Ross v Police

[2012] NZHC 2269

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-000014 [2012] NZHC 2269

JAMES ROSS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 September 2012

Counsel:         Appellant in person

M A O'Donoghue for Respondent

Judgment:      4 September 2012

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against conviction and sentence.  The essence of the appeal is the submission that Mr Ross should be discharged without conviction.

[2]      The facts as they were recorded by the sentencing Judge were that at about

9 am on 11 August last year Mr Ross was at his home in Waikawa, Picton. A process server arrived to serve documents on him.  The summary of facts recorded that he knocked on the door but that Mr Ross remained inside.  The process server remained at the address attempting to get Mr Ross’ attention for approximately 30 minutes. Mr Ross did go out onto a balcony where the process server explained that he had documents to serve.  Mr Ross refused to take the documents and they were pushed

through the cat door.  The process server made to leave the address when Mr Ross

ROSS V NEW ZEALAND POLICE HC BLE CRI-2012-406-000014 [4 September 2012]

went downstairs, picked up a garden hoe and approached the victim.  There was a slight struggle over the hoe and Mr Ross struck the victim in the stomach.   The struggle continued briefly, and then the victim left.

[3]      That led initially to a charge of assault with a weapon.  That was reduced to one of common assault.  Mr Ross sought a discharge without conviction.

[4]      The sentencing Judge in a careful judgment considered that submission.  He correctly applied the three step process given in the Court of Appeal decision in R v Hughes,[1]  in considering whether a conviction would be out of all proportion to the gravity  of  the  offence  under  s 107  of  the  Sentencing Act  2002.    After  careful consideration of the circumstances he concluded that it would not be out of all proportion and he entered a conviction and ordered Mr Ross to come up for sentence if called upon within the next 12 months.

[1] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

[5]      Mr Ross  has  appealed  against  that  failure  to  exercise  the  discretion  to discharge without conviction.  His appeal is out of time and he requires the leave of this Court to bring the appeal.

[6]      Mr Ross has filed comprehensive written submissions both in support of his application for leave and in support of the appeal itself.  Those submissions contain material which was not squarely before the sentencing Judge and those submissions have been helpful to me.

[7]      As to the application for leave to appeal out of time, Mr Ross says that he was, at the time, struggling to deal with him having been declared bankrupt, that he was being treated medically, and that he needed time to consider his position.  In the circumstances I am satisfied that leave to extend time should be granted and there will be an extension of time.

[8]      I turn to the appeal itself.  Section 106 of the Sentencing Act 2002 permits the

Court to discharge an offender without conviction.   Section 107 provides that the

Court  must  not  do  so  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.

[9]      As the Court of Appeal said in R v Hughes, consideration of that test requires a three step process.  First, identify the gravity of the offending by a reference to the particular facts of the case.  Second, identify the direct and indirect consequences of a conviction.  And, third, determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.

[10]     So the first step is to consider the gravity of the offending.   This was an assault at the lower end of the scale.   That was appropriately recognised in the reduction of the original charge of assault with a weapon to one of common assault. Mr Ross says that he had issued a trespass notice to prevent the process server from entering his property.   That was not a wise step to have taken, to seek to avoid service in this way.  There is no doubt the process server was carrying out his proper task in attempting to serve the documents.  The offending was, however, as I have said, at the lesser end of the scale.  The victim himself recognised that.  In his victim impact statement, he said that he did not receive any injury, the incident had not cost him financially, and he had not been emotionally affected.   He expressed some concern for Mr Ross’ position and he said that he did not want Mr Ross to be punished  for  his  actions.    That  is  a  consideration  to  which  I  have  regard  in considering the gravity of the offending.

[11]     As to the effects of a conviction, Mr Ross raises essentially three matters. First is his ability to secure employment in volunteer work in which he has been engaged in, for what is apparently many years.   Volunteer work overseas might require travel which might be adversely affected by a conviction.  The second matter is his wish to be able to visit his sister and her family in the US.  He fears that a conviction may hinder his ability to travel to the US.  The third matter is he has a concern that a conviction may make it difficult, or impossible, to renew his registration as a psychologist.

[12]     There  is  no  firm  evidence  that  any or  all  of  those  consequences  would necessarily follow from a conviction but cumulatively there must be a concern that a conviction would have some limiting effect.

[13]     So the third step is to consider whether the direct and indirect consequences would be out of all proportion to the gravity of the offending.   Counsel for the respondent has responsibly acknowledged that in the light of the matters raised, and in particular the new matters raised, the case is one where the Court might adopt a merciful approach.  Mr O’Donoghue refers to Mr Ross’ age, the fact that he has no previous convictions, and the unlikelihood of further offending.

[14]     It is to Mr Ross’ credit that he has no previous convictions, and the entry of a conviction at this stage in his life would be a serious matter in itself, quite apart from the consequences which might flow from it.

[15]     In the circumstances, while I consider that the sentencing Judge appropriately considered all relevant factors, in the light of the new matters, which are now before me and which were not in that form before the sentencing Judge, and taking into account the attitude of the Crown to the appeal, I consider that the consequences of conviction would outweigh the gravity of the offending and the appropriate outcome is accordingly that the appeal be allowed.

[16]     The conviction is set aside and in lieu I enter a discharge without conviction.

“A D MacKenzie J”

Solicitors:         Crown Law, Nelson, for Respondent

Copy to:           Mr Ross