Stephenson v Police - [2015] NZHC 3101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-274 [2015] NZHC 3101

BETWEEN
RICHARD ANTHONY STEPHENSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 November 2015

Counsel:

W A Steedman for Appellant
M J Hammer and C P Eason for Respondent

Judgment:

8 December 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 8 December 2015 at 12:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Alex Steedman (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

STEPHENSON v POLICE [2015] NZHC 3101 [8 December 2015]

Introduction

[1] Mr Stephenson has been convicted of indecent assault and sentenced to

12 months’ supervision. He pleaded guilty to the charge and he asked Judge G Davis to discharge him without conviction.1 He now appeals the refusal by the Judge to do that.

[2] Mr Stephenson’s concern is that if the conviction stands he might be

deported.

Background

[3] Mr Stephenson is an Indian citizen and came to New Zealand on a student visa in March 2014. He has since completed a Diploma in Business and he has applied for a graduate work visa.

[4] His offending occurred at about 5:40 pm on 11 December 2014, when he was

25 years old. He noticed a 16 year old female walking alone along the road and began following her. He did not know her. He waited while she stopped at a dairy and continued to follow her. When nobody was in sight he approached the victim from behind and grabbed her buttocks firmly with one hand. He released his hold when she pushed him away and he then fled.

District Court judgment

[5] Judge Davis considered whether to discharge Mr Stephenson without conviction.2 He assessed the gravity of the offending, the direct and indirect consequences of a conviction, and whether the consequences of the conviction would be out of all proportion to the gravity of the offending. His Honour considered that a discharge without conviction was not justified.

[6] In summary, Judge Davis found:

1 Police v Stephenson [2015] NZDC 16431.
2 Sentencing Act 2002, s 106 and 107.

(a) the offending was at the moderate end of seriousness; the touching itself had to be viewed in light of the prolonged following of a young victim and the fact that it has had a pronounced effect on her. The victim impact statement showed that she has been frightened since the offending, has suffered panic attacks and considers that Mr Stephenson should not be allowed to go free without a conviction;

(b)the gravity of the offending is reduced because Mr Stephenson has a mental health condition. He was diagnosed with bipolar disorder in India in 2011. However, he had stopped taking treatment prior to the offending. A report prepared by Dr Goodwin, a specialist psychiatrist, said that at the time of offending, he may have been in a hypomanic state which may, if there was a level of disinhibition, have contributed to the offending. Taking this factor into account,…

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 Stephenson v Police

Details

AGLC: Stephenson v Police [2015] NZHC 3101
Case: [2015] NZHC 3101
Decision Date: 8 December 2015

CaseChat Overview and Summary

Mr Stephenson appealed against the decision of Judge Davis to refuse his request for a discharge without conviction. He also appealed against his sentence of 12 months’ supervision. The appeal was heard by Brewer J, who first considered whether the new evidence submitted by the appellant was sufficiently fresh and credible to warrant consideration. The new evidence comprised reports from Dr Goodwin and Ms Visser, an affidavit from Ms Carole Curtis, and a further affidavit from Mr Stephenson. The court accepted the updated reports from Dr Goodwin and Ms Visser, which provided further information about Mr Stephenson’s mental health at the time of the offending. The affidavit from Ms Curtis was also accepted as it provided relevant information on the immigration consequences of conviction. The court rejected the second affidavit from Mr Stephenson, finding it did not provide any new information. In assessing the gravity of the offending, the court found that although Mr Stephenson’s mental health condition was a mitigating factor, he could not be completely exonerated from responsibility for his actions. In considering the consequences of a conviction, the court found that there was a real risk that a conviction would result in Mr Stephenson becoming ineligible for a work visa or liable for deportation. However, the court found that these consequences were not out of proportion to the gravity of the offending and that the task of assessing the consequences of the offending on Mr Stephenson’s eligibility to remain in New Zealand was for Immigration officials. The court dismissed the appeal against the refusal to discharge without conviction but allowed the appeal against the sentence of 12 months’ supervision, substituting a sentence of nine months’ supervision.

The final orders were that the appeal against the refusal to discharge without conviction was dismissed and the appeal against the sentence of 12 months’ supervision was allowed, with a sentence of nine months’ supervision substituted.

Orders