the balancing act between the gravity of the offending, the direct and indirect consequences of conviction, and whether the consequences would be out of all proportion to the gravity of the offending.
(b)That the Judge was wrong therefore in not exercising his discretion to discharge the appellant without conviction, pursuant to s 106 of the Sentencing Act 2002.
Approach on appeal
[10] In Kumar v Police2 White J at paragraph [12] summarised the approach to be taken to an appeal against the refusal to grant a s 106 discharge as follows:
Approach on appeal
[12] The approach of this Court to an appeal of this nature has been settled by the Supreme Court in Austin Nicholls & Co v Stichting Lodestar [2008] 2 NZLR 141. The essential points to bear in mind are –
(a) It is a general appeal which requires this Court to come to its own view on the merits;
(b) The weight this Court gives to the judgment under appeal is a matter of judgment. If the High Court is of a different view from the District Court, it must act on its view;
(c) The appeal is conducted on the basis of the record of the District Court, and a de novo hearing of the evidence is not envisaged;
(d) The appellant bears an onus of satisfying the High Court that it should differ from the decision under appeal;
(e) It is only if the High Court considers that the District Court decision is wrong that it is justified in interfering with it;
(f) The High Court may or may not find the reasoning of the
District Court persuasive in its own terms;
(g) The District Court may have had a particular advantage, such as the opportunity to access the credibility of witnesses, where such assessment is important. In such a case the High Court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the District Court and that its decision should stand;
(h) But the extent of the consideration the High Court gives to the decision of the District Court is a matter for its judgment.
The law on discharge without conviction – ss 106 and 107 of the Sentencing Act
2002
[11] Sections 106 and 107 of the Sentencing Act 2002 provide for an offender to be discharged without conviction which in terms of 106(2) is deemed to be an acquittal.
[12] Section 107 provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[13] It is accepted that the decision of the Court of Appeal in Z v R is now the leading decision in relation to appeals against the discretion to grant a discharge without conviction under s 106.
[14] In another recent decision of the Court of Appeal in DC v R3 the “settled principles” to be applied on an application for a discharge without conviction were also summarised in the following way:
(a) That a sentencing Judge has a discretion to discharge without conviction a person who has pleaded guilty to an offence.
(b)However, that discretion must not be exercised unless the Judge is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.
(c) This enquiry is two-staged –
(i)The first stage – consideration of the gravity of the offence, the direct and indirect consequences of a conviction and whether those consequences are out of all proportion to the gravity of the offence – are jurisdictional tests; and
(ii)The second stage involves the application of a residual discretion which is only engaged if that jurisdiction is established.
(This is the same approach as was adopted in Z v R)
And in both these cases the Court said that all relevant aggravating and mitigating factors relating to the offending and the offender should be considered when considering the gravity of the offence. Finally, in Z v R the Court of Appeal noted that, as the Court had said earlier in R v Blythe,4 it would be a rare case where a Court would refuse to grant a discharge in circumstances where the jurisdictional test noted above was met.
[15] Section 8(g) Sentencing Act 2002 provides that the Court must impose the least restrictive sentence outcome that is appropriate in the circumstances. And,
3 DC v R [2013] NZCA 255.
4 R v Blythe [2011] NZCA 190.
s 8(h) states that the Court must take into account any particular circumstances of the offender to ensure that a sentence or other means of dealing with an offender that would otherwise be appropriate would in that particular instance not be disproportionately severe.
The gravity of the offending
[16] Here the appellant pleaded guilty to a charge of assault with intent to injure. Before me her counsel, Mr Kilkelly, accepted that the offence was a serious one involving violence. As I have noted, the victim was punched and kicked and she required medical attention.
[17] The appellant it seems has struggled to provide an explanation for her part in this offending. It appears she states it was during a time when she was experimenting to a small degree with the artificial cannabis derivative drug “K2” and that she had taken “K2” on the evening that the offending occurred.
[18] Section 9(3) Sentencing Act 2002 says however that the Court must not take into account by way of mitigation the fact that an offender was at the time of committing an offence affected by the voluntary consumption of any drug or other substance.
[19] Mr Kilkelly for the appellant, however, submits that this offending also appears to have occurred during a period of considerable personal difficulty for the appellant. Her mother had gone through the break-up of a long term relationship which it is said deeply affected the appellant. She says that she has also been deeply affected by the self inflicted death of a cousin to whom she was very close.
[20] Mr Kilkelly contends also that the appellant at the time of the offending was also struggling with health issues of both a physical and depressive nature. Since that time a combination of prescribed anti-depressants and counselling has resulted in a major improvement in her day to day presentation and demeanour.
[21] The appellant is currently a year 13 student at Kaikorai Valley College. It is suggested she has a good school record and has represented the school in sport with
distinction, gaining a Sports Blue in 2002. She was also selected as a Maori leader at the school and is a member of the Taieri Amateur Wrestling Club as both a competitor and junior coach.
[22] The appellant says in 2014 she intends to enrol with the Southern Institute of Technology in Invercargill to undertake a nannying course, following completion of which she intends to train as an early childhood educator/new entrants teacher. It is said the security checks undertaken by the College of Education for all trainee applicants might be jeopardised if the present conviction against the appellant stands.
[23] Finally, the appellant submits that the fact the sentencing Judge has defined this offence as not a one off, random, spontaneous assault, is incorrect. The incident was said to have two distinct parts but the appellant maintains that in effect it was one episode. In addition, it is contended the sentencing Judge did not give weight to the fact that the appellant was younger than the other two defendants, and that she was adamant that she only kicked the victim once and was not the offender who kicked the victim in a prolonged manner.
[24] Lastly, although Mr Kilkelly for the appellant accepted that the offence was serious, as were the actions of the appellant here, the consequences for her as an
18 year old first offender would be permanent and disproportionate. He submitted that the sentencing Judge placed too great an emphasis on premeditation here and, further, the concerns he expressed that people who have dealings with children having a violent past and then slipping through the cracks do place children at risk when working with them. Mr Kilkelly suggested here that, the background of the appellant, the one-off nature of this offence and the fact that she has since sought ongoing professional assistance with the very real difficulties she was experiencing at a pivotal period in her development, would not see her placed in a category where she could be considered an ongoing risk to children.
[25] While I accept there is some substance in these submissions advanced on behalf of the appellant, I am satisfied here that the District Court Judge was entitled to take into account premeditation which it seems was present in this case and his perceived concern that people with a violent past may place children at risk if
working with them. I am satisfied too the assessment by the learned District Court
Judge here was thorough, with all relevant factors considered as part of his analysis.
[26] In terms of the leading authority on sentencing for assault with intent to injure, Paikea v NZ Police5 I am satisfied too that the appellant’s offending here would fall into band 2 of R v Harris6 where it was said at paragraph [10] – [11]:
Band two: where the injuries are moderate, sentences of up to two years’
imprisonment can be justified...
[27] Given the appellant’s age and lack of prior convictions here, the sentencing Judge was entitled to step back from imprisonment in this case to a community based sentence which he did. But I do not accept that the present offending could fall into band one of Harris where no sentence of imprisonment is appropriate. Indeed it is possible in this case, as I see it, that the appellant could have faced an additional charge of common assault under s 196 Crimes Act 1961 for an earlier assault on the same victim that evening, referred to in the summary of facts.
[28] The offence the appellant pleaded guilty to here was a serious one involving violence including her acknowledgement that she kicked the victim although she claimed only to do this once.
[29] I am satisfied the District Court Judge gave due weight to the fact the appellant was younger than her other two co-offenders and in fact her ultimate sentence was less than theirs.
[30] The District Court Judge’s description of the events in question as “mindless thuggery”, a “serious assault” and “premeditated” is unsurprising, as I see it, given the factual background here.
[31] In my view, it was the gravity of the offending in this case which appears to have been of particular concern to the District Court Judge in his consideration as to whether the direct and indirect consequences of conviction for the appellant were out
of all proportion to that.
5 Paikea v NZ Police HC Whangarei CRI-2010-488-53, 29 October 2010, White J.
6 R v Harris [2008] NZCA 528.
Conclusion
[32] I conclude that the offending in this case was serious, the District Court Judge’s assessment of all relevant factors was thorough, and there was no wrongful or improper exercise by him of the discretion to refuse a discharge without conviction. As I see it, the appellant might still be able to pursue an appropriate career in the future and the consequences of her conviction both direct and indirect are not out of proportion to the gravity of the offending in this case. For all these reasons the decision of the District Court should stand.
[33] The appeal against conviction and to seek a discharge under s 106 Sentencing
Act 2002 is dismissed.
...................................................
D Gendall J
Solicitors:
Brian Kilkelly, Dunedin
Wilkinson Adams, Dunedin
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