Shepherd v Police - [2024] NZCA 640

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA331/2024
[2024] NZCA 640

BETWEEN	CRAIG ALAN SHEPHERD Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 October 2024
Court:	Palmer, Fitzgerald and Grice JJ
Counsel:	L A Scott for Applicant J A A Mara for Respondent
Judgment:	4 December 2024 at 2:30 pm

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal against the refusal to grant a discharge without conviction is declined.
B The application for leave to bring a second appeal against the refusal of permanent name suppression is declined.

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REASONS OF THE COURT

(Given by Fitzgerald J)

Introduction

The applicant, Mr Craig Shepherd, originally faced five charges of indecent assault in relation to four complainants. His defence at trial would have been that the Crown could not prove that he intended or appreciated those aspects of the assaults, and surrounding circumstances, which rendered them indecent.[1] Shortly before trial, the charges were resolved on the basis of Mr Shepherd pleading guilty to four charges of male assaults female in relation to three of the complainants. The fifth charge was withdrawn. Other than removing the facts relating to the fourth complainant, the summary of facts was not amended following the reduction in the charges.
[1]An element of the offence of indecent assault: R v Aylwin [2007] NZCA 458 at [35].
Mr Shepherd subsequently applied to the District Court for a discharge without conviction, under s 106 of the Sentencing Act 2002, and for permanent name suppression. Judge N J Wills declined both applications, convicted Mr Shepherd, and ordered him to pay reparations to each victim for emotional harm suffered.[2]
[2]Police v Shepherd [2023] NZDC 28755 [District Court judgment] at [56]–[57] and [75].
Mr Shepherd appealed against Judge Wills’ decision to decline a discharge without conviction, primarily on the basis that the Judge wrongly assessed the gravity of the offending by reference to the assaults having “sexual overtones”,[3] and by characterising Mr Shepherd’s motivation behind the offending as being sexual. Mr Shepherd says that this was inappropriate following the charges being reduced from indecent assault to male assaults female, the latter offence not containing any element of indecency. The appeal against the dismissal of Mr Shepherd’s application for permanent name suppression was very much tied to the outcome of that appeal, namely by an acceptance that permanent name suppression could only follow a successful appeal against the declined application for a discharge without conviction. In the High Court, Radich J dismissed the appeal against both decisions.[4]
[3]At [17].
[4]Shepherd v Police [2024] NZHC 995 [High Court judgment] at [98]
Mr Shepherd now seeks leave to bring a second appeal against the refusal to grant a discharge without conviction and the refusal of permanent name suppression. If the first application is not granted, Mr Shepherd does not propose to challenge his sentence. We consider the application is properly characterised as being for leave to bring a second appeal against…

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 Shepherd v Police

Details

AGLC: Shepherd v Police [2024] NZCA 640
Case: [2024] NZCA 640
Decision Date: 4 December 2024 at 2:30 pm

CaseChat Overview and Summary

Craig Alan Shepherd sought leave to bring a second appeal against the refusal of a discharge without conviction and the refusal of permanent name suppression. The Court of Appeal considered whether the appeal involved a matter of general or public importance or whether a miscarriage of justice might occur if leave was not granted. The Court found that the sexualised nature of Mr Shepherd’s offending, as reflected in the agreed summary of facts, was properly taken into account by the sentencing judge. The Court also found that there was no error in the sentencing judge’s assessment of the gravity of Mr Shepherd’s offending, and therefore the appeal did not involve a matter of general or public importance. The Court also found that the consequences of a conviction were not out of all proportion to the gravity of Mr Shepherd’s offending, and therefore there was no risk of a miscarriage of justice. The application for leave to bring a second appeal against the refusal to grant a discharge without conviction and the refusal of permanent name suppression was declined.

Orders