October v Police

[2023] NZHC 326

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000420

[2023] NZHC 326

BETWEEN

HAL WAYNE OCTOBER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 February 2023
Appearances:	A H Waalkens KC and S Courtney for Appellant W Fotherby and J Gibson for Respondent
Judgment:	28 February 2023

JUDGMENT OF VENNING J

Appeal against conviction and sentence

This judgment was delivered by me on 28 February 2023 at 11.45 am.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Sandi Anderson & Partners, Auckland Counsel:  A H Waalkens KC, Auckland

OCTOBER v NZ POLICE [2023] NZHC 326 [28 February 2023]

[1]    Hal October admitted assaulting a protestor at a pontoon at the Kennedy Point Boatharbour Limited’s construction site. In a reserved decision delivered on 19 October 2022 Judge J M Jelaš provided reasons for declining his application for a discharge under s 106 of the Sentencing Act 2002.1

[2]Mr October appeals to this Court against that decision.

Background

[3]    I take the background from the summary of facts, although as discussed below, the summary of facts is clarified in part by a video record of the incident. Mr October was the leader of an on-site team of security consultants employed by Kennedy Point Boatharbour Limited to monitor and protect the construction zone. At about 11.39 am on Wednesday, 7 July 2021, a confrontation between the security guards and protesters broke out when several protestors climbed onto a pontoon within the construction zone. The pontoon was surrounding the drill pipes. The victim, Michael Benzur, was one of the protestors. Mr Benzur approached Mr October. They took a brief hold of each other in a short scuffle, swinging each other around. Mr Benzur then fell off the pontoon into the water. As Mr Benzur tried to climb onto the pontoon again Mr October stepped forward and, using his right leg, kicked Mr Benzur to the right side of his head. The kick struck Mr Benzur’s cheek and neck causing him to fall backwards into the water. He then steadied himself on the pontoon and gestured to Mr October to do it again before climbing back onto the pontoon at which point he was placed in a head lock by Mr October. As a result of the kick, Mr Benzur sustained a sore neck. He also says he has suffered from anxiety.

District Court decision

[4]    In dismissing Mr October’s application for a discharge without conviction the Judge referred to the principles to apply.2 She then first addressed the gravity of the assault. After noting the summary of facts the Judge recorded that Mr Benzur had addressed the Court as to the impact of the assault on him. She then referred to Mr

1      New Zealand Police v October [2022] NZDC 20516. Counsel advise the Judge subsequently fined Mr October $800 and ordered him to pay reparation of $200 for damage to the victim’s wetsuit and $200 for emotional harm.

2 At [6].

October’s personal circumstances, and the references provided in his support. She noted that Mr October had said he was ashamed and embarrassed by the situation he found himself in, and had subsequently completed both a conflict management course and a six week anger and rage programme. He had also undertaken a tele-health consultation with a clinical neuropsychologist. However, having reviewed the video footage of the incident the Judge concluded that the kick was deliberate and at the least it disclosed a high degree of recklessness. She rejected any suggestion that Mr October had not appreciated his boot had connected with the victim. The Judge also rejected submissions for Mr October that the victim had been obviously aggressive towards Mr October beyond his presence on the pontoon.

[5]    Ultimately the Judge accepted the Police submission as to the gravity of the offending. The Judge noted:3

The speed of the kick combined with Mr October’s standing position on the pontoon and the victim being in the water, made it impossible for the victim to take any evasive action to protect himself. The victim was therefore in a vulnerable, non-threatening position at the time of the assault. Fortunately, the victim’s physical injuries were minor – he was readily able to continue with his protests after the assault.

[6]    The Judge concluded the offending was of moderate seriousness. While acknowledging Mr October’s plea of guilty, and the steps he had taken afterwards, she considered they carried less weight as this was Mr October’s fifth conviction for assault.

[7]The Judge then addressed the consequences of conviction.

[8]    At the age of 63, Mr October had pointed to two consequences. First, a conviction would jeopardise his licence and certification under the Private Security Personnel and Private Investigators Act 2010 (PSPPIA). Second, convictions would inhibit his ability to travel overseas. The Judge accepted there was a real and appreciable risk that a conviction may well raise issues for Mr October’s ability to travel and that his ability to continue working in the security industry would come under scrutiny. However, she was not prepared to accept the evidence of Mr Morrison,

3 At [26].

the CEO of New Zealand Security Association (NZSA) that revocation of Mr October’s licence was the likely outcome of a conviction. She considered the regulatory body was the appropriate body to consider that issue.

[9]    Standing back and looking at the matter overall the Judge did not consider the prospect of Mr October having his licence reviewed or the travel restrictions he would face were consequences disproportionate to the gravity of the offence. She noted Mr October would have experienced travel restrictions in the past given his previous convictions. While accepting his livelihood might ultimately be placed in jeopardy, that would be a result of the regulatory body’s decision.

[10]   For those reasons she declined the application for discharge without conviction.

Appeal points

[11]   In support of the appeal Mr Waalkens KC submitted the refusal was wrong in both fact and law. Mr Waalkens submitted that the District Court Judge overstated the gravity of the offending by:

(a)mischaracterising the offending to be more serious than it was;

(b)minimising the mitigating factors; and

(c)overstating the impact on the victim and understating his role in the altercation.

[12]   Mr Waalkens characterised the offending as low level offending rather than being of moderate seriousness. He submitted that, having overstated the gravity of offending, the District Court Judge subsequently erred in her assessment of whether the consequences of conviction would have been out of all proportion to the offending. Mr Waalkens submitted the Judge was wrong to consider that a discharge would usurp the function of the regulatory authority, the Private Security Personnel Licensing Authority (PSPLA) as that Authority is aware of the matter and will review Mr October’s actions whatever the outcome of the conviction. He submitted that, the

Judge having found there was a real and appreciable risk of constraints on Mr October’s ability to travel, pursue security work overseas and on his ability to continue working in the security industry generally, she was wrong to reject the reasonable conclusion that a conviction would, in all the circumstances, be disproportionate.

Police response

[13]   Mr Fotherby submitted that the Judge correctly assessed the gravity of the offending as moderate. He submitted that Mr October’s actions were out of proportion to the risk posed by the victim and “the running kick was a callous and gratuitous next step after the protestor had been forcibly removed from the pontoon”. Striking the head was a significant aggravating factor in terms of an assault. As to the direct and indirect consequences, counsel noted that Mr October has four previous convictions for assault. By reference to the decision of Wylie J in Roberts v Police4 the Police submit that Mr October’s offending was obviously and clearly relevant to an assessment of suitability to hold a licence and it would be wrong to conceal the conviction from the relevant Authority. The offending is exactly the sort of thing the PSPLA should have knowledge of.

[14]   Mr Fotherby took the Court through his analysis of the PSPPIA and submitted that it was far from certain that Mr October would lose the right to practise as a security consultant as a result of the conviction.

[15]   As to overseas travel, counsel noted that Mr October had a contract to go to South Africa, Namibia and Tanzania, as well as Macau and China. Counsel submitted that the consequences or effect on those contracts were speculative at present.

[16]   Overall, Mr Fotherby submitted that the consequences Mr October faced flowed naturally and predictably from his deliberate action and no injustice flows from his conviction.

4      Roberts v Police (1989) 5 CRNZ 34 (HC).

Analysis

[17]   The approach to an application for discharge is settled by Court of Appeal authority. The Judge correctly identified the principles in her judgment. The issue is whether, on the facts of this case, she erred in her application of the principles.

[18]   An appeal against a refusal to discharge without conviction is an appeal against both conviction and sentence.5  As the appeal is under s 232(2)(b) or (c) of the Criminal Procedure Act 2011 it is for the appellant to satisfy the Court that a miscarriage of justice has occurred or if “for any reason” the Judge erred in applying the relevant principles.6 The appeal proceeds on the usual appellate principles.7

[19]   The first issue is whether the Judge was correct in assessing the gravity of Mr October’s actions in this case as moderately serious.

[20]   I consider the Judge erred in her assessment of the gravity of Mr October’s actions as moderately serious. In particular she failed to consider the full context of the incident and also failed to sufficiently take into account the steps taken by Mr October after the assault.

[21]   While the assault did involve a kick to the head the background circumstances of the assault are particularly relevant in this case. The background, which is apparent from the summary of facts but which is also given more colour by the video which captured the incident and the lead-up to it, discloses provocative and aggressive actions by a group of protestors directed towards the security officers, including Mr October. The four security officers were outnumbered. During the incident a number of the security officers were assaulted and two ended up being thrown and/or kicked off the pontoon into the water. While Mr Benzur in this case was not responsible for any assault on the other security officers, he was actively involved in the incident and was thus supporting and encouraging the other protestors. He then initially approached Mr October before he and Mr October engaged in an arm wrestle, swinging each other around. Mr Benzur ended up being swung into the water.

5      Jackson v R [2016] NZCA 627.

6      Gaunt v Police [2017] NZCA 590 at [9].

7      Doyle v R [2022] NZCA 307 at [15].

Undeterred, Mr Benzur was attempting to climb back out of the water onto the pontoon to continue with his interaction with the security guards, including Mr October, when the assault occurred.

[22]   It is wrong to characterise the action of Mr October as the Police do in their submission as a “running kick” to the head. On my review of the video that is not what occurred. While Mr October did move towards the victim and kick him, he did not run towards him nor did he use any particular force in the kick to Mr Benzur’s head. It is obvious from Mr Benzur’s immediate reaction that he was not seriously injured or affected. Indeed the blow failed to dissuade him. His immediate reaction was to gesture towards and actively goad Mr October to “do it again” before attempting to climb back onto the pontoon.

[23]   To consider the context of the assault (as disclosed by the CCTV footage) is not to engage in a disputed fact hearing as suggested by the Police. While I agree with Mr Fotherby’s submission that the Judge was correct to reject Mr October’s post facto analysis of his intention at the time of the assault, the context of the assault as disclosed by the video was relevant (and indeed was considered by the Judge).

[24]At [21] the Judge noted:

The gravity assessment is based on the charge and the agreed summary of facts, not alternative narratives post-plea.

While, as noted, the Judge is correct that the Court must proceed on the basis of the summary of facts (and in this case, the uncontested CCTV record) the Court also has to have regard to factors relevant to the appellant, including steps taken after the incident, and factor those into the gravity assessment. The gravity of the offence is to be assessed by the culpability of the appellant’s conduct determined on an overall assessment of the facts, rather than the nature of the charge.8

[25]   While noting the steps Mr October had taken, the Judge does not appear to have factored them into the gravity assessment. Rather she dismissed them on the basis that Mr October has previous convictions for assault. While the convictions are

8      J (CA33/21) v R [2021] NZCA 690 at [36].

relevant, they were all dealt with by way of fine and the last was in 2005, over 18 years ago now.

[26]   While each case must be considered on its own facts the case of Northover v Police suggests that serious assault will not necessarily always be characterised as moderate, particularly where the defendant has taken steps to address the offending. In that case the Court accepted that in context, and having regard to the defendant’s subsequent actions, the gravity of domestic assaults on children could be regarded as at a low level of seriousness.9 Similarly in GSM v Police,10 domestic assaults were regarded as low to moderate.

[27]   The cases of Graham v Police and Singh v Police, relied on by Police, are distinguishable.11 Graham involved much more force and resulted in serious injuries requiring hospitalisation. Singh involved a serious domestic assault without the mitigating features of Northover v Police or GSM v Police. Relevantly in the present case also, Mr Benzur’s physical injuries were obviously minor.

[28]   In the circumstances I agree with the submission for Mr October that in context and taking account of Mr October’s subsequent actions, the gravity of the offending can appropriately be seen as of low seriousness.

[29]   As to the consequences, Mr Waalkens placed less weight on the issue of Mr October’s ability to travel overseas than on the impact of a conviction on his ability to work as a security consultant.

[30]   The Judge noted that despite his previous convictions Mr October had been able to travel overseas. However, as noted the convictions are historical with the last being for an incident in 2005, over 18 years ago. A more recent conviction is more likely to impact his ability to travel.

[31]   However, of more significance is the impact of a conviction on his ability to work.

9      Northover v Police [2020] NZHC 167.

10     GSM v Police [2017] NZHC 896.

11     Graham v Police [[2013] NZHC 2575; and Singh v Police [2019] NZHC 417.

[32]   This is not a case of hiding the matter from the relevant disciplinary authority. The disciplinary authority is well aware of the incident. Mr October self-reported it. The incident also received publicity on national television. The PPSA will deal with the matter after its internal review of Mr October’s actions.

[33]   Mr Fotherby took some time traversing the relevant provisions of the PSPPIA to support his submission that a conviction would not necessarily prevent Mr October from working as a security consultant. He noted the Judge did not accept Mr Morrison’s evidence that revocation of his licence was the likely outcome.

[34]   Despite Mr Fotherby’s analysis of the PSPPIA, as Moore J noted in GSM v Police,12 the issue for the Court is whether the risk of loss of his licence and ability to work as a security consultant is a real and appreciable one. A conviction for assault is noted as a ground for disqualification under the PSPPIA: s 62(f)(vii) and cancellation of licence: s 79. While it is correct that the PPSA must also be satisfied because of the conviction the licensee is not a suitable person to hold a licence, a conviction clearly has serious consequences. A conviction would obviously be regarded more seriously than a discharge without conviction. In light of Mr Morrison’s evidence and the provision of the PSPPIA I accept that there is clearly a real and appreciable risk that Mr October will lose his licence if a conviction is entered. This is not a case (which the Judge seemed to consider it was) of the Court usurping the disciplinary bodies authority. As noted, Mr October has self-reported and the PPSA will consider his future. As a statutory ground for disqualification a conviction would be particularly damaging to Mr October’s case.

[35]   In the circumstances of this case, taken overall, a conviction would be out of all proportion to the gravity of the offending.

[36]I am satisfied that the discretion should be exercised in Mr October’s favour.

Result

[37]For those reasons the appeal is allowed.

12     GSM v Police, above n 10.

[38]   On the charge of assault Mr October is discharged without conviction. The sentence imposed in the District Court is set aside.

Venning J