Police v Head - [2021] NZHC 809

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000172

[2021] NZHC 809

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

JAMES EDWARD HEAD

Respondent

Hearing: 25 February 2021

Appearances:

A L Mills for the Appellant

M M Cole and E Huda for the Respondent

Judgment:

19 April 2021

JUDGMENT OF NATION J

Introduction

[1] This Court recognises that Judges sentencing in the District Court do so in very different circumstances from those in the High Court dealing with an appeal. In the District Court, the Judge is required to deal with a number of matters on the same day, usually with a modest amount of time in advance to prepare for the sentencing. A sentencing Judge is almost always required to give an oral decision where there is not the time or opportunity to carefully assess what they are proposing to say and to edit their anticipated comments in a way that, upon reflection, they might have considered advisable. When giving oral decisions, it is possible for slips to be made and for comments to be made impulsively when, on further reflection, they might not have been.

POLICE v HEAD [2021] NZHC 809 [19 April 2021]

[2] Nevertheless, what a Judge says will always matter. In particular, when a statement reveals the way a Judge’s thinking has led to the determination under challenge. This is such a case.

Background

[3]The respondent pleaded guilty to making an intimate visual recording.1

[4] On 29 December 2019 at approximately 11.00 am, the respondent was in a changing cubicle at Kmart in Christchurch. He placed his cell phone beneath the wall of the next cubicle, filming a woman as she changed her clothing. She banged on the cubicle wall. He then removed the cell phone.

[5] Judge Brandts-Giesen discharged the respondent without conviction conditional on his paying $300 to Women’s Refuge.2 The Crown applies for leave to appeal that discharge. It contends the Judge erred in law.

District Court decision

[6] The Judge began by accepting the respondent pleaded guilty at the first available opportunity. He set out the facts as just referred to. He noted, in explanation, the respondent stated he had made a big mistake and he had not previously appeared before the District Court. The Judge outlined the three-stage test for a discharge without conviction.

[7] The Judge first considered the gravity of the offence, viewing it objectively. He found the offending was low to moderate in seriousness. He considered it “unlikely in a changing cubicle that the person would strip down to their naked selves”.3

[8] In that sense, the Judge found the offending was different than, for example, a surreptitious recording of someone changing at a swimming pool. As to that, he

1 Crimes Act 1961, s 216H – maximum penalty three years’ imprisonment.
2 Police v Head [2020] NZDC 20879.
3 At [7].

commented “[w]omen are probably more sensitive about that than men are, and that is something any mature male…

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 Police v Head

Details

AGLC: Police v Head [2021] NZHC 809
Case: [2021] NZHC 809
Decision Date: 19 April 2021

CaseChat Overview and Summary

The New Zealand Police appealed the decision of the District Court to discharge James Edward Head without conviction, following his guilty plea to making an intimate visual recording of a woman changing clothes in a Kmart changing cubicle. The appeal was allowed. The Court found that the District Court Judge made errors of law in his determination to discharge the respondent without conviction. The respondent had placed his phone beneath the wall of the next cubicle, filming the woman as she changed her clothing. She banged on the cubicle wall. He then removed the cell phone. The District Court Judge discharged the respondent without conviction conditional on his paying $300 to Women’s Refuge. The Crown applied for leave to appeal the decision, contending the Judge erred in law. The Crown sought leave to appeal on the following three questions: did the Judge take into account irrelevant considerations, as set out below, when considering the gravity of the offending and the consequences of conviction; and was the Judge plainly wrong in his conclusion that the consequences of conviction were out of all proportion to the gravity of the offending. The appeal related to a number of observations the Judge made about aspects of human behaviour or thinking that the Police contended the Judge took into account when reaching his decision. The Police argued these observations were irrelevant and/or not supported by evidence. The Crown submitted the Judge’s assessment of society as reasonably puritanical was irrelevant to the consideration of the gravity or consequences of conviction. The Court found the Judge did make errors of law in determining the respondent should be discharged without conviction. The High Court determining an appeal by the prosecutor may confirm the ruling appealed against or, as an alternative to other specified outcomes, make “any other order that the court considers justice requires”. The Court considered the gravity of the offending, the consequences of the offending, and whether the consequences of a conviction would be out of all proportion to the gravity of the offending. The Court found the consequences of a conviction, both as to employment and for the respondent’s family, were not as serious as they were for the offender in Pradhan. The respondent had not satisfied the Court that the consequences of a conviction would be out of all proportion to the seriousness of the offence for which he could be convicted. The Court concluded the Judge was wrong to grant the respondent a discharge. The appeal was accordingly allowed. The grant of a discharge without conviction was quashed. The respondent was convicted and discharged.

Orders