Northover v Police - [2020] NZHC 167

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000495

[2020] NZHC 167

BETWEEN
KOTAHITANGA KINGI NORTHOVER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 February 2020

Counsel:

DPH Jones QC for Appellant J Kang for Respondent

Judgment:

14 February 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 February 2020 at 10:30 am Registrar/Deputy Registrar

Solicitors:
Cook Morris Quinn (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

NORTHOVER v POLICE [2020] NZHC 167 [14 February 2020]

Introduction

[1] Mr Northover pleaded guilty to three representative charges of assault with a weapon and three representative charges of assault on a child. The victims were his three mokopuna, then aged 10, nine and eight years.

[2] On 5 June 2019, Judge KJ Glubb refused Mr Northover’s application to be discharged without conviction and sentenced him to four months’ community detention.1 Mr Northover has served that sentence.

[3] Mr Northover wishes to appeal Judge Glubb’s refusal to discharge him without conviction. His notice of appeal was filed on 11 November 2019, some four months after the expiry of the 20 working days appeal period.2 He applies for an extension of the appeal period.

[4] Mr Northover has filed an affidavit, sworn on 19 December 2019, in which he deposes to his whakamā associated with the convictions being so overwhelming he could not engage with the appeal process. I accept this explanation. I also find there is a genuine basis for bringing the appeal and that the interests of justice would be best served by allowing it to proceed. The Crown is silent on the issue. I extend the time allowed for filing the Notice of Appeal to the date it was filed.3

[5] Mr Northover also applies for me to receive as evidence in support of his appeal generally his affidavit of 19 December 2019 and an affidavit by his brother, Mr Don Clark. The Crown does not oppose. I will have regard to those portions of the affidavits which describe the effect of the convictions on Mr Northover and events occurring subsequent to them. I will take that as “fresh” evidence.

1      Police v Northover [2019] NZDC 10599.
2      Criminal Procedure Act 2011, s 231(2).
3      Criminal Procedure Act 2011, s 231(3).

Jurisdiction

[6] Mr Northover will succeed in his appeal if a miscarriage of justice has occurred.4 There will be a miscarriage if there has been a material error in the District Court decision.

Background

[7] The summary of facts is sparse. It states, barely, that Mr Northover’s mokopuna were staying with him along with their father as part of a shared custody arrangement with their mother. The summary goes on to say:

[Mr Northover] took on the role of disciplining the children and only he in the household was supposed to do this. [Mr Northover] had strict rules for the children, such as ensuring that they complete a number of chores and to always ask before…

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 Northover v Police

Details

AGLC: Northover v Police [2020] NZHC 167
Case: [2020] NZHC 167
Decision Date: 14 February 2020

CaseChat Overview and Summary

Kotahitanga Kingi Northover appealed against the decision of the District Court to refuse his application to be discharged without conviction. The appeal was heard by the High Court, with Mr Northover represented by DPH Jones QC and the respondent, New Zealand Police, by J Kang. The case involved Mr Northover's conviction for assaulting his three mokopuna, who were aged between eight and ten years old, with a weapon and without a weapon. Mr Northover pleaded guilty to the charges and was sentenced to four months of community detention. The legal issues in this case revolved around whether the District Court had made a material error in refusing to discharge Mr Northover without conviction and whether the consequences of a conviction were out of all proportion to the gravity of the offending. The High Court found that the District Court had indeed made a material error in its assessment of the gravity of the offending and the consequences of a conviction for Mr Northover. The Court held that the offending should be considered at a low level of seriousness due to the mitigating factors, including Mr Northover's remorse, his efforts to address the causes of his offending, and his cultural background. The Court also found that the consequences of a conviction would be out of all proportion to the gravity of the offending, considering Mr Northover's cultural background and the impact on his mana. As a result, the appeal was allowed, and Mr Northover's convictions and sentences were quashed. He was discharged without conviction.

Orders