Smith v Police - [2020] NZHC 3211

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000337

[2020] NZHC 3211

BETWEEN
RUSSELL WARD SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 December 2020

Appearances:

D J Taumihau & A J Greaves for the Appellant A Al-Janabi for the Respondent

Judgment:

7 December 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 07 December 2020 at 3.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Auckland
Kayes Fletcher Walker Limited, Manukau

SMITH v NEW ZEALAND POLICE [2020] NZHC 3211 [7 December 2020]

Introduction

[1] On 11 September 2018, following a judge-alone trial in the District Court at Manukau, Judge McNaughton found the appellant, Mr Smith, guilty of two charges of male assaults female.1 At that time the Judge indicated that he would look favourably on an application by Mr Smith for a discharge without conviction, if Mr Smith first undertook 50 hours of community work.

[2] Mr Smith undertook a little over 50 hours of community work. He also voluntarily undertook, and completed, an anger management course.

[3] Mr Smith then applied, under s 106 of the Sentencing Act 2002, for a discharge without conviction. On 20 December 2018 Judge McNaughton declined Mr Smith’s application.2 He convicted Mr Smith on both charges, and ordered him to come up for sentence if called upon within six months.

[4] Mr Smith appealed his convictions. Peters J allowed his appeal in part.3 Her Honour held that the Judge had erred in finding the first charge proved. One conviction was therefore quashed. In light of that, her Honour remitted the matter back to Judge McNaughton for reconsideration of Mr Smith’s application for a discharge without conviction.

[5] Judge McNaughton reconsidered Mr Smith’s application on 5 June 2020. The Judge again declined the application.4 Mr Smith appeals from that decision.

Facts

The offending

[6] This summary of the offending is taken principally from Judge McNaughton’s first decision on Mr Smith’s application for a discharge.

[7] Mr Smith and the complainant had been in a relationship, and had lived together, for some years. The first incident on which Mr Smith faced charges occurred

1      Police v Smith [2018] NZDC 17113.
2      Police v Smith [2018] NZDC 26856.
3      Smith v Police [2019] NZHC 2688.
4      Police v Smith [2020] NZDC 18494.

in August 2016. This was the incident in respect of which Peters J held the charge had not been proved.5 I will nonetheless refer to it briefly, because it provides context to the judgment under appeal.

[8] By the time of the first incident Mr Smith and the complainant had ended their relationship, but were living separate lives in different parts of the house that they still shared. There was an argument between Mr Smith and the complainant about money. The Judge found that Mr Smith grabbed the complainant by the shirt and threw her to the floor.6 The complainant struck her head on tiles. She split the skin…

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 Smith v Police

Details

AGLC: Smith v Police [2020] NZHC 3211
Case: [2020] NZHC 3211
Decision Date: 7 December 2020

CaseChat Overview and Summary

The case of Smith v Police, decided by Campbell J in the High Court of New Zealand, concerns Russell Ward Smith's appeal against the District Court's refusal to grant him a discharge without conviction under section 106 of the Sentencing Act 2002. Smith was convicted of two charges of male assaults female, and the District Court had indicated it would consider a discharge without conviction if Smith completed 50 hours of community work. Smith completed 51.5 hours of community work and an anger management course but was denied a discharge without conviction. Smith appealed this decision, arguing that the consequences of the conviction were out of all proportion to the gravity of the offending.

The legal issue in this case was whether the consequences of Smith's conviction for male assaults female were out of all proportion to the gravity of the offence, thus warranting a discharge without conviction under section 106 of the Sentencing Act. The court had to assess the gravity of the offending and weigh it against the consequences of the conviction.

Campbell J, after reviewing the facts and mitigating factors, concluded that the offending was of low gravity due to the absence of a history of violence, the short duration of the assault, and Smith's personal mitigating factors such as his age, employment history, and steps taken to address his offending. The court found that the consequences of the conviction, including significant immigration issues and employment difficulties, were out of all proportion to the low gravity of the offending. Campbell J allowed Smith's appeal, quashed his conviction, and granted him a discharge without conviction.

Orders