Ricciotti v Police
[2016] NZHC 2999
•12 December 2016
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2016-476-000011 [2016] NZHC 2999
BETWEEN MARK ANTHONY RICCIOTTI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 December 2016 Appearances:
Appellant in person
M A Beattie for the RespondentJudgment:
12 December 2016
JUDGMENT OF NATION J
[1] On 2 April 2016 at about 1.30 am, the appellant (Mr Ricciotti) was involved in an altercation with a police constable on a street near Mr Ricciotti’s home in Waimate. Mr Ricciotti had become angry with the police officer. There was a struggle between Mr Ricciotti and the police officer. Mr Ricciotti’s father sought to intervene. Mr Ricciotti threatened to put a bullet through the head of the police officer.
[2] On 28 July 2016, Mr Ricciotti pleaded guilty to charges of resisting arrest and threatening to kill the constable.
[3] On 22 September 2016, with the assistance of counsel, Mr Ricciotti sought a discharge without conviction. The Judge convicted and discharged Mr Ricciotti on the charge of resisting arrest.1 On the threatening to kill charge, the Judge entered a conviction and sentenced Mr Ricciotti to nine months’ supervision with a special
condition that Mr Ricciotti attend and complete an appropriate programme or
1 New Zealand Police v Ricciotti [2016] NZDC 18929 at [26].
RICCIOTTI v POLICE [2016] NZHC 2999 [12 December 2016]
counselling to the satisfaction of a probation officer, the specific details of the appropriate programme to be determined by a probation officer.
[4] Mr Ricciotti filed his own notice of appeal. He appeared for himself without counsel when the appeal was called before me on 6 December 2016.
[5] With his notice of appeal, Mr Ricciotti filed a letter setting out the grounds which, in summary, were that:
(a) the circumstances and crucial factors which led up to the incident were not adequately considered;
(b) he was not properly represented because of the attitude his solicitor took towards him; and
(c) a crucial witness was unable to appear and give evidence regarding the night in question.
[6] When the matter was called before me, Mr Ricciotti sought an adjournment so he could arrange for a witness to come to Court to give evidence.
[7] I gave Mr Ricciotti the opportunity to explain the nature of the evidence which he was wanting to put before the Court. He told me he had discovered there was a man, aged about 22, who had been walking past the scene of the incident when the police officer was speaking to Mr Ricciotti’s father. He said this witness would say that he was not happy with the way the police officer was speaking to his father. Mr Ricciotti said he had spoken to this person but told me he did not know his surname or his address and had not got contact details from him.
[8] After hearing this, I refused to adjourn the appeal. [9] I refused the adjournment because:
(a) it was clear from the Judge’s sentencing notes that Mr Ricciotti was
sentenced on the basis of the particular offending which he had admitted
to. The nature of that offending was also acknowledged again by Mr
Ricciotti in the submissions he made to me;
(b) while the background was of some relevance and there had been a dispute as to some aspects of the summary of facts, it was clear from the sentencing notes that the context was not of ultimate importance to the Judge in refusing a discharge. Having heard through his submissions Mr Ricciotti’s account of what occurred in the background, that is how I have also considered whether the Judge was in error in refusing the discharge;
(c) it also appeared that detailed information which was before the sentencing Judge indicated Mr Ricciotti’s version of the events leading up to the offending may well not have been as he described them (and as Mr Ricciotti was later to describe them to me). The Judge nevertheless appeared to have dealt with him on the basis Mr Ricciotti’s actions with the police officer could be explained by particular difficulties that existed in the relationship between him and the police officer and thus imposed a sentence where the emphasis was on rehabilitation rather than punishment; and
(d) the prospect of any Judge allowing the potential evidence Mr Ricciotti had referred to being put before the High Court on the hearing of an appeal against sentence, after a proper application had been made, was extremely limited.
The Judge’s decision
[10] The Judge noted that the potential sentence on a charge of threatening to kill is up to seven years’ imprisonment.2 He noted that a threat to kill a police officer does have an impact, even on police officers who at times have to deal with
intoxicated people or people who have a mental illness.
2 Crimes Act 1961, s 306(a).
[11] He noted that Mr Ricciotti, through his counsel, disputed aspects of the summary of facts but said that, through his guilty plea, Mr Ricciotti had admitted he made a threat to kill the constable and that Mr Ricciotti intended the threat to be taken seriously. Having regard to the victim impact statement from the constable, he accepted the threat had such an impact.
[12] The Judge stated that, with an application to discharge somebody without a conviction, he was required to look at the gravity of the offending, the direct and indirect consequences of entering a conviction, Mr Ricciotti’s culpability or blameworthiness as a whole, and to then decide whether a conviction would be out of all proportion to the seriousness of the offending.
[13] The Judge referred to the probation officer’s opinion that Mr Ricciotti’s risk of harm to others was assessed as low based on his lack of previous convictions. However, the Judge noted previous instances in which Mr Ricciotti had the benefit of diversions and formal warnings, as well as a s 106 discharge on a charge of a common assault in July 2015. The Judge speculated the probation officer’s opinion may have been different if she had known that.
[14] The Judge noted that it had become part of Mr Ricciotti’s character and response mechanism to either use threatening language or to behave in a way that showed he had difficulty in exercising self-control. The Judge said Mr Ricciotti needed to have such an ability if he hoped to be a successful teacher, a hope which was the primary basis on which Mr Ricciotti had sought a discharge.
[15] The Judge acknowledged that Mr Ricciotti had begun to recognise the problems in this regard, had engaged with a counsellor and appeared to be making some progress.
[16] The Judge noted the application for discharge was based on the fact that Mr Ricciotti was close to completing a diploma which would enable him to seek registration as a teacher and that he wanted to be able to return to Australia and undertake teaching.
[17] The Judge noted that professional bodies have an internal system of deciding who is appropriate to be registered. He said the Court should be reluctant to conceal from such a body relevant information about somebody’s behaviour. The Judge referred to a letter from the Teaching Council advising that, if an applicant for registration had a conviction, the applicant would be asked to provide further information as to that conviction and to give a full explanation of the incident and circumstances. The Council would seek assurances around the applicant’s good character and fitness to teach which might include testimonials. It was the Judge’s view that Mr Ricciotti needed to undertake further remedial work around self- regulation and control when under stress.
[18] Ultimately, the Judge had regard to the gravity of the offending. He said he had not been persuaded that the consequences of conviction out-weighed the need to impose a conviction and a sentencing outcome which would ensure Mr Ricciotti continued to receive appropriate treatment. For those reasons, he held the threshold to grant a discharge had not been crossed.
How an appeal against a refusal of a discharge is to be considered on appeal
[19] An appeal against a refusal to grant a discharge proceeds as a general appeal.3
The appeal proceeds by way of a rehearing rather than as an appeal against a discretionary decision of the lower Court.
[20] I must consider the three steps involved in dealing with a s 106 application. Firstly, the gravity of the offending; secondly, the consequences of conviction; and, finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.4 If Mr Ricciotti can show me the first instance decision was wrong, I should substitute the decision which I consider to be correct.
The Crown’s submissions
[21] Mr Beattie pointed out that there had been no disputed facts hearing. The statement of what occurred, as set out in the summary of facts, had been supported
3 R v Hughes [2009] 3 NZLR 222 (CA) at [11].
4 At [16]-[22], citing Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 241-242.
by a witness statement provided by the constable. Despite this, he said the Judge had acknowledged there was a dispute as to some aspects of the summary of facts but dealt with Mr Ricciotti on the basis Mr Ricciotti had admitted the crucial elements of each charge.
[22] Mr Beattie submitted the Judge had followed the orthodox and legally required approach in considering whether a discharge without conviction was justified. He said the Judge had considered the detailed information before him and the potential consequences of the admitted offending which Mr Ricciotti was, through his counsel, asking the Court to consider. He submitted the criticism of counsel made in the notice of appeal should not be taken further given Mr Ricciotti had not waived privilege or given his counsel the opportunity to respond to the criticisms. He contended the application could not be considered in the context of just the immediate offending given the earlier occasions on which Mr Ricciotti had been dealt with leniently either by way of diversion or discharge. Mr Beattie contended the Judge had made no error in his assessment of the gravity of the offending and it could not be said the potential and uncertain consequences of conviction would be out of proportion to the gravity of that offending.
Mr Ricciotti’s submissions
[23] In his submissions, Mr Ricciotti gave me his version of the background to the offending. He said that the night before the particular incidents the police alleged a vehicle Mr Ricciotti had just bought had been used by someone who had vandalised another car. He said he had been summonsed in relation to that incident but the charge had been withdrawn. In discussing this, he told me that it did seem his car had been involved but he had not been the person driving it. He could not explain
how someone else could have come to be using it.5
[24] Mr Ricciotti said that on the night in question, he had been doing some work on his car trying to quieten it because it had an overly loud exhaust. He spoke of the
police constable harassing him by driving past his address on a number of occasions
5 The Police said in their submissions to the District Court that no charges had been laid in respect of the incident but there was the potential for Mr Ricciotti to be charged with failing to provide details as to the identity of the person who allegedly had been using his car.
although that seemed to be twice within a period of about 15 minutes. He said that, when he took the car from his home to test it, he was stopped by the police constable who he considered was arrogant in dealing with him, particularly in referring to his alleged but denied involvement in what had happened the previous night.
[25] Mr Ricciotti said that, subsequent to this exchange, he had driven away from the scene, passed to the left of the police officer’s vehicle and then gone in front of that vehicle intending to turn right. This manoeuvre had resulted in the police officer putting on his siren and stopping him again. He said that he was not happy at that point and had asked the police officer why the constable was constantly harassing him. He said he told the police officer to get lost. He said the police officer then attacked him and threw him onto the ground, put his knee into his back, handcuffed him and told him he was under arrest. He said his father arrived on the scene at that point to find out what was happening and was pushed by the police officer. Mr Ricciotti said it was the way the police officer dealt with his father that caused Mr Ricciotti to act emotionally and say that, if he did not let his father go, he would put a bullet through the officer’s head. He said he had felt “persecuted”.
[26] Contrary to the summary of facts, Mr Ricciotti denied having made any threat to kill the police officer before the police officer had allegedly manhandled his father. He denied having threatened to kill members of the constable’s family as described in the summary of facts. After he had been arrested, he was taken to the police station and subsequently driven by the police constable back to his home. Mr Ricciotti denied that later, but still in the early hours of the morning, he had driven his car several times past the constable’s home, as claimed by the constable and set out in the summary of facts. He recognised the coincidence in the relatively small town of Waimate of a BMW vehicle, of a similar type and colour to his, being driven past the constable’s home several times in the early hours of that particular morning.
[27] Mr Ricciotti said he was shocked at what he had said to the police officer and the next day had tried to apologise to the police officer and to reassure the police officer that he would not be at risk. He said that having convictions would make it more difficult for him to work as a school teacher, particularly if he was competing for a teaching position with other candidates. He said all he wanted to do was to join
his family who had moved back to Australia and live a quiet life. He emphasised the extent to which he had benefited from counselling which had begun before he was sentenced.
Discussion
[28] The summary of facts, consistent with a statement from the police constable and a civilian witness, provided a different picture of the background to the particular offences.
[29] The summary referred to the police officer initially stopping Mr Ricciotti at approximately 1.30 am in his BMW after he had travelled past a parked police patrol car and accelerated heavily. It said that, after a conversation as to this, Mr Ricciotti had followed the police patrol vehicle and then driven past it on the left-hand side before cutting in front of it, causing the police to stop Mr Ricciotti for a second time due to an unsafe manoeuvre. In this regard, Mr Ricciotti acknowledged he had been issued with a traffic offence notice for an unsafe driving manoeuvre, an offence which he had admitted and in respect of which he had paid the relevant fine.
[30] The summary then referred to Mr Ricciotti getting out of his vehicle, being abusive to the police and claiming that he was being harassed. I note that was consistent with the way Mr Ricciotti described how he felt about how the police were dealing with him.
[31] The summary then referred to Mr Ricciotti approaching the constable with clenched fists and verbally threatening to “smash” him and to his subsequent arrest for threatening behaviour. As a result of this, Mr Ricciotti pushed the constable and there was a struggle.
[32] In this regard, it is significant that Mr Ricciotti was charged with resisting arrest and pleaded guilty to that charge.
[33] The summary referred to Mr Ricciotti, during the struggle, threatening to kill the constable by putting a bullet in his head. This was denied by Mr Ricciotti. The summary referred to Constable Shearer taking Mr Ricciotti to the ground during the
struggle to gain compliance. That was consistent with the way Mr Ricciotti said he had been put on the ground and handcuffed.
[34] The summary then referred to Mr Ricciotti’s father arriving at the scene, as a result of which Mr Ricciotti made several further threats to kill the constable by shooting him and taking his whole family out. Mr Ricciotti denied that he made any threat as to taking the whole family out but agreed that, at this point, he had said he would put a bullet through the constable’s head. Mr Ricciotti acknowledged before me that, when he made the admitted threat, he intended that the constable should take it seriously. He said it was because of this that he endeavoured to tell the constable the next day that he should not in fact feel threatened. In his affidavit in support of his application in the District Court, he had made no mention of this but did say that two weeks after the incident he had gone to the Police Station to apologise to the constable.
[35] The way the summary indicated Mr Ricciotti acted was consistent with the way Mr Ricciotti said he had felt persecuted and was “deeply emotional” at the time. It was also consistent with his having particular personality issues which could cause him to act in this way. In his submissions, Mr Ricciotti acknowledged he had such issues. He referred to the way he suffered from anxiety for which he was on medication. He referred to how, through counselling, he had learnt to transfer what used to be anger into less dangerous emotions and of the need to control his emotions.
[36] Putting to one side those aspects of the summary of facts which were in dispute, I consider the Judge was justified in deciding that the gravity of Mr Ricciotti’s offending would normally have required convictions to be entered.
[37] The Judge was then required to consider the potential consequences of a conviction. He did so.
[38] The Judge had before him information confirming Mr Ricciotti was studying to complete a diploma in teaching. He had a letter from the Teaching Council confirming that, if Mr Ricciotti had a conviction, in seeking to be registered as a
teacher, he would have to provide a full explanation of the incident and circumstances and be able to assure the Council as to his good character and fitness to teach. Importantly, that letter did not establish that a conviction would necessarily be a bar to Mr Ricciotti being registered as a teacher, provided he was able to satisfy the Council as to his good character and fitness to teach.
[39] I agree with the District Court Judge that the requirement for him to do this as a result of having a conviction could not be considered to be out of all proportion to the gravity of the offending with which he had been involved. Given the stresses and demands of teaching and the personality, emotional and anxiety difficulties which Mr Ricciotti has acknowledged and which were evidenced with this offending, he should have to satisfy the Teaching Council that he has dealt with his particular problems and is fit to teach.
[40] Mr Ricciotti explained to me how much he had benefited from counselling which he had started with Mr Brodie, a counsellor to whom he had been referred by the Community Mental Health and Addiction Service in Timaru after self-referring due to anger management concerns. Mr Brodie had confirmed in a letter of 4 July
2016 that he had been working with Mr Ricciotti on his anger and anxiety, that Mr Ricciotti was “a willing participant” and was “making great progress”. The sentence imposed in the District Court would have ensured that such counselling would continue. Through that counselling, and any other treatment or assistance which Mr Ricciotti might obtain, he will have the opportunity to seek the testimonials which the Teaching Council is likely to require to be satisfied that he is fit to teach.
[41] I accept that a potential employer might prefer another candidate for a teaching position over Mr Ricciotti if the potential employer considers there are particular risks associated with Mr Ricciotti’s personality that do not exist with the other candidate(s). That is a risk which Mr Ricciotti may be able to reduce through satisfying the potential employer that he has dealt with all the issues that have resulted in previous offending and now these convictions. The risk that he may not be able to do so is not a risk which I consider to be out of all proportion to the gravity of the offending.
[42] Mr Ricciotti confirmed to me that he holds an Australian passport. A conviction will therefore not impinge on his ability to move to Australia to be with his family once he completes any sentence of supervision.
[43] Mr Ricciotti criticised the Judge for the way he had taken into account previous occasions when Mr Ricciotti had benefitted from police diversion or a discharge. In November 2011, Mr Ricciotti was given police diversion on a wilful damage and theft charge. In February 2013, he was given a formal warning for speaking threateningly following a verbal altercation at a Countdown store. In May
2013, he was given a final warning and suspended from his employment for making threats to co-workers. He resigned and was subsequently served trespass notices on behalf of the employer to stay off their premises.
[44] In April 2014, he was given police diversion on a careless driving charge. In July 2015, he was granted a s 106 discharge without conviction for a common assault. This was in connection with an assault where he punched a male in the head following a dispute over a car purchase.
[45] In Z v R, the Court of Appeal confirmed all aggravating and mitigating circumstances relating to the offending and the offender should be considered by the Judge when considering the gravity of the offence.6 Mr Ricciotti’s offending on 2
April 2016 was the more serious because of prior incidents and his failure to have learnt from those incidents that he needed to control his anger and exercise self- control.
[46] I also noted his expressions of remorse, as referred to in the pre-sentence Department of Corrections advice to Courts, the offer to participate in a restorative justice meeting with the constable and the letter of apology he wrote to the constable. The credit to be given for that apology must, however, be diminished because of the way he sought to explain his actions as being “an expression of frustration” and the result of being “extremely concerned” about the way he alleged the constable had
mishandled his father, and feeling harassed by accusations made by the constable as
6 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
to an alleged incident the previous night and his perception that the constable was out to get him and trying to punish him for that.
[47] The District Court Judge considered the application for discharge in the way he was required to. I am satisfied he made no error in the decision he ultimately came to. On all the information which was before the Court at that time and taking into account the further submissions which Mr Ricciotti made personally to me, I am satisfied the Judge was right to refuse the discharge without conviction.
[48] Mr Ricciotti’s appeal is accordingly dismissed.
[49] Mr Ricciotti is to report to his probation officer within the next 72 hours of receipt of this judgment.
Solicitors:
Gresson Dorman & Co., Timaru
Copy to:
Mark Anthony Ricciotti.
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