Strickland v Police

[2013] NZHC 2704

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000097 [2013] NZHC 2704

GUY LEO STRICKLAND

v

NEW ZEALAND POLICE

Hearing:                   17 October 2013

Counsel:                  M J Callaghan for Mr Strickland

K J Basire for the Respondent

Judgment:                17 October 2013

JUDGMENT OF PANCKHURST J

[1]      On 9 May the appellant, Guy Strickland appeared in the District Court and entered  pleas  of  guilty  to  charges  of  disorderly  behaviour  and  possession  of cannabis.  He was represented by the duty solicitor.  Judge Macdonald heard the case and entered a conviction and imposed fines of $150 on each charge, together with Court costs.

[2]      No  application  for  a  discharge  without  conviction  was  made,  nor  was diversion discussed in open Court.  The issue raised by the present appeal against conviction is whether, effectively, the clock can be turned back and I can consider the case afresh in relation to, in particular, a discharge without conviction.

[3]      The appellant, who appears today, is 17 and a half years of age.  He is a high school student in year 11.  He will leave school at the end of the year and prior to these convictions being incurred he had commenced the process to gain entry into

the New Zealand Army.  He has no previous convictions.  I note that the notice of

STRICKLAND v NEW ZEALAND POLICE [2013] NZHC 2704 [17 October 2013]

appeal was not filed until 1 September 2013, and accordingly that it is out of time, a matter to which I will return shortly.

[4]      The trigger for the filing of that notice of appeal was an exchange of emails between the appellant and a person in the army.   He was in the process of being assessed as to his suitability for acceptance to join the New Zealand Defence Force. He revealed the fact of the convictions entered in May.  The response was an email in which he was told that this would derail the process then underway, and that at the very least, there would be a stand-down period of 12 months before he could be reconsidered for admission to the army.

[5]     Apparently, the policy is that previous convictions do not automatically disqualify entry, but there must be a stand-down period, as it is termed, of 12 months prior to the application under consideration, during which no convictions have been entered.

[6]      Having received this advice, Mr Strickland retained counsel, promptly filed a notice of appeal and has advanced the matter in this Court on the basis of affidavit evidence concerning the consequences for him of these convictions.

[7]      The offences were committed on 4 May 2013, five days before the relevant Court appearance.  At 11.30 pm in Wilsons Road the appellant was involved in an incident with youths in a van.   He was on his way home having spent an evening with a friend.  The van pulled up, but its occupants were intending to speak to some girls who were in the vicinity.  Nothing came of that.  The appellant approached the van carrying his skateboard and asked whether he could have a lift home.   The occupants said “no”.  The appellant reacted, raised his skateboard in a threatening manner and made some comments.  There is some dispute as to the exact nature of what he said, but I cannot see that the distinction which is contended for and which was mentioned in the District Court makes any difference.  The police arrived.  Mr Strickland was taken into custody and a subsequent search revealed that he was in possession of .8 of a gram of cannabis.

[8]      In my experience this would have been a classic case for diversion.  Only in the last few minutes has it been revealed that diversion was considered by the police. An officer telephoned Mr Strickland a few days after the event to discuss this aspect with him.   A report to which Ms Basire has referred contains observations to the effect that the appellant was ineligible for diversion because his attitude in relation to the offending was inappropriate.

[9]      As I understand it, the officer considered that Mr Strickland still held views in relation to the occupants of the van and had not moved on from what was a silly incident in the first place.  Accordingly, when the matter was called in the District Court a few days later, Mr Strickland’s name was not on the list of offenders who might be eligible for diversion. The duty solicitor did not raise with the appellant the possibility of  a  discharge  without  conviction  and  that  aspect  was  not  therefore mentioned to Judge Macdonald.

[10]     Mr Callaghan has advanced the appeal on the basis that I should quash the conviction and either remit the matter to the District Court so that diversion can be reconsidered or, alternatively, that I should consider the case by reference to s 106 and 107 of the Sentencing Act.  In my view, the alternative option is preferable.  Put shortly, enough is enough.   This case has already seen the light of day on two occasions in two separate Courts.

[11]     I have raised with counsel whether the appeal is governed by the Summary Proceedings Act 1957 or the Criminal Procedure Act 2011.   I understand it to be common ground it is the former.   Section 121(3)(b) provides as a ground for overturning a sentence that “substantial facts relating to the offence or the offender were not before the Court imposing sentence”.  I note there is no comparable ground provided in the new Act. To my mind, the present is a classic case for the application of that subsection.  Judge Macdonald simply did not have the benefit of the further information which is before me.

[12]     Accordingly,  I  turn  to  s  107  of  the  Sentencing Act.    It  provides  that  a discharge without conviction may be appropriate where the nature of the offending is such that the direct or indirect consequences of a conviction are out of all proportion

to the gravity of that offending.  I agree with Mr Callaghan that the gravity of this offending is relatively slight.  This is an offence of disorder, coupled with possession of cannabis.  These are offences in relation to which, for a first offender of this age, the entry of a conviction would ordinarily exercise the mind of a District Court Judge - provided of course the issue was raised.

[13]     As to the consequences, I agree with Ms Basire, it is by no means clear that Mr Strickland’s path into the army is closed.  Nonetheless, at the very least he will be subject to a 12 month stand-down period, and a seamless process of his leaving school and entering the army will no longer be available.   It could be that if the convictions remain, there will be even more serious consequences than simply a delay.    Whichever  is  the  case,  in  my  view,  even  a  stand-down  period  is  a consequence which is out of proportion to the gravity of these particular offences.

[14]     For these reasons, I am satisfied that the appeal against conviction should be allowed.   Leave to appeal is granted.   The two convictions are quashed and accordingly the sentence which was imposed as well.   Given Mr Strickland’s circumstances the order for discharge is made subject to one condition, namely that he is to pay Court costs of $100, a nominal amount, but sufficient in my view to mark the offending.

[15]     Mr Strickland, I think that young people in your situation are entitled to one chance, and you have just had it. You may not get a second chance like this, so make the best of it.

Solicitors:

M J Callaghan, Christchurch

K J Basire, Christchurch