P v Police HC Wellington CRI 2007-435-11

[2008] NZHC 2234

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007-435-11

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 March 2008

Counsel:         L Elder for Appellant

C Patterson for Respondent

Judgment:      18 March 2008

ORAL JUDGMENT OF RONALD YOUNG J

[1]      This is an appeal against a refusal by a District Court Judge to discharge the appellant without conviction after he had pleaded guilty to one charge of assaulting a female, previously his partner, and two charges of breaches of a protection order.

[2]      The appellant and complainant are both still young adults and had a lengthy relationship which ultimate produced a child.  The relationship broke down in early December 2006 and the complainant obtained a protection order with respect to herself and the parties’ young son.  In December 2006 the appellant went uninvited to the complainant’s house and barged inside.  There was something of a dispute as

to what exactly happened inside the property.  The sentencing Judge proceeded on

P V NEW ZEALAND POLICE HC WN CRI 2007-435-11  18 March 2008

the basis that at least the appellant had pushed the complainant, that the young child was present and very upset and the complainant suffered bruising to her arm and some tenderness to her cheek.   The appellant was arrested and granted bail.   A condition of the bail was that he not contact the complainant or enter her house.  In addition, the complainant obtained a trespass order with respect to the appellant relating to her residence.  The appellant, therefore, was prohibited from going to the complainant’s address by virtue of the protection order, the trespass order and his bail conditions.

[3]      Regretfully he did not treat these prohibitions seriously.  On 14 January in the following year, after drinking and at about 2.30 a.m. he again entered the complainant’s house and hid under his young son’s cot.  The victim returned soon after, saw him and called the police.   The appellant then left after abusing those present.

[4]      The  Judge  at  sentencing  acknowledged  the  appellant’s  application  for  a discharge without conviction.   He identified the relevant statutory provisions, the appropriate test in law, and examined the factors for and against the application for a discharge.  He concluded on balance that the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offending.

[5]      The written submissions by the appellant in support of this appeal do not suggest that the Judge failed to appreciate any factual or legal point.  The points on appeal allege the penalty imposed, a conviction and discharge, was manifestly excessive.  That can hardly be given the penalty and the charges.

[6]      In oral submissions counsel’s focus was to emphasise those grounds which favoured a discharge without conviction and say that the Judge did not give enough weight to the fact that the appellant had completed a Stop Violence Programme and had been on bail for some eight months between his initial plea of guilty and his final sentencing.

[7]      As a general observation, the District Court Judge comprehensively dealt with the facts of the two incidents.  He took the most generous view of the assault

from the appellant’s perspective.  As to the second breach of the protection order the appellant, through counsel,  claimed that he  was  walking past  the  complainant’s house at 2.30 a.m. heard noises and went into the house through an open door.  This explanation seemed unlikely to be true.  In any event, it did not explain why he was just passing the complainant’s house at 2.30 a.m. and why, even if he had heard voices, that entitled him to breach his bail, the protection order and the trespass order and enter the house.

[8]      The  Judge  dealt  in  considerable  detail,  and  sympathetically,  with  the appellant’s personal circumstances.   He acknowledged his  youth  and  the  strong feelings that the breakup of the relationship had engendered in him.  The Judge took into account the appellant’s crime-free past.   He acknowledged that the appellant was partway through his Bachelor of Education degree and that a conviction would likely affect his ability to obtain registration as a teacher.  In addition, the Judge took into account the effect a conviction might have on the appellant’s part-time work as a duty manager at a licensed premises.

[9]      The   Judge   also   acknowledged   that   the   appellant   had   attended   and satisfactorily completed a non violence programme.  While he did not particularly mention the fact that the appellant had been on bail for eight months, the Judge of course would have known of that.  I do not consider in those circumstances that it could possibly be said the Judge did not place sufficient weight on the completion of the programme or on the fact the appellant was on bail.  The Judge seemed to me to balance all the factors for and against a discharge.  He balanced the factors which favoured a discharge without conviction against what he saw as the level of seriousness of the offending.   He decided, while finely balanced, that the balance laying in favour of a refusal of a discharge.  This was a judgment made, as I have said, after a careful consideration of the facts and the law.

[10]     In my view no error has been shown by the Judge.  The appellant’s case is really based on the proposition that I should take a different view of where the balance lies here.   Given this is an appeal against the exercise of a discretion and given no error has been shown then the appellant has failed to make out the grounds of the appeal.

[11]     One final point I wish to mention.   In support of the appeal the appellant attached a letter from one of the appellant’s lecturers.  The lecturer makes the point that if the appellant has a criminal conviction then “it will make it very difficult for him to win a teaching position”.  I imagine that any teaching registration authority will, in its consideration of the appellant’s situation, be primarily interested in the facts and the circumstances of what happened in this case rather than whether the appellant has or has not a criminal conviction arising from his conduct.  Even if the appellant  had  been  discharged  without  conviction  I assume  that  the  registration authority would wish to know how Mr P   had acted on these occasions, and along with a large number of other factors his actions will be relevant as to whether or not he should be registered as a teacher.   It is, therefore, in my view somewhat false to bring in aide the mere fact of a conviction as being the pivotal question on teaching registration.

[12]     For the reasons I have given, however, I see no error in the decision of the Judge.  The decision was eminently open to him.  He made no error of fact or law, nor of any balance of factors. For those reasons, therefore, the appeal will be dismissed.

“Ronald Young J”