Richter v Police - [2021] NZHC 1433

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-7

[2021] NZHC 1433

BETWEEN
BENCE BALAZS RICHTER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 June 2021

Appearances:

L C Ord for Appellant

R E Harcourt for Respondent

Judgment:

16 June 2021

REASONS JUDGMENT OF ISAC J

Introduction

[1] Mr Richter was found guilty of breaching a protection order in the District Court.1 That finding was upheld on appeal.2 He now appeals the decision of the District Court declining to grant a discharge without conviction.3

[2]There are 3 principal grounds of appeal:

(a)The District Court Judge did not take into account all mitigating factors relating to Mr Richter in assessing the gravity of the offending, including matters of good character that were raised in his affidavit in the District Court, and other matters not raised in the District Court but outlined in his affidavit sworn for this appeal;

1      Police v Richter [2020] NZDC 14117.
2      Richter v Police [2021] NZHC 1165.
3      Police v Richter [2020] NZDC 26329. Mr Richter was sentenced to come up if called upon.

RICHTER v NEW ZEALAND POLICE [2021] NZHC 1433 [16 June 2021]

(b)The consequences of a conviction to Mr Richter were not fully advanced in the District Court and, accordingly, the Judge did not have all matters put before him, but the new evidence in Mr Richter’s affidavit sworn in this appeal shows that it will be extremely difficult for him to obtain employment in a senior IT role if convicted; and

(c)On a correct assessment on the basis of full information, the consequences of a conviction are out of all proportion to the gravity of the offending and the test in s 107 is met, and Mr Richter should be discharged without conviction.

[3] After hearing from counsel I allowed the appeal with reasons to follow. I now set out my reasons.

Background

[4] Mr Richter and the victim separated in March 2018.4 Mr Richter found it difficult to accept the end of the relationship and was persistent in his contract with the victim. As a result, a protection order was issued and served on Mr Richter in February 2019, a month prior to the offending.

[5] On 14 March 2019 Mr Richter saw the victim going into Freyberg Pool. A week later, Mr Richter entered the Pool, went to the mezzanine floor and stood for a short time looking down at the victim while she was in a kayaking class.

[6]As was observed in the conviction appeal:5

I agree with the Judge that Mr Richter’s entry into the Pool complex and watching the pool, with the complainant in it, for at least 30 seconds from the mezzanine area was conduct amounting to a breach of the protection order. As the Judge noted, it was deliberate conduct that would make his presence known to the complainant as a form of psychological control. And Mr Richter conceded the existence of the protection…

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 Richter v Police

Details

AGLC: Richter v Police [2021] NZHC 1433
Case: [2021] NZHC 1433
Decision Date: 16 June 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Bence Balazs Richter against the decision of the District Court, which had declined to grant him a discharge without conviction for breaching a protection order. The principal grounds of appeal were that the District Court did not consider all mitigating factors, the consequences of a conviction were not fully advanced, and the consequences of a conviction were out of proportion to the gravity of the offending. The court allowed the appeal, finding that the District Court had erred in its approach to assessing the gravity of the offending and the consequences of a conviction. The High Court concluded that the consequences of a conviction were out of proportion to the gravity of the offending and granted Richter a discharge without conviction under s 106 of the Sentencing Act. The conviction was quashed.

Orders