Puriri v Police - [2018] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000014

[2018] NZHC 1682

BETWEEN
RATAUHINGA PURIRI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 June 2018

Counsel:

T Sutcliffe for Appellant A A Pell for Respondent

Judgment:

10 July 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 10 July 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Almao Douch, Hamilton

RATAUHINGA PURIRI v NEW ZEALAND POLICE [2018] NZHC 1682 [10 July 2018]

[1] Ms Puriri went to a two-dollar shop. She stole a $4.50 mobile phone cord and left the store. Outside the store the shop owner tried to stop her. Ms Puriri slapped the owner twice to the head and pushed her to the ground. The shop owner got up and Ms Puriri kicked her multiple times causing the shop owner to fall to the ground. Ms Puriri gave the cord back shortly afterwards. She was charged with aggravated assault and theft. Judge Ingram convicted Ms Puriri and sentenced her to 100 hours’ community work. Ms Puriri appeals against the Judge’s decision to refuse discharge without conviction. She wants to be a teacher and is fearful that conviction might preclude that prospect.

[2] Leave has been sought, by consent, to adduce evidence from the Associate Dean of Teacher Education about the effect of a conviction. Leave is granted.

Jurisdiction

[3] The threshold test for the appeal is whether a miscarriage of justice has occurred.1 There will be a miscarriage if there has been a material error. Here, Mr Sutcliffe contends the Judge erred by giving undue weight to the gravity of the offending.

The discretion

[4] A court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.2 This requires a three-step process: first, identify the gravity of the offence, second, identify the direct and indirect consequences of a conviction; and, third, determine whether the consequences of a conviction are out of all proportion to the gravity of the offence.3 This proportionality test is not a matter of discretion, but rather of judicial assessment.4 The Court may

1      Jackson v R [2016] NZCA 627 at [12]. See also Gaunt v Police [2017] NZCA 590 at [9]-[10].
2      Sentencing Act 2002, s 107.
3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
4      H (CA680/11) v R [2012] NZCA 198 at [30].

decide whether to exercise its discretion under s 106 only if the s 107 test is met. It remains open to the Court to decline to exercise its discretion to grant a discharge.5

The decision

[5] Judge Ingram considered the offending to be “a matter of substantial public concern”, having regard to the increasing frequency of assaults on shopkeepers and public concern about such assaults. The Judge considered…

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.

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Details

Case: [2018] NZHC 1682
Decision Date: 10 July 2018

CaseChat Overview and Summary

Ms Puriri appeals against the decision of Judge Ingram to refuse a discharge without conviction. Ms Puriri, a young woman, stole a $4.50 mobile phone cord and assaulted the shop owner when she tried to stop her. Ms Puriri was charged with aggravated assault and theft, convicted and sentenced to 100 hours’ community work. Ms Puriri appeals against the refusal of a discharge without conviction. She wishes to become a teacher, but is concerned a conviction will affect her chances of doing so. The legal issue is whether a miscarriage of justice occurred. The appeal court found that the offending was more akin to a push and shove than a serious assault, such as a robbery. The court also found that the consequences of a conviction were out of all proportion to the gravity of the offence, given Ms Puriri's youth and remorse. Ms Puriri is discharged without conviction, but must pay reparation in the sum of $1,000 to the victim of her offending.

Orders