T v Police - [2012] NZHC 1426

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN [OR ANY IDENTIFIED PARTS OF THE EVIDENCE].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-134 [2012] NZHC 1426

BETWEEN T Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 11 June 2012

Counsel: J Eichelbaum for Appellant
P Hamlin for Respondent

Judgment: 22 June 2012

JUDGMENT OF POTTER J

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 22 June 2012.

Solicitors: Meredith Connell, Auckland – Philip.hamlin@meredithconnell.co.nz
Chen & Palmer, Wellington – info@chenpalmer.com

Copy to: J Eichelbaum, Auckland – john@eichelbaum.co.nz

T V NEW ZEALAND POLICE HC AK CRI-2012-404-134 [22 June 2012]

Introduction

[1] The appellant, T, entered a guilty plea in the District Court to a single charge under s 194(a) of the Crimes Act 1961 of assaulting his 11 year old son. The offence carries a maximum penalty of two years imprisonment.

[2] On 14 March 2012 Judge Fitzgerald declined an application to discharge the appellant without conviction under s 106 of the Sentencing Act 2002 (the Act).1 He convicted the appellant and ordered him to come up for sentence if called upon within six months.

[3] The appellant now appeals against his conviction and sentence and seeks a discharge without conviction.

The offending

[4] The summary of facts upon which the appellant entered his guilty plea states that his 11 year old son had been fighting with his sister. This was an ongoing problem which had been causing tension in the household. The appellant decided that “enough was enough”. He removed his belt and struck his son around the legs once and then on his shoulders once with the leather tongue section of the belt.

[5] His son received minor bruising to his shoulder and redness and bruising to his left lower leg. He was referred to a doctor on the day following the incident. The doctor’s report records mild superficial bruises in the right scapular area, not tender. Also lower left leg, red mark and superficial bruises, not tender. The doctor further noted that the child had a normal demeanour and was not in pain and did not require analgesia. A subsequent report by the doctor dated 15 December 2011 confirms that the child did not require any medical treatment at the time of the
original consultation.

1 New Zealand Police v T DC Auckland CRI-2011-004-020428, 14 March 2012.

District Court judgment

[6] After referring to the factual background, the Judge noted that the appellant sought a discharge without conviction and that the police were not opposed to that application. He also referred to an indication given earlier, that that outcome (discharge without conviction) was available for consideration upon the appellant completing a programme of counselling and committing no further offences. He noted that the appellant had satisfied the requirements in terms of completing the programme and not reoffending. He said, however, that such an outcome was on the…

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 T v Police

Details

AGLC: T v Police [2012] NZHC 1426
Case: [2012] NZHC 1426
Decision Date: 22 June 2012

CaseChat Overview and Summary

The appellant, T, was convicted of assault by the District Court and sought a discharge without conviction under section 106 of the Sentencing Act 2002. The District Court declined the application and convicted T. T appealed the conviction and sentence. The High Court was required to decide whether the District Court erred in its application of the law in refusing to discharge T without conviction. The appeal focused on the District Court’s assessment of the seriousness of the offending and the consequences of a conviction. The Court of Appeal has held that the test under section 107 of the Act is mandatory and requires the Court to be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The Court must make its own assessment of the evidence and facts in the particular case. The test requires a fact specific inquiry. The offending was serious but at the lower end of the scale. The direct and indirect consequences of a conviction were out of all proportion to the gravity of the offence. The Court exercised its residual discretion under section 106 of the Act to discharge T without conviction. The appeal was allowed. The conviction was quashed. The names of the parties were ordered not to be published.

Orders