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…

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: [2012] NZHC 2269
Decision Date: 4 September 2012

CaseChat Overview and Summary

In the case of Ross v Police, the appellant, James Ross, appealed against his conviction and sentence. The appeal centered on the argument that Mr Ross should have been discharged without conviction. The facts of the case were that Mr Ross struck a process server with a garden hoe while the process server was attempting to serve legal documents at Mr Ross' home. Initially charged with assault with a weapon, the charge was later reduced to common assault. Mr Ross sought a discharge without conviction.

The legal issue before the court was whether the consequences of a conviction would be out of all proportion to the gravity of the offence, under section 107 of the Sentencing Act 2002. The court considered the three-step process outlined in the Court of Appeal decision in R v Hughes, which involves identifying the gravity of the offending, identifying the direct and indirect consequences of a conviction, and determining whether the consequences of conviction would be out of all proportion to the gravity of the offending. The sentencing judge had concluded that a conviction would not be out of proportion, but Mr Ross appealed this decision.

The court found that the consequences of conviction, such as the potential impact on Mr Ross' ability to secure employment, travel, and maintain his professional registration, outweighed the gravity of the offending. The court also took into account Mr Ross' age, lack of previous convictions, and the unlikelihood of further offending. The appeal was allowed, and the conviction was set aside in favour of a discharge without conviction.

Orders