S v Police HC Invercargill CRI 2008 425 34

[2008] NZHC 2071

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2008 425 34

S

Appellant

v

POLICE

Respondent

Hearing:         17 December 2008 (Heard at Christchurch)

Appearances: PHB Hall for Appellant

S N McKenzie for Respondent

Judgment:      17 December 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      When the appellant came before the District Court on a charge of common assault, to which he had pleaded guilty, he sought a discharge under s106 of the Sentencing Act 2006.   His application was declined and he was fined $400 and ordered to pay Court costs of $130.  This is an appeal against that conviction and sentence.

The Offending

[2]      During the early hours of the morning of 18 October 2008 the appellant and his female companion were in a Wanaka bar at the invitation of the bar manager (the

S V POLICE HC INV CRI 2008 425 34  17 December 2008

victim) who was a friend of the appellant.   About 5am there was a confrontation between  the  appellant  and  the  bar  manager  about  a  cellphone  belonging to  the appellant’s female companion.  It had been taken by the bar manager who said that he wanted to exchange it for the appellant’s female companion.

[3]      The appellant reacted badly and punched the bar manager in the face, causing him to fall to the floor.   He suffered  a cut to his nose and eye socket but no permanent injuries.   After this had happened the appellant immediately called an ambulance and began tending the bar manager.  When the police arrived (they had been called by the ambulance service) the appellant was co-operative with the police and is described in the police summary as being very remorseful.

[4]      In his victim impact statement the bar manager said that he thought he fully deserved the punch and he took full responsibility for allowing the appellant and his female companion to be in the bar when he (the bar manager) was not in a position to supervise because he was too drunk.  He then stated:

“I support Sam being offered diversion as I know a conviction will affect him considerably in relation to his travels and competing overseas. I think I deserved what happened to me.

I should not have acted in such an inappropriate way towards Sam’s female companion and
I am truly sorry.

It  was  only  through my  poor  actions that  caused  Sam  to  react  as  he  did  and  I  take responsibility for what happened and I hold no anger towards him.”

This impact statement had been prepared by the police who, from the transcript of exchanges between the prosecutor and the Judge, did not oppose the appellant’s application for a discharge under s106.

The Appellant

[5]      He is a professional skier, 22 years of age, with no previous convictions.  He is ranked number one in New Zealand for big mountain skiing and is a member of the New Zealand free ski team.  During the northern hemisphere winter he competes in international events and undertakes promotional work.  He is ranked number 55 in the free skiing world tour.   These activities involve travel to North America and

Europe.  The appellant fears that conviction will put an end to his career because he will not be able to participate in North American events and he also runs the risk of being dropped from the New Zealand ski team.

Sentencing Decision

[6]      Although the Judge accepted that the assault was at the lower end of the scale in terms of assault charges, he nevertheless considered it to be “relatively serious”. Having described the punch, the Judge went on to say:

“[4]     … it was considered by those present that the ambulance should be called and the victim was attended to.  There was limited provocation and this was, in my view, an extreme overreaction. A phone was taken in jest by the victim and offered as a swap for a female who was present. This did not necessitate the reaction given by you.”

Plainly  Mr  Hall  is  correct  in  saying  that  it  was  the  appellant  who  called  the ambulance and there was no foundation at all for the Judge’s comment that the cellphone was taken “in jest”.  Any doubt about that issue has been removed by the affidavit sworn by the appellant’s female companion.

[7]      The Judge continued:

“[5]     There has been an attempt to minimise your actions both through the submissions of your counsel and also the victim impact statement but that statement does not excuse you nor lessen your culpability in my view.  No doubt the victim is aware of your circumstances and I must consider that possibility and the impact of that on him and what he has put in his statement.

[6]       The statement minimises what happened.  The victim is taking full responsibility in an effort to take the heat off you but that is not in line with how the summary reads.  As I have said, the summary sets out that a phone was taken in jest and you overreacted to a suggestion that the phone be swapped for a particular female.  You were not particularly provoked or taunted.”

It is not easy to understand these views which seem to have been based on the premise that the cellphone comment was in jest.   In all the circumstances the bar manager’s remark was plainly offensive.

[8]      Having considered the gravity of the offending the Judge turned to the direct and  indirect  consequences  advanced  by  the  appellant:     restrictions  on  travel; inability  to  remain  in  the  New  Zealand  ski  team;     possible  termination  of

sponsorship;  and possible impact on filming and other aspects of his professional career.

[9]      As to travel, having accepted that there were difficulties with travelling to

Canada, the Judge went on to say:

“[12]      … It is a matter for that country and I do not think that it is appropriate to ask this Court to essentially “usurp” the authority and position of the Canadian Immigration Services.  That is what it is being asked to do time and time again when people submit that they will not be able to travel to Canada if a conviction is recorded and therefore the Court is petitioned not to enter a conviction.  I do not accept that it is a matter for this Court.”

With reference to travel to places other than Canada, the Judge said that he was not convinced that the appellant would not be able to travel to other parts of the world.

[10]     Reference to the suggestion that the appellant may not remain in the ski team caused the Judge to emphasise the word “may”.  He said that it was not definite that the appellant would be removed from the team and that if he was it would be because he had committed an assault and not because a conviction had been entered.  He said that that is because the New Zealand Ski Association would not want members of its team to be people who behaved in that particular way.

[11]     A similar approach was adopted in relation to sponsorship:  it was a matter for the sponsor and not for the Court and, in any event, loss of sponsorship would be a consequence to be expected from this type of behaviour.

[12]     Finally,  the  Judge  rejected  the  submission  that  the  appellant’s  career  in filming and photography of extreme sport would be affected.  His view was that the appellant would be able to travel and to the extent that Canada was a problem he was unable to see why the appellant could not apply for a waiver or dispensation.

[13]     As the Judge saw it, it was not for the Court to hide offending because of the appellant’s  position  as  an  international  sports  person.     He   considered   that information around the offending should be available and “not simply swept under the carpet”.   He did not consider the consequences to be out of proportion to the offending and any difficulties in relation to Canada or sponsorship “must have been

a foreseeable consequence of such behaviour” and could not be considered to be out of proportion.

Discussion

[14]     Section  106  of  the  Sentencing  Act  confers  a  discretion  on  the  Court  to discharge without conviction.  But s107 directs the Court not to discharge without conviction unless it is satisfied that the direct or indirect consequences of conviction would be out of all proportion to the gravity of the offence.

[15]     Yesterday the Court of Appeal released its decision in R v Hughes [2008] NZCA 546 concerning ss106 and 107. It said:

“[41]  … Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.  Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.”

The Court then went on to say at [49] that there is no onus on the offender to establish that the disproportionality test has been made out.   Rather, it is a matter calling for the exercise of judgment.

[16]     There is no suggestion in the judgment that the three step process described in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) is inappropriate. That process involves:

(1) Identify the gravity of the offending;

(2) Identify the direct and indirect consequences of conviction;

(3)Determine whether the direct and indirect consequences would be out of proportion to the gravity of the offending.

For the purposes of this appeal I will adopt that format.

[17]     First, in terms of the gravity of the offending, there is strength in Mr Hall’s submission that the Judge’s interpretation of the cellphone remark and the victim impact statement have permeated his whole assessment of the s106 application.  As I have already said, there was no foundation for the “in jest” interpretation.  To the contrary, it was, as the victim accepts, an offensive remark.  That is not to say that the appellant’s response was justified.  Of course it was not, but it was a spontaneous reaction involving a single punch immediately followed by remorse.

[18]     Contrary to the Judge’s interpretation, it seems to me that the victim impact statement places the whole matter in perspective.  The Judge was, of course, obliged to take that statement into account in terms of s8(f) of the Sentencing Act.  It is not clear why the Judge adopted such a critical view of the victim’s willingness to accept responsibility.  The detailed affidavit from the appellant’s female companion (which was not available to the sentencing Judge) supports the view that it was appropriate for the victim to accept responsibility.

[19]     It is also significant that during an exchange between the police prosecutor and the Judge the police prosecutor appears to have accepted either that the application should be granted or, at the very least, that it should not be opposed by the police.   Obviously that  reflected the prosecution’s  overall  perception  of  the gravity of the offending at that time.

[20]     All of these matters are reinforced by the appellant’s reaction immediately after the event.   He called the ambulance.   He tended to the victim and was co- operative with the police when they arrived.  And the police summary confirms that he was very remorseful.   There is no foundation for any suggestion that the appellant’s remorse was other than genuine.  In my view the Judge has significantly overstated the gravity of the offending.

[21]     As far as the direct and indirect consequences are concerned, it appears that the Judge approached the matter on the basis that the appellant carried an onus.  That can be inferred from his comments that the defendant had to “establish the factors relied on” and other comments to a similar effect.  Given R v Hughes that approach is contrary to principle.  It is enough if the Court is satisfied that there is a real or

appreciable risk that the alleged consequences will occur: Iosefa v Police (High

Court, Christchurch Registry, CIV 2005 409 64, 21 April 2005) at [34].

[22]     As Mr Hall said, when considering the consequences for the appellant it is necessary to take into account that travel and his professional career are inextricably linked.  While the Judge accepted that there would be problems with his entry into Canada, he appears to have effectively sidelined that issue by deciding that it was not a matter for the Court but a matter for the relevant Canadian authorities. Notwithstanding Ms McKenzie’s reliance on the comments of Chambers J in Steventon v Police (High Court, Auckland Registry, A108/01, 2 November 2001), it seems to me that the sentencing Judge has failed to consider the issue at all.  If his approach that it is not a matter for the Court is right then it is difficult to see how any s106 application on the basis of the consequences of a conviction on travel could ever succeed.

[23]     The evidence suggests that there is a real and appreciable risk that there will be problems with entry into Canada.   Information provided from the Bar from Mr Hall also suggests that there could be problems with the USA.  Given the impact of those consequences on the appellant’s career I am satisfied that the Judge’s approach was seriously flawed and that the Court should have been satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[24]     Although other issues were raised by Mr Hall in relation to the consequences, it is not necessary for me to traverse them.

Result

[25]     The  appeal  is  allowed.    The  conviction  and  sentence  are  quashed.    The appellant will be discharged under s106 subject to him paying the Court costs of

$130 and making a donation of $400 to the Salvation Army.

Solicitors:           Checketts McKay, Cromwell for Appellant (Counsel: PHB Hall, Christchurch) Crown Solicitor, Invercargill