SAMUEL JADE PETER THOMSON AND THE KING - [2024] NZHC 3675

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-36

[2024] NZHC 3675

BETWEEN
SAMUEL JADE PETER THOMSON

Appellant

AND

THE KING

Respondent

Hearing: 2 December 2024

Counsel:

C M Andersen for the Appellant J C Collins for the Respondent

Judgment:

5 December 2024

JUDGMENT OF GWYN J

Introduction

[1] Samuel Thomson appeals a decision of Judge Robinson in the Dunedin District Court declining to discharge him without conviction on one charge of indecent assault.1

1 Crimes Act 1961, s 135. The maximum penalty is seven years’ imprisonment.

THOMSON v R [2024] NZHC 3675 [5 December 2024]

Background

The offending

[2] On 25 February 2023 at approximately 10.15 pm Mr Thomson became involved in a violent altercation with a group of male students on Castle Street in Dunedin. Mr Thomson was shirtless and aggressive. Police supervising the Castle Street event arrested him as he advanced on the group. He struggled violently as he was being placed in the Police van.

[3] The indecent assault occurred on the same date. I adopt the Judge’s summary of the indecent assault:2

[7] In summary, the complainant [Redacted] and her two friends, [Redacted], attended a student party at a flat known as the Death Star. That party was also attended by the defendant and his friend Mr Nicholson- Bertanees.

[8] The essence of the prosecution case is that [the complainant] lit a cigarette and was smoking. The defendant came up to her and asked her to share the cigarette. She rejected that request and the prosecution says that the defendant was quite insistent and that during that interaction he was playfully punching her to the shoulder or shoulders, into the chest and also to the sternum. It is also said then that he indecently assaulted her by grabbing her vagina, placing his hand under her skirt, something that is said to have gone on for several seconds.

[9] The defence case, as put through cross-examination, is largely one of denial. The defendant accepts that he approached a group but the defence says that the defendant put his hands on a person’s shoulders, that he did not punch, he did not touch, push or punch about the chest or sternum and that he most certainly did not push or touch the complainant’s vagina.

…

[11] After that, a fight has occurred between the defendant and an unknown party. Police have intervened and on the defendant being placed in a police van the complainant, [Redacted], had made it known to the officer in charge, Senior Constable Woodhouse, that the defendant had indecently assaulted her.

[4] The Judge concluded that Mr Thomson had committed indecent assault in those circumstances.

2 New Zealand Police v Thomson [2023] NZDC 27037 [October decision].

Criminal history

[5]Mr Thomson has no criminal history.

Decision under appeal

[6] On 9 October 2023 Judge…

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: [2024] NZHC 3675
Decision Date: 5 December 2024

CaseChat Overview and Summary

The appellant, Samuel Thomson, appeals a decision by Judge Robinson in the Dunedin District Court, who declined to discharge him without conviction on a charge of indecent assault. The case was heard by Gwyn J in the High Court of New Zealand. The legal issues in this case revolve around whether the Dunedin District Court erred in its application of the three-step test under section 107 of the Sentencing Act 2002 when deciding not to grant Thomson a discharge without conviction. The central questions were whether the gravity of the offence was properly assessed, whether the consequences of a conviction were correctly identified, and if these consequences were out of all proportion to the gravity of the offence.

Gwyn J found that the Dunedin District Court did not materially err in assessing the gravity of the offence, which was deemed relatively low to moderate. However, the High Court considered the consequences of conviction more broadly, including the stigma associated with a sexual assault conviction and its potential impact on Thomson's career progression. The High Court accepted that there were real and appreciable consequences for Thomson's career, as evidenced by the testimonies of two forestry industry managers. Despite this, the Crown argued that the consequences were not out of proportion to the gravity of the offence and that employers could reasonably look past the conviction given Thomson's otherwise good reputation and lack of prior convictions. Gwyn J concluded that the consequences of conviction, both in terms of career prospects and more generally, were out of all proportion to the gravity of the offending. The Court also noted that Thomson poses a low risk of reoffending, particularly in a workplace setting.

The appeal was allowed, and Samuel Thomson was discharged without conviction on the charge of indecent assault under section 106 of the Sentencing Act 2002.

Orders