Paraire v Police

[2013] NZHC 2508

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-485-61

[2013] NZHC 2508

BETWEEN

MIRIA PARAIRE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 September 2013

Counsel:

Appellant in person

I Murray for the Respondent

Judgment:

25 September 2013

JUDGMENT OF MALLON J

Introduction

[1] Ms Paraire was charged with common  assault1  and  assault  of  a  police officer.2 These charges arose from an incident involving Ms Paraire and her 15 year old son, which the police attended. Following a sentence indication of supervision, guilty pleas were entered to the charges. She was sentenced to nine months’ supervision with special conditions.3 Ms Paraire now appeals against her conviction and sentence on the common assault.

Background

[2]   According to the police summary of facts, at about 6.30 am on 27 May 2013 Ms Paraire went into her son’s bedroom, angry that he had taken her tobacco pouch. She allegedly scratched him near his arm pits. He pushed Ms Paraire away but she continued to attack him, scratching him further and punching him. The police arrived

1       Crimes Act 1961, s 196.

2       Summary Offences Act 1981, s 10.

3       New Zealand Police v Paraire DC Wellington CRI-2013-085-6033, 25 July 2013.

PARAIRE v NEW ZEALAND POLICE [2013] NZHC 2508 [25 September 2013]

and arrested Ms Paraire. One of the police officers directed Ms Paraire to accompany them outside, but she reacted by punching the police officer in the chest.

[3] On 25 July 2013 Ms Paraire appeared in the District Court at Wellington. Counsel for Ms Paraire, asked the Judge to give a sentence indication on the two charges before the Court. She indicated that Ms Paraire’s memory of the incident was not “overly clear”. She said that Ms Paraire was “not sure that she would have assaulted, particularly the police officer” but counsel’s instructions were clear that Ms Paraire wished to  “put  this  incident  behind  her”.  Counsel  also  said  that Ms Paraire and her family were suffering from significant health issues, that probation supported a sentence of supervision and that there were domestic violence programmes that would be suitable.

[4] The Judge indicated that a sentence of supervision would be appropriate considering that Ms Paraire had no previous violence convictions and the limited extent of the assault. Counsel then responded “on that basis, if your Honour were minded to sentence her to supervision, then guilty pleas are entered on both charges”.

[5] The Judge asked if the son was back living  with  his  mother.  Counsel confirmed that he was. It was only at this point that Ms Paraire said anything. Not all of what she said was audible. The transcript records the following:

MS PARAIRE:

We’ve been trying to (inaudible 10:27:27) for a long time now. So he’s still (inaudible 10:27:30) around us and then he’s six foot two, he’s six foot two anyway.

THE COURT:

Is he? Yes.

MS PARAIRE:

Yes, he’s just, you know, (inaudible 10:27:48).

THE COURT:

Well supervision is recommended for your sentence, do you agree with that? Okay. I wonder what conditions I should impose and how long the sentence should be. What do you suggest? I mean there might be an anger issue here,

there may not be. There might be other counselling needed and perhaps a nine month sentence, that’s what I have in mind. Is there anything you want to say about that?

... [discussion with probation officer about sentence and conditions]

THE COURT:

Okay, all right just a moment thanks. Yes Ms Paraire, this assault on your son and the police is not a particularly serious assault and I think supervision is an appropriate sentence, without any other sentence. Obviously there are issues that you and your son have to address and hopefully this will lead to some help being given in that respect, I hope so. You are convicted and sentenced to nine months’ supervision, on the special conditions that you attend and complete any assessments, counselling or programmes for non- violence as directed by a probation officer and attend any other counselling as directed by a probation officer. Now there is some paperwork to complete. You must remain while that is done, then you will be able to go. I suggest you just have a seat in the back of the courtroom but don’t leave until you are told you can.

Submissions

[6] In her submissions Ms Paraire gave her account of the events leading to her being charged. She says that she and her son got into an argument. When the argument became heated, Ms Paraire picked up the phone and called the police and then hung up. She says that at that point her son grabbed the phone and “came at [her]”. She says she pushed her son away, scratching the sides of his lower armpits. She and her son then stared at each other for 15 minutes and her son then went to go to his room to put on a shirt. It was at that point that the police arrived. Ms Paraire says that she and her son were both quite surprised that the police had come because all she did “was tap the number and hang up”. She says that to them the altercation was over and Ms Paraire told one of the officers that. However the police informed Ms Paraire she was being charged with the assault of her son. She says she was angry about being arrested in front of her children and she gives an account of what she was thinking when she was resisting the arrest and assaulting the officer.

[7] She describes the altercation with her son as an accumulation of puberty bravado, issues regarding her son’s relationship with a policeman’s adopted daughter, missing items from the house, unwanted friends, general bad behaviour and attitude, and a chronically ill family. She says that since she has been charged with assaulting her son she has contemplated suicide and cannot participate in her

children’s social life and school. Her son still lives at home with her. Ms Paraire also provided the Court with a medical certificate from her doctor dated 11 September 2013 which states that she suffers from disorders which affect her ability to cope and concentrate and make her prone to outbursts of anger.

[8] In relation to her guilty pleas, Ms Paraire says that she found the situation confusing. She says she understood she was pleading guilty to the assault on the police officer, but did not realise she had pleaded guilty to assaulting her son until after the hearing was over.

[9] The Crown submits that none of the obvious grounds of appeal following a guilty plea are made out in this case. The Crown says that Ms Paraire was represented by experienced counsel and it is therefore inconceivable that the guilty pleas on both charges would have been entered without instructions from Ms Paraire to do so. Counsel further says that Ms Paraire’s sentence appeal should be dismissed because the sentence of nine months’ supervision was not excessive.

Assessment

[10]   An appeal against conviction following a guilty plea will be entertained only in exceptional circumstances, where a miscarriage of justice will result if the conviction is not overturned.4  In R v Merrilees it was said:5

It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

[11] On the facts here it is clear that both charges were being discussed. It is also clear that counsel understood that Ms Paraire wished to plead guilty to both charges. Because  counsel  entered  the  pleas  on  her  behalf,  Ms Paraire  did  not  have  the

4       R v Stretch [1982] 1 NZLR 225 (CA) at 229; R v Le Page [2005] 2 NZLR 845 (CA) at [16].

5       R v Merrilees [2009] NZCA 59 at [35].

opportunity to confirm that directly herself. The Judge sought confirmation from Ms Paraire about the sentence but not specifically about the guilty pleas. I do not have evidence about the nature of the advice given before the pleas were entered which would have been preferable. I do have evidence that Ms Paraire has difficulty in coping and concentrating. In light of that evidence, and having seen and heard from Ms Paraire on the appeal, I can accept that the hearing would have been stressful for Ms Paraire and she may not have fully appreciated the consequences of entering a guilty plea in respect of the assault on her son.

[12] I am also concerned that, what appears to be a minor altercation between a frail and unwell mother with her large teenage  son resulted in a charge and a conviction on that charge, especially if there is no suggestion of other violence between them. It is not apparent that there was any discussion about alternative ways of addressing the unfortunate situation that arose between mother and son. The ensuing altercation with the police escalated matters. A charge in respect of that altercation was understandable. Ms Paraire accepts her conviction in respect of that charge and also does not contest the nine month supervision sentence in respect of that charge.

[13] In these circumstances I consider that there is a risk of miscarriage of justice and the appeal should be allowed in respect of the conviction on the son.  In doing so I am giving Ms Paraire the benefit of the doubt in accepting that she may not have understood what she was doing and the likely consequences of that. I have decided that the appropriate course is to remit the matter to the District Court for rehearing.6 It will be up to the police to decide whether to pursue the charge, in light of the fact that the conviction on the other charge stands, the sentence for that conviction should

address the matters which gave rise to this incident, and any other relevant information they may have.

6       Summary Proceedings Act 1957, s 131. Although the charge is not a serious one, the decision on whether it should be pursued is one appropriately left for the police in light of all the information available to them.

Result

[14] The appeal against conviction on the common assault is  allowed.  It  is remitted to the District Court for rehearing. For the avoidance of doubt, the conviction and sentence in respect of the assault on the police officer (which were not appealed) stand.

Mallon J