O v Police HC Christchurch CRI 2005-409-130

[2005] NZHC 7

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2005-409-000130

O

v

POLICE

Hearing:         1 September 2005

Appearances: J McCarthy and M B Chilton for Appellant

T J Gilbert for Police

Judgment:      1 September 2005

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of the District Court Judge on 27 May to discharge the appellant without conviction.   The appellant was convicted that day after  a  defended  hearing  of  being  found  without  reasonable  excuse  on  the neighbour’s premises.     The circumstances of the offence in brief were that the appellant was intoxicated, was found in the doorway or in the lounge by the neighbours and that he did not leave forthwith on being asked to do so.   The day after that event Mr O   wrote a frank letter of apology which was delivered by his wife and included twice saying that he was not making excuses for himself and his behaviour and recorded that he was seeking medical help for his problem.  His

problem is he suffers from alcoholism which is an illness.

O V POLICE  HC CHCH CRI 2005-409-000130  1 September 2005

[2]      The argument on appeal has to be put in the setting where the appeal Judge is reviewing the exercise of a discretion of the sentencing Judge in the District Court as to whether or not to discharge an offender without conviction.

[3]      The District Court Judge is not applying a rule.  The District Court Judge is taking into account numerous factors and exercising a judgment.

[4]      There are numerous cases which emphasise that in these circumstances the appeal Court should be loath to disturb the exercise of discretion of the District Court Judge unless either the appellant can show an error of fact or legal principle in the analysis or that the decision is manifestly wrong.

[5]      Mr McCarthy endeavoured to show a number of errors in the analysis of the learned District Court Judge.  Starting with the matter I have already referred to, the question of contrition and apology, Mr McCarthy did make some ground I think. The  sentencing  remarks  of  the  Judge  appear  to  have  immediately followed  the conviction and the Judge seems to have been giving weight to the fact that Mr O   had pleaded not guilty and tried to avoid any conviction on the offence as reflecting a lack of remorse and a lack of acceptance of responsibility for the offending.

[6]     At least from this distance it is easy enough to understand the human predicament that Mr O   was in as he is an American citizen. He is not a New Zealand citizen and he fears that as a consequence of a conviction on this offence he may be deported from New Zealand.  He is married to a New Zealander.

[7]      The other aspect as to the lack of contrition is that the District Court Judge appears  to  have  speculated  behind  a  remark  made  by  one  of  the  neighbours, Mr Davey, in his victim impact statement, about an approach that was made to his wife by the wife of the appellant.  I have been given a chronology which explains that there were two meetings by Mrs O   to Mrs Davey.  The first was the day after the event when she took a letter of apology over.  That is the letter of apology I have just referred to.  The learned Judge was clearly not referring to that event.  That was an entirely appropriate thing for Mrs O   to do.  The learned Judge seems to

have assumed that the reference by Mr Davey to the wife calling is the case of delivery back of the dog.  This was a second event where Mr and Mrs O   lost their dog and it was found by Mrs Davey.  Mrs Davey telephoned Mrs O   and she went to the Daveys in order to pick up the dog.  It is not clear from Mr Davey’s victim impact statement whether he is referring to the first or second incident.

[8]      I am not satisfied that there was an evidential basis for the Judge to conclude that Mrs Davey was, on that second occasion, in his words, taxed with the fact that they had made a complaint and an attempt was made to make Mrs Davey feel bad about it.

[9]      However, I am not satisfied that the deficiencies I have discussed as to the way in which the Judge addressed the question of contrition are of sufficient moment to justify setting aside his exercise of discretion.

[10]     The case for a discharge for conviction here has always depended on the potential  indirect  effects  of  a  conviction  on  the  attitude  of  the  Immigration Authorities as to whether or not they might take steps to deport Mr O  .  In that respect the sentencing Judge in paragraphs [9] – [11] of his judgment analysed the case in this way:

[9]       I have been given a facsimile letter from an immigration officer who makes the equivocal statement is that Mr O   may get deported.  I have had very lengthy submissions to suggest that the consequence is likely to be deportation, loss of job and loss of marriage.

[10]      Mr O   might be familiar with the American expression of “over egging the cake”.  This application for discharge without conviction is a case of over egging the cake.  Even if Mr O   had been discharged on the last occasion the nature of this offending, the fact that it is being repeated and the knowledge of the likely consequences of it all point, in my view, against the grant  of  a  discharge  without  conviction.    The  attempt  to  embarrass  the victims or even to make the court feel responsible for the consequences of Mr O  ’s behaviour  simply are an  example  of Mr  O   not fully grasping or accepting responsibility for his own position.

[11]     I  suspect  that  properly  argued  and  with  some  evidence  that something was being done about the underlying problem the appropriate authorities would see this case as it – a man with an illness who had too much to drink on that occasion and has embarrassed himself in an extreme way because that is what this case is all about.  But he was responsible for that and in the circumstances I decline the application to discharge without conviction.

[11]     It  appears  to  me  that  this  is  an  appropriate  application  of  s  107  of  the

Sentencing Act 2002:

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.

[12]      The Judge has had regard to the indirect consequences of the conviction.  He has formed the opinion that properly argued the Immigration Authorities will frame the case as:

… a man with an illness who had too much to drink on the occasion and has embarrassed himself in an extreme way …

[13]   It is always a delicate issue for a Court to discuss potential indirect consequences because Parliament has given to the Executive Government decisions on deportation and certain rights of review and it is not the role of sentencing Judges to decide those issues.  I see no reason at all to criticise or in any way depart from the analysis of the District Court Judge that I have just referred to, and that said the consequence, applying s 107, is that the Judge had no choice but to carry on as a consequence of the conviction and impose a penalty, because he could not have been satisfied on that analysis that a conviction would be out of all proportion to the gravity of the offence.

[14]     The Judge then proceeded and imposed a relatively modest fine.

[15]     Mr  McCarthy  criticised  some  other  aspects  of  the  Judge’s  reasoning; particularly that he may not have fully appreciated the reasons why there was a failure to obtain a diversion in respect of an event that took place on Brighton Pier. But I am satisfied the Judge did take those into account adequately.  He elected to proceed as if those convictions did not exist and as if the appellant had been diverted. That effectively accepts what Mr McCarthy was saying, that had that diversion been conducted  in  the  usual  way  with  notice  of  what  the  allegations  were  then  the outcome might have been quite different for Mr O   was really saying in his statement he could not recall exactly what took place.

[16]     For all these reasons I have not been persuaded that there is any basis for this Court to set aside the judgment of the District Court and to revisit the matter and exercise the discretion afresh.   The fundamental problem Mr O   has is his illness and that is the reason for the trouble you are getting yourself into, Mr O  , as I am sure you are aware.

[17]     The appeal is dismissed.

Fogarty J

Solicitors:

Jonathon McCarthy, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent