N v Police HC Nelson CRI 2007 042 4709

[2008] NZHC 1236

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2007 042 4709

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 August 2008

Counsel:         A J Bamford for appellant

C P Stevenson for respondent

Judgment:      6 August 2008

REISSUED RESERVED JUDGMENT OF DOBSON J

Introduction

[1]      The appellant was convicted in the Nelson District Court on pleading guilty to one charge of common assault under s 196 of the Crimes Act 1961.  In a 4 March

2008 judgment, Judge Zohrab entered the conviction and ordered the appellant to appear  for  sentence  if  called  upon  within  12  months  pursuant  to  s 110  of  the Sentencing Act 2002.  The appellant appeals this sentence, and argues that the Judge ought to have discharged him without conviction pursuant to s 106 of the Sentencing

Act.

N V NEW ZEALAND POLICE HC NEL CRI 2007 042 4709  6 August 2008

Preliminary issues

[2]      The appeal was filed out of time, and the appellant applied for an extension of time under s 123 Summary Proceedings Act 1957.   That application was not opposed by the Crown.  There has been no prejudice as a result of the delay, and it is accordingly granted.   The appeal was commenced as one against conviction and sentence.   However, it has previously been recognised that an appeal  against  a refusal to discharge without conviction challenges the correctness of the approach to sentencing under the Sentencing Act, and is accordingly to be treated as an appeal against sentence: see C v Police HC NEL CRI 2008-442-8 27 May 2008 Miller J. The present appeal therefore proceeds as one only against sentence.

Circumstances of the offending

[3]      The appellant was 17 years old at the time of the offending in May 2007.  At about 10.30 pm on a Saturday evening, he and two associates were found consuming alcohol in the grounds of Nelson Hospital.  When approached by a hospital orderly and asked to leave, the two associates did, but the appellant did not.  After a further request from the orderly and a threat that the Police would be called, the appellant became verbally abusive and then struck the orderly in the head with a beer bottle the appellant was holding.   The orderly required three stitches and suffered mild concussion.

[4]      The appellant fled the scene, but after reading a report of the assault in a newspaper, presented himself at the Nelson Police Station and acknowledged his involvement.   The appellant has given various explanations for the offending, including that he was half asleep, affected by alcohol, that he was scared, thought he was defending himself, and that he did not realise he was holding a beer bottle.

[5]      Mr N   was initially charged with assault with a weapon, but he denied the latter aspect of the charge in that form on the basis that he was not aware that he had a bottle in his hand at the time he hit the complainant.  After the circumstances of the offending were aired at a status hearing, the Police agreed to reduce the charge

to assault under the Crimes Act, a charge to which the appellant indicated he would plead guilty.   From there, the matter was referred off for a restorative justice conference which was successfully resolved.

[6]      Once charged, the appellant was very sorry for his actions, and said he had not intended to cause any harm.   He has since engaged comprehensively in the restorative justice process, including meeting with the victim, paying the victim reparation of $1,000 plus a gift of $100 for movie and dinner vouchers, sending flowers and a note to the victim’s wife, and completing sixty hours of community work with an apparently positive attitude.   In addition, he completed research into the effects of alcohol, which he acknowledged to have been of benefit.

District Court decision

[7]      Judge Zohrab acknowledged the genuine remorse of the appellant and gave credit to him for his attempts to “put matters right”.   The Judge also noted the seriousness of the assault – an appropriate sentence would normally be community work or home detention.   He acknowledged that defence counsel submitted that a discharge without conviction would be appropriate and then applied the test in s 107 of the Sentencing Act   for such  a discharge, namely that the direct or  indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  Having weighed up the various factors, his Honour was not satisfied that a conviction would be out of proportion in the circumstances and according convicted the appellant.  He was ordered to come up for sentence if called upon within the next

12 months, with the Judge expressing confidence that Mr N   would not offend again.

Grounds of appeal

[8]      Counsel for the appellant advanced three grounds of appeal.

[9]      The first is that Judge Zohrab erred in refusing to discharge the appellant without  conviction.    Mr  Bamford  argued  that  had  the  appellant  originally  been

charged  with  common  assault  (as  opposed  to  the  more  serious  assault  with  a weapon), diversion could have been a possibility, and that this is a factor to take into account.

[10]     The main reason why the Judge is said to have erred, however, is because he was not made aware of the appellant’s future career prospects.   The appellant has indicated he may wish to join the Police force or the Army.  An assault conviction would be detrimental to the possibility of following either of these paths.  There have been cases where discharges have been awarded despite more serious assaults due to the future career prospects of the offenders, and counsel cited three cases in support. A conviction is an absolute bar to a career in the Police, and may be a discretionary factor against being accepted in the Army.

[11]     The second ground of appeal is that the Court did not adequately assess the mitigating factors in determining whether a discharge without conviction would be appropriate.   Those factors include that the appellant has no criminal history, voluntarily handed himself in to Police, entered an early guilty plea, was genuinely remorseful and the offending was not sustained.

[12]     The last ground of appeal is that the Judge did not properly take into account the restorative justice actions of the appellant.   The significant amends that the appellant has made means the offending should no longer be regarded as serious. The judgment of Simon France J in Lee v Police HC AK CRI 2005-404-028 27 July

2005 was cited for an approach tempering the seriousness of the conduct giving rise to the charge, by recognition of positive conduct thereafter.   It was submitted the balance should be tipped in favour of a discharge without conviction.

Crown submissions

[13]     For the Police, Mr Stevenson argued that the Judge properly directed himself on the test in s 107 of the Sentencing Act, and considered all the relevant factors. The decision to decline to grant a discharge without conviction cannot be categorised as “plainly wrong” and must therefore be accepted.   The Police acknowledge that such a conviction would act as a bar to a career with the Police, and may hamper

prospects with the Army, but note that there is a public interest in allowing such convictions to be on the public record.

Approach to such appeals

[14]     The approach required is conveniently summarised in Ward v Police HC WN CRI-2004-485-121 11 November 2004 Gendall J:

[10]      An Appellate Court is not free to exercise its own discretion merely by way of substitution of a discretion exercised by the sentencing Judge simply because the Appellate Court itself may have exercised that discretion differently; Halligan v Police [1955] NZLR 1185, 1188. Of course, if a sentencing Court has not given adequate reasons for its decision then intervention on appeal might more readily occur. The discretion is unfettered and each case must be considered on its own merits after enquiring into all the relevant circumstances. The Court has to pay proper regard to the nature of the offending, the gravity with which it is viewed by Parliament, the seriousness of the particular offences and the circumstances of the offender and consequences of a conviction; Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA). The statutory consideration that the consequences of conviction are out of all proportion to the gravity of the offence is the overriding consideration and the words “out of all proportion” point to an extreme situation which speaks for itself (Police v Roberts [1991]

1 NZLR 205, 210).

And later, at paragraph [15]:

[…]      Some Judges may have acceded to counsel's submission and granted a discharge.  Equally, some may not have.  It is not possible for this Court in its appellate jurisdiction to substitute its discretion for that of a sentencing Judge.  It was reasonably open for him to arrive at the conclusion that he did and he provided sufficient reasons for his conclusions.

[15]     So, was the conclusion reasonably open to the Judge, and are there sufficient reasons for that conclusion?

[16]     I am satisfied that the Judge’s approach to the test under s 107 was correct:

Firstly,  I have  to  identify  the  gravity  of  the  offending  and  refer  to  the particular facts.  I also need to consider factors such as your guilty plea, your expression of remorse, the assessment of how likely it is that you will re- offend, the victim’s perspective and the consequences that you have already suffered.  I then need to enquire as to the direct and indirect consequences of the conviction would be.

[17]     On the first ground, that the Judge did not properly evaluate the potential adverse consequences for the appellant’s future career, the prospects of joining the Police force or the Army were not specified to the Judge.  He can hardly be criticised for not knowing of such aspirations and Mr Bamford accepted that it was not an “error” in the conventional sense.

[18]     A degree of cynicism is needed in testing quite how important the prospect of a career, falling among a minority that would be absolutely barred to a young person on account of a conviction for assault, really is when raised for the first time after all the steps that occurred here, up to and including his conviction and sentencing.  The matter is only evidenced in Mr N  ’s affidavit sworn in support of the appeal on

15 July 2008.  There, it was put in the following terms:

I am still young and haven’t made any final decision on a career in a long term sense.  I was thinking of undertaking an engineering course at the local Tech, but I also have in mind the possibility of joining the Army or the Police Force.  A conviction for assault will have a negative impact on either of those careers and I have been advised it will significantly delay any possible options I have in either of those careers.  I do not believe that my lawyer was aware of my intentions in relation to the Police Force when he made submissions to the Judge at the time of sentencing on 4 March 2008.

[19]     The prospect of seeking to join the Police Force is not put any more highly than “a possibility”.

[20]     No exception was taken on behalf of the Police to the admission of this new evidence, which also addressed circumstances claimed by Mr N   to have affected the reaction he gave to the orderly when the altercation occurred.

[21]     Mr Stevenson made the point that even if a discharge was granted under s 107, then that would be known to the Police and although not an absolute bar as a conviction would be, it nonetheless is a factor that would weigh against his application to join.  Mr Stevenson reasoned that the Police would not be likely to positively respond to an application from Mr N  , given a discharge in relation to an assault such as the present, until he had demonstrated a consistent ability to keep out of trouble.  So, in practical terms, the conduct is likely to preclude a career in the Police force for some time, even if it is ultimately resolved on the basis of a discharge.

[22]     Mr Bamford’s point was that the conviction entirely “shuts the door” to a career in the Police Force, whereas a discharge would not do so.  It does make a real difference in respect of a possible career in the Police Force, but that is only one of the hopefully wide array of alternatives open to this young man, particularly if he pursues them with the positive approach apparently revealed in addressing the consequences of his offending.

[23]     In a more general sense, the Judge did acknowledge that a conviction would impede the appellant’s future, and he clearly had regard to that.  If it is appropriate to have  regard  to  the  exclusion  from  a  possible  career  in  the  Police  (and,  less absolutely, a prospect of being prevented from joining the Army) then that would make  a  material  difference  to  the  evaluation  of  disproportionality  between  the gravity of offending and consequences of a conviction.

[24]     The second ground of appeal is that the Judge did not give adequate weight to a range of mitigating circumstances in determining the seriousness of the offending. These included:

•    The appellant is a first-time offender;

•   He handed himself in to the Police – further reference was made to the decision of Simon France J in Lee, as an appeal in which the offender confessed when his offending might never have come to the attention of the authorities and that was the factor that tipped the scales in favour of a discharge without conviction;

•    The guilty plea having been entered at the first appropriate opportunity;

•    Successful participation in restorative justice process;

•    Genuine remorse;

•   This was not a sustained attack, and partly explained by the “particular sensitivities” of the appellant and the fact that he had “misinterpreted the situation”.

[25]     At least some aspect of all of these factors were referred to in the review of the factual background, but it is difficult to ascertain the influence a number of them had in the analysis that dictated the outcome.

[26]     The fact of a guilty plea was recognised, but it might be said that there is a lack  of  explicit  recognition  about  how  early  it  was.    Similarly,  the  appellant’s remorse and the success of participation in the restorative justice process have been taken into account by the Judge, whereas the appellant would argue that more should be made of the genuineness of his remorse, and the exceptional commitment made to the restorative justice process.  However, those are matters of degree, and certainly on their own the relative weight given to them should be treated as factors within the sentencing Judge’s discretion.

[27]     The most potent point on this ground of the appeal is the Judge’s failure to temper the relative seriousness he attributed to the offending by having regard to the exceptional steps taken thereafter to recognise the impact of his offending on the complainant, and to make amends.  That was the approach taken in Lee, so that the gravity of the offending is not simply a reflection of the nature of Mr N  ’s assault on the complainant, but tempering that conduct by subsequent steps to ameliorate the harm done.

[28]     I treat that as a more positive point on the appeal, than Mr Bamford’s other argument about the relative seriousness of the offending itself: I do not consider the relative seriousness of this assault should be downgraded to any significant extent by Mr N  ’s claim that he was not aware he had a bottle in his hand at the time, and nor does it make a major difference that, on reconstruction, Mr N   considers he was probably “spooked” by the impact of a couple of recent threats against his own personal safety.

[29]     The other analogy with Lee that helps the appellant is the credit to be given for his voluntarily identifying himself to the Police.  In Lee, the Judge on appeal was satisfied that the appellant would otherwise not have been apprehended.  Although the prospects of apprehension in Mr N  ’s case may have been somewhat higher, he is still entitled to substantial credit for that, having done the responsible thing in going to the Police, when there must at least have been the tempting prospect that he would not otherwise be apprehended.

[30]     The third ground amounts to a refinement to enable a closer focus to be given to the steps the appellant took through the restorative justice process.   Inarguably, those are impressive and on the approach in Lee would justify the sentencing Judge substantially discounting what would otherwise be the consequences of a conviction that reflected only the seriousness of the offending itself.  Here, the learned Judge did explicitly recognise that the appellant was entitled to credit for responding well since the offending.  As the third ground was argued, and particularly in light of the reclassification of the seriousness of the offending by reference to subsequent conduct, there is merit in the point that inadequate weight was given to the post- offence conduct in evaluating whether a conviction was out of all proportion to the gravity of the “offence”, assessing that in this wider sense.

[31]     Having categorised the post-offending conduct in this different way, I come back to the difficult issue of whether this appellant should be able to argue that the disadvantageous consequences of a conviction are greater than perceived by the sentencing Judge, because of his possible career options that were not conveyed to the Judge.   Again, that was precisely the situation in Lee, where subsequent impediments to the appellant’s potential career options in Korea were not conveyed to the sentencing Judge, but nonetheless taken into account on appeal.  The Court is entitled to thoroughly test the genuineness of such claims, the more so the later in the whole process such aspirations are raised.

[32]     In this case, I am prepared to take the relevant aspiration of a possible career in the Police into account for two reasons.  First, because the exceptional steps taken to  acknowledge  the  consequences  of his  offending  and  to  make  amends  to  the complainant.   That demonstrates what can only be genuine contrition entitling the

appellant to an assumption that he brings an equally genuine approach to all aspects of the matter.  Secondly, Mr N   has not exaggerated his claim to a career in the Police.   His affidavit is in measured terms, and Mr Bamford was careful not to overstate this factor.  If it was a notion invented to bolster the argument on appeal, then it might well have been claimed in more definitive terms.

[33]     Accordingly, given that the gravity of the assault can be downgraded by reference to the post-offending conduct, and given also the sharper focus on adverse consequences flowing from a conviction, I am satisfied that the decision not to grant a discharge under s 106 was wrong, and the appeal accordingly succeeds.

Reissue

[34]     Against some pressure of time to complete this judgment before leaving Nelson, it was originally delivered on 5 August 2008 with two errors in the final paragraphs.  Those have helpfully been identified, successively, by counsel for the appellant and then for the Police.   This reissued judgment omits an unintended reference to “conviction and discharge”, and amends the section reference  from s 107 to s 106.

[35]     The appellant is to be discharged without conviction under s 106.

Dobson J

Solicitors:

Bamford Law, Nelson for appellant

Crown Solicitor, Tasman for respondent