Stewart v Police - [2015] NZHC 165

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0001 [2015] NZHC 165

CARMEN STEWART

v

NEW ZEALAND POLICE

Hearing: 10 February 2015

Appearances:

L Johnson for the Appellant
L M Mills for the Respondent

Judgment:

13 February 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 13 February 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Public Defence Service, Auckland. Meredith Connell, Auckland.

STEWART v NEW ZEALAND POLICE [2015] NZHC 165 [13 February 2015]

Introduction

[1] On 27 June 2014, Ms Stewart assaulted her uncle with a wine glass. She pleaded guilty to one charge of injuring with reckless disregard for safety pursuant to s 189(2) of the Crimes Act 1961 and applied for a discharge without conviction. This application was declined on 19 December 2014 and Ms Stewart was convicted and sentenced to 12 months' intensive supervision and 80 hours' community work.

[2] Ms Stewart now appeals against the decision to refuse her a discharge without conviction.

Relevant Facts

[3] On 27 June 2014, following a funeral, Ms Stewart was at a family function at the address of a relative. The victim, Ms Stewart's uncle, was also present.

[4] During the function, Ms Stewart confronted her uncle about why he had not been speaking to her. He told her that it was because of something which had happened earlier and that she should know what that was. She became angry and said "I am going to kill you Grub" and hit him in the face with her wine glass. There was enough force in the blow to shatter the glass.

[5] As a result of the assault, the victim suffered two cuts to his head and neck.

[6] Ms Stewart has two previous convictions, one for assaulting a police officer

(convicted in 1999) and one for receiving stolen property (convicted in 1993).

District Court Decision

[7] Ms Stewart pleaded guilty to one count of injuring with reckless disregard and applied for a discharge without conviction.

[8] In determining the application, the Judge considered the fact that the assault involved the use of a weapon, it was directed towards the head and that the injuries

were relatively serious as well as the threat to kill which accompanied the assault. His Honour concluded that the offending was at least moderately serious.

[9] Against this, the Judge considered the impact on Ms Stewart's application to work for the Department of Corrections. He formed the view that the Department should be allowed to make up its own mind about the consequences of the offending and that the likely consequences for Ms Stewart did not outweigh the seriousness of the offending.

Appellant’s Submissions

[10] Ms Johnson, for the appellant, submits that the Judge overestimated the seriousness of the offending. In particular, the appellant submits that the assault did not include intention to cause harm and that Ms Stewart merely intended to slap her uncle with the glass in her hand, and…

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: [2015] NZHC 165
Decision Date: 13 February 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Carmen Stewart v New Zealand Police was heard on appeal by Thomas J on 13 February 2015. The appellant, Ms Stewart, was convicted for injuring with reckless disregard for safety pursuant to s 189(2) of the Crimes Act 1961, following an assault on her uncle with a wine glass. Ms Stewart had applied for a discharge without conviction, which was declined by the District Court. Ms Stewart appealed this decision, arguing that the offending was not as serious as found by the District Court and that the consequences of a conviction would be out of all proportion to the seriousness of the offence. The respondent argued that the consequences were not out of all proportion to the seriousness of the offending.

The court found that the offending was moderately serious, as it involved an assault to the head with an improvised weapon causing non-negligible injuries. The court noted that Ms Stewart had a brief criminal history, but the violent nature of this offending placed her at medium risk of harming another person. The court also found that the consequences of the conviction, while relatively serious, would not be out of all proportion to the seriousness of the offending. The court concluded that the consequences of a conviction would depend on the view the Department of Corrections took of the matter, and that it was the offending itself that was effectively the issue rather than the fact of a conviction. The appeal was dismissed.

Orders