R v Cleaver - [2020] NZCA 397

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA186/2020
[2020] NZCA 397

BETWEEN	THE QUEEN Appellant
AND	FERGUS DONALD CLEAVER Respondent

Hearing:	20 July 2020
Court:	Clifford, Woolford and Dunningham JJ
Counsel:	R K Thomson for Appellant M J Dyhrberg QC and H G de Groot for Respondent
Judgment:	7 September 2020 at 10 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

On 13 March 2020, in the Auckland District Court, Fergus Donald Cleaver was discharged without conviction on one charge of injuring with reckless disregard by Judge Field and ordered to pay $10,000 emotional harm reparation to the victim, his former wife.[1] The Solicitor-General now seeks leave to appeal to this Court against the Judge’s decision to grant a discharge without conviction on the basis that the Judge was plainly wrong in his conclusion that the consequences of a conviction were out of all proportion to the gravity of the offending.
[1]R v Cleaver [2020] NZDC 4550.
Leave to appeal was opposed. It is, however, in the interests of justice to grant leave because of the emotional impact of the offending on the victim. Leave is granted accordingly.

Factual background

Following a five-day jury trial in the Auckland District Court between 9 and 13 December 2019, Mr Cleaver was found not guilty of two charges of male assault female and guilty of one charge of injuring with reckless disregard.
The Judge found, for the purposes of sentencing, that in the course of an argument Mr Cleaver entered the bedroom occupied by the victim and told her to shut up because she was crying.[2] While she was lying on the bed, he put one hand over her mouth and the other on her neck and told her to stop crying or he would punch her. At that, she cried even louder. Mr Cleaver then punched the victim with a closed fist to her right eye. The victim got away from Mr Cleaver and fled to a friend’s address. The victim suffered bruising to her right eye and a broken nose as a result of the punch, although there was some previous surgery to her nose which may have left it somewhat weakened.

District Court decision

[2]At [3].

Mr Cleaver was sentenced on 13 March 2020. After setting out the facts as he found them and the test to be applied when an application is made for a discharge without conviction, the Judge noted the victim’s enormous emotional distress in addition to the physical pain and shock of the punch itself.[3] He accepted that although there was only one punch, that punch has had a profound effect on her, both physically and mentally.
[3]At [8].
The Judge then assessed the gravity of the offending as moderate.[4] The punch was to the victim’s head. She was vulnerable as the violence occurred in the home she shared with…

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 R v Cleaver

Details

AGLC: R v Cleaver [2020] NZCA 397
Case: [2020] NZCA 397
Decision Date: 7 September 2020 at 10 am

CaseChat Overview and Summary

The Crown appealed against the decision of Judge Field to discharge Fergus Donald Cleaver without conviction on one charge of injuring with reckless disregard. The Crown argued that the consequences of a conviction were not out of all proportion to the gravity of the offending. The appeal was opposed but leave to appeal was granted due to the emotional impact of the offending on the victim. The Court considered the test to be applied under s 296 of the Criminal Procedure Act, which permits appeals, with the leave of the appellate court, on questions of law against a ruling by the trial court. The Court concluded that although many Judges may have weighed the various factors differently and made an assessment that the likely consequences of a conviction were not out of all proportion to the gravity of the offending, it could not say that no Judge acting rationally within the scope of ss 106 and 107 of the Sentencing Act would have discharged Mr Cleaver without conviction. The appeal was dismissed.

The Court's reasoning was based on the fact that the decision to grant a discharge without conviction was open to the trial Judge, who had heard evidence over five days and had the benefit of extensive reports and submissions. The Court found that the Judge was not plainly wrong in his conclusion that the consequences of a conviction were out of all proportion to the gravity of the offending. The Court considered the enormous emotional distress caused to the victim, the rehabilitative efforts made by Mr Cleaver, and the consequences of a conviction on his ability to travel overseas for business and charitable purposes. The Court found that these factors were properly considered by the trial Judge and that the decision to grant a discharge without conviction was not plainly wrong. The appeal was accordingly dismissed.

Orders