Police v SR - [2013] NZHC 980

PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT, PERSON UNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF THE RESPONDENT AND PARTNER PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-393 [2013] NZHC 980

NEW ZEALAND POLICE
Appellant

v

SR
Respondent

Hearing: 6 May 2013

Counsel: A Longdill and M Regan for the Appellant
R Weir and R Slade for the Respondent

Judgment: 6 May 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Ms A Longdill/Mr M Regan, Meredith Connell, Office of the Crown Solicitor, Auckland
Mr R Weir/Mr R Slade, Public Defence Service, Auckland

POLICE V SR HC AK CRI-2012-404-393 [6 May 2013]

[1] This is an appeal by the New Zealand Police by way of case stated following discharge of the respondent without conviction on a charge, to which she had pleaded guilty, of leaving children without reasonable care and supervision.[1]

[1] Police v SR DC Auckland CRI-2012-004-004730, 23 October 2012. Section s 10B Summary

Offences Act 1981.

[2] The facts of the offending to which the respondent pleaded guilty, and the respondent’s further explanation as to how this offending came about, are noted in broad terms in the District Court judgment. I do not propose to record the background facts again. However, one matter that is important to note is that there was unchallenged evidence from the respondent explaining what happened in a way which, in my judgment, justified the Judge’s implicit conclusion that this offence was well short of being at the serious end of the spectrum for this particular type of offence. I will come back to that point in a different way in a moment.

[3] The question recorded in the case state is as follows:

Did I misapply the test in s 107 of the Sentencing Act 2002 by being satisfied on the material before me that there were direct and indirect consequences of a conviction for the respondent that would be out of all proportion to the gravity of the offence?

[4] In my judgment, on the face of it, this does not raise a question of law; or at least it is difficult to discern the question of law with the question stated so broadly. Stated at the broadest level in respect of s 107 the question would be not whether the Judge misapplied the test, but whether he applied the correct legal test. It is not contended by the appellant that the Judge applied the wrong test. This is perhaps implicit in the question posed in the case stated. In any event, the correct test is clearly identified in the decision; that is to say, the test under s 107.

[5] As discussed with Ms Longdill during the hearing, the appropriate question of law at this point, if it is stated in general terms, would seem to be a question along…

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 SR

Details

AGLC: Police v SR [2013] NZHC 980
Case: [2013] NZHC 980
Decision Date: 6 May 2013

CaseChat Overview and Summary

The New Zealand Police appealed against the decision of the District Court to discharge the respondent without conviction on a charge of leaving children without reasonable care and supervision, to which she had pleaded guilty. The appeal was by way of a case stated, focusing on whether the District Court judge misapplied the test under s 107 of the Sentencing Act 2002. The core issue was whether the direct and indirect consequences of a conviction for the respondent would be out of proportion to the gravity of the offence. The High Court found that the appeal did not raise a question of law but rather engaged with questions of fact and the adequacy of reasons. The submissions pointed to the lack of clarity in the gravity of the offence and the speculative nature of the consequences identified by the respondent. However, the High Court determined that the judge had applied the correct legal test and found no error of law in the decision-making process. The court emphasised the importance of considering the overall circumstances, including the respondent's efforts to improve her situation and the potential adverse consequences of a conviction, which could be significant for a young woman in difficult circumstances.

The High Court concluded that the District Court judge properly applied the s 107 test and did not misdirect himself on a point of law. The judge had considered the direct and indirect consequences of a conviction, which included the speculative hopes of the respondent to pursue a career in social services, as well as her expressed concern that a conviction could jeopardise her efforts to keep her life on track. The High Court found that the respondent's affidavit provided sufficient evidence to support the judge's assessment. The appeal was dismissed, reinforcing that the judge's decision was justified and there was no error of law in the discharge of the respondent without conviction.

Orders