Stipich v Police HC Auckland CRI-2010-404-451

[2011] NZHC 641

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-451

BETWEEN  GRAHAM KEEPA STIPICH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 May 2011

Counsel:         M A Kennedy for Appellant

K Wendt for Respondent

Judgment:      14 June 2011 at 4:00 PM

JUDGMENT OF ALLAN J.

This judgment was delivered by

The Hon. Justice Allan on

14 June 2011 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

Solicitors/Counsel:

M A Kennedy, Auckland, for appellant

Email:   [email protected]

Crown Solicitor, Auckland, for respondent

Email:   [email protected]

Case Officer:    [email protected]

STIPICH V NEW ZEALAND POLICE HC AK CRI-2010-404-451 14 June 2011

Introduction

[1]      On 31 May 2010 the Sentencing and Parole Reform Act 2010 Act came into force.  By virtue of s 6 of that Act, ss 86A to 86I were inserted into the Sentencing Act 2002.   These sections enact what has come to be known as the three strikes legislation.  In s 86A Parliament has listed offences which are considered by it to be of sufficient seriousness to fall under the three strikes regime.  Where, in respect of an offence committed after 31 May 2010, an offender has been found guilty of, or has pleaded guilty to, a listed offence (a serious violent offence) the court is required to give one of three tiered warnings.  The first warning is simply that:  a warning. Second and third convictions for a specified offence carry severe consequences in respect of the loss of parole entitlements and (in the case of a Stage-3 offence), the sentence actually imposed.   The  courts have jurisdiction to give a three strikes warning only upon conviction for a serious violent offence but, where such a conviction is entered, the warning must be given.

[2]      Mr Stipich argues that, having pleaded guilty to indecent assault, he ought to have  been  discharged  without  conviction.    Indecent  assault  is  a  serious  violent offence for the purposes of s 86A.  The appellant says that the offending was minor and  that  to  expose  him  to  the  risk  of  a  Stage-2  warning  in  the  event  of  the commission of a further serious violent offence is to visit upon him a consequence for the present offending which is out of proportion to the gravity of the offence. The Court is therefore asked to consider whether the enactment of the three strikes régime is a matter which ought to bear upon the discretion of the Court to discharge an offender without conviction.

Factual background

[3]      On 28 July 2010, the appellant was in the Strand Arcade, off Queen Street in Central Auckland.  As he walked past the victim, a 19-year-old female, he reached out with his right hand and placed it firmly on her right breast, over her clothing.  He then immediately released his hold, said “I’ll see you later” and walked off.   The victim was shocked, scared and afraid of what else the appellant might do.  She cried

for some time after the offence.  She says that she is still wary about walking through the Strand Arcade in the mornings because she is worried that the appellant might be there.

[4]      The appellant, now 44 years old, has no fixed abode and appears to earn his living, at least in part, by washing car windows at central city intersections.  He has a long list of convictions, principally for dishonesty, drug and alcohol-related offences; importantly, there are two earlier convictions for indecent assault.

District Court sentencing

[5]      The argument for a discharge without conviction was advanced in the District Court before Judge Davis. The Judge identified the leading authorities and discussed the principles relating to discharges without conviction at some length.   He noted that indecent assault was a serious violent offence for the purposes of the three strikes legislation, that a direct consequence was the requirement to administer a first strike warning, and that the indirect consequences were the risk of second and third strike warnings (entailing non-parole outcomes) if the appellant committed future serious  violent  offences.    Judge  Davis  concluded  that  he  was  unable  to  satisfy himself that the consequences of a conviction would be out of all proportion to the gravity of the offending because Parliament had stipulated that offending of this character  must  carry the necessary consequence of  a three strikes  warning.    In reaching that conclusion he indicated that he would derive some assistance from an

appellate judgment: 1

“...  so that  the  courts  dealing with  this in the first instance  could  have guidance as to whether or not it was intended that offences at the lower end of the scale were intended to attract the full force of the three strikes legislation.”

[6]      The Judge accordingly convicted Mr Stipich and gave him a Stage-1 warning. On the charge of indecent assault he sentenced Mr Stipich to 40 hours community work.  The appellant also appeared for sentence on a variety of minor charges upon

which he was either convicted and discharged, or sentenced to concurrent terms of

1 New Zealand Police v Stipich DC Auckland CRI-2010-004-016001, 19 November 2010 at [12].

40 hours community work, with an order for reparation of $15.00 in respect of the theft of a window washing brush.

Discharge without conviction

Legal Principles

[7]      The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002 which respectively provide:

106     Discharge without conviction

(1)       If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)      A discharge under this section is deemed to be an acquittal. (3)     A court discharging an offender under this section may—

(a)       make an order for payment of costs or the restitution of any property; or

(b)       make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)       loss of, or damage to, property; or

(ii)      emotional harm; or

(iii)     loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)       make  any  order  that  the  court  is  required  to  make  on conviction.

(3A)     If the court is considering making an order under subsection (3)(b), it may order a report to be prepared under section 33 as if the court were considering imposing a sentence of reparation.

(4)       Despite subsection (3)(b), the court must not order the payment of compensation in respect of any emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of “victim” in section 4.

(5)       Despite subsection (3)(b), the court must not order the payment of compensation  in  respect  of  any  consequential  loss  or  damage

described in subsection (3)(b)(iii) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

(6)       When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

(7)       Nothing in section 320 of the Injury Prevention, Rehabilitation, and

Compensation Act 2001 applies to sentencing proceedings.

107      Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[8]      The application of these sections was recently discussed by the Court of Appeal in R v Hughes.2    There, the Court noted that, despite the heading of s 107, “Guidance for discharge without conviction”, the provisions of the section are mandatory.   In consequence, no Court may exercise its discretion under s 106 to discharge without conviction unless it is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.  As was said in Hughes:3

…  Section  107  thus  provides  a  gateway  through  which  any  discharge without conviction must pass.  It stipulates a pre-condition to exercise of the discretion under s 106.

[9]      Importantly, the Court also pointed out that a decision as to whether the test under s 107 has been met is not a matter of discretion.  Rather, it is a matter of fact requiring judicial assessment and so is subject to appeal in accordance with normal appellate principles: R v Rajamani.4     In consequence, the approach mandated in Austin, Nichols & Co Inc v Stichting Lodestar applies:5

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower

2 R v Hughes [2009] 3 NZLR 222 (CA).

3 At [8].
4 R v Rajamani [2008] 1 NZLR 723 (CA) at [5].

5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

Court’s assessment of the acceptability and weight to be accorded to the

evidence, rather than forming its own opinion.

[10]   In Hughes, the Court of Appeal confirmed that the criminal law disproportionality test discussed in such cases as Fisheries Inspector v Turner6  and Police v Roberts7 had not been departed from in s 107. The Court said in Hughes.8

In summary, the parameters within which the disproportionality principle operates have not been changed by s 107.    Application of the disproportionality test  under  s  107  requires  consideration  of  all  relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.  Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.

[11]     The appellant does not carry an onus to establish that the disproportionality test has been met.   Rather, in terms of s 107, the Court may discharge without conviction “… if satisfied” that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  As explained in R v Leitch,9  the need to be “satisfied” simply involves the exercise of judgment by the Court; it is inapt to import notions of burden and standard of proof.

[12]     In Hughes, the Court of Appeal confirmed the continuing applicability of the three-step approach suggested in Turner and in Roberts:

(a)       Identification of the gravity of the offending by reference to the facts of the particular case;

(b)      Identification of the direct and indirect consequences of a conviction;

(c)       Determination  of  whether  the  direct  and  indirect  consequences  of conviction  would  be  out  of  all  proportion  to  the  gravity  of  the

offending.

6 Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA).

7 Police v Roberts [1991] 1 NZLR 205 (CA).
8 At [41].

9 R v Leitch [1998] 1 NZLR 420 (CA) at 428.

[13]     It is not essential that the Court be satisfied that the identified direct and indirect consequences would inevitably or probably occur.   It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.10

[14]     It is necessary to consider whether, in the light of the gravity of the offending and  the  nature  and  seriousness  of  the  consequences  of  the  offending,  the consequences of a conviction would be out of all proportion to the gravity of the offence.  In the course of the necessary assessment, all of the facts of the individual case must be considered.  But the words “out of all proportion” suggest an extreme

situation that speaks for itself: Roberts.11

[15]     In determining the gravity of an offence for the purposes of s 106 of the Sentencing Act, it is necessary to take into account both aggravating and mitigating factors.  The latter will include such matters as the existence of a guilty plea, any expression of remorse, an offer of amends and the Court’s assessment of how likely it is that the offender will re-offend.12

Discussion

[16]     It is convenient at the outset to describe the scheme of the three strikes legislation.  Section 86A of the Sentencing and Parole Reform Act 2010 lists some

40 offences, described as “serious violent offences”

[17]     Section  86B  provides  for  Stage-1  offences.    When  a  court  convicts  an offender of a Stage-1  serious  violent  offence,  it  must  warn the offender of the consequences if he or she is convicted of any serious violent offence committed after the warning.  The sentencing Judge must record the fact that the offender has been so warned.  The offender must also be given written notice of the warning, setting out the consequences if he or she is convicted of any serious violent offence committed

after the warning is given. There are no other consequences of a Stage-1 offence.

10 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34] and Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007.

11 Roberts, above n 7.

12 Delaney v Police HC Wellington CRI-2005-485-28, 22 April 2005.

[18]     Section 86C provides for Stage-2 offences.  A Stage-2 offence is a serious violent offence committed by an offender at a time when the offender had a record of a first warning.   Upon conviction for a Stage-2 serious violent offence, the court must warn the offender of the consequences if he or she is convicted of any serious violent offence committed after that warning, and record that the offender has been so warned.   Moreover, if the sentence imposed on the offender for any Stage-2 offence is a determinate sentence of imprisonment, the court must order that the offender serve the full term of the sentence.  The result would be that any long-term

sentence must be served without parole,13  and any short-term sentence  must be

served in its entirety.14

[19]     Stage-3 offences are provided for in s 86D.  That section, like s 86C, applies to all serious violent offences other than murder. A Stage-3 serious violent offence is an offence committed by an offender at a time when he or she had a record of final warning, that is, a warning for a Stage-2 offence.  An offender who is committed for trial for a Stage-3 offence must be committed to the High Court for trial and only that Court, or the Court of Appeal or the Supreme Court on an appeal, may sentence such an offender for a Stage-3 offence.

[20]     Upon conviction for a Stage-3 offence, other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for that offence, and the offender must serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.

[21]     The scheme of the Act is immediately discernible.  A Stage-1 offence simply attracts a warning of the consequence of committing one or more further serious violent offences.  Only at Stages 2 and 3 do those consequences, severe as they are, actually result.

[22]     Against that statutory background, Ms Kennedy submits that although a first strike conviction incurs only a judicial warning and a record of that warning, it

13 Notwithstanding s 86(1) Parole Act 2002.

14 Notwithstanding s 84(1) Parole Act 2002.

nevertheless sets in motion the three strikes regime under which Mr Stipich, in terms of his conviction history and offending proclivities, is particularly vulnerable.  She maintains that the appellant should not be deprived retrospectively of the protection that a first offender for the same offending would have under s 107.  It is submitted that  although  the  appellant’s  previous  record  is  poor  (and  includes  two  earlier indecent assaults), to convict him now will be to elevate him immediately to vulnerability to a Stage-2 warning by reason of his previous record.

[23]     As I understand it, the argument is that, had this offence been the appellant’s first offence, he would have been able to rely on his clean record in support of a discharge application.  But because he has a long list of previous convictions, he is thrown back on the argument that he ought to be discharged for this particular offence by reason of the three strikes consequences.  Put another way, the appellant’s argument is that this offending was at the lower end of the indecent assault scale, that in the light of the three strikes regime a first offender might have been able to obtain a discharge without conviction for offending such as this, and that the appellant ought, notwithstanding his previous record, similarly to be entitled to seek a discharge.  To refuse it, would be effectively to expose him to a Stage-2 warning and its consequences simply by reason of his prior record.

[24]     It  must  be  said  at  the  outset  that  there  is  an  air  of  unreality  about  the appellant’s argument.  He will be vulnerable to the three strikes regime only if he commits a serious violent offence in the future.  In an unsworn affidavit, he says that he has resolved to stop drinking alcohol, to find a permanent abode, and to comply with the law.   If that is his position, then the occasion for a Stage-2 warning will simply never arise.  But, even if he does commit further offences, the likelihood is that they will be minor offences of the type listed in some profusion in his previous record.  None (save for the indecent assaults) constitutes a serious violent offence. On the material before the Court, it appears that the risk of prejudice arising from exposure to a Stage-2 warning and its consequences is low.

[25]     Quite apart from that consideration, the appellant is not entitled simply to put to one side his previous record, as he seeks to do.  As was observed by Miller J in

Delaney,15 a discharge may not be appropriate, even for minor offences where repeat or persistent offending is involved.  Further, although this was not the most serious of indecent assaults, it was bad enough to cause significant distress to the victim who became, without warning, the subject of a sexual assault at a time and in a place where she ought to have been perfectly secure.  It is that offence which has exposed the appellant to the three strikes legislation, and not his previous record.

[26]     Further,  as  matters  currently stand,  the  direct  result  of  the  conviction  is limited to a Stage-1 warning which carries no direct practical consequences.   It is correct that an indirect consequence is that he will be liable to a Stage-2 warning and its implications if he commits another serious violent offence.  But he says he will not offend again.   In reality, his counsel’s argument is based upon the assumption that the appellant is his own worst enemy and that, despite his promise not to re- offend, he cannot be trusted.   A party in that situation is entitled to very limited sympathy.  It might well be thought that the most effective deterrent for the appellant will be his exposure to Stage-2 consequences if he re-offends.   Indeed, that is the principal purpose of the amending legislation.

[27]     I accept that there may well be a stronger argument for a discharge where an offender is facing the prospect of a Stage-2 or even a Stage-3 warning where the offence in question falls at the low end of the spectrum of serious violent offending. There, it may be possible to advance a case for a discharge on the footing that the gravity of the offending is far outweighed by the direct consequences.  But that is not this case.

[28]    Ms Kennedy referred the Court to Mohammed v New Zealand Customs Service.16   There, Potter J held that there was a real and appreciable risk of direct and indirect consequences that outweighed the gravity of the offending.  Mr Mohammed was a prospective pilot convicted of importing objectionable material.  It was held that there was a substantial risk that a conviction would impact upon his ability to fly

to foreign jurisdictions, a matter inextricably linked with his prospective career.

15 Delaney, above n 12.

16 Mohammed v New Zealand Customs Service HC Auckland CRI-2008-404-56, 29 May 2009.

[29]     That is an example of a case in which identified employment prospects were at stake.  Similar issues are routinely considered by the Courts.  Two similar recent cases where employment was at risk, but a discharge was refused on appeal, are: Oliva v Police,17and Modise v Police.18    It is not suggested that Mr Stipich’s employment prospects are likely to have been affected by his present conviction.

Conclusion

[30]     Every application for a discharge must turn on its own facts.   In no sense, therefore, can this case be regarded as a precedent.  It will, in my opinion, be a very rare case in which the court will grant a discharge application simply in order to avoid giving a Stage-1 warning.   It was certainly not appropriate to do so here. Judge Davis was right, in my view, to conclude that a discharge was not a proper sentencing response.  But I stop short of finding, as he appears to have done, that the three strikes regime constitutes an implied, inexorable direction by Parliament to

refuse a discharge for any serious violent offence.19  As the learned authors of Adams

on Criminal Law have noted, there may, notwithstanding the legislation, be room for a discharge in a given case.20

[31]     But  this  is  not  such  a  case.    There  is  no  basis  for  a  discharge  without conviction here. The appeal is accordingly dismissed.

...............................................

C J ALLAN J.

17 Oliva v Police HC Auckland CRI-2010-404-86, 22 June 2010.

18 Modise v Police, HC Auckland, CRI-2010-404-514, 25 March 2011.

19 At [11].

20  Bruce Robertson (ed) Adams on Criminal Law (looseleaf Brookers ed) at [SA86A.03] where it is noted: “The inclusion of the offence of indecent assault (punishable by a maximum penalty of 7 years’ imprisonment under s 135 Crimes Act 1961) covering a very wide range of offending, has the potential to affect both the prosecution decision whether to warn or charge in a case falling at the bottom of the spectrum of seriousness, and the judicial decision whether to discharge the offender without conviction under s 106 following a guilty plea or a finding of guilty.”