The Queen v Sexton

[2009] NZCA 282

IN THE COURT OF APPEAL OF NEW ZEALAND

CA104/2009
[2009] NZCA 282

THE QUEEN

v

NIGEL GRAHAM SEXTON

Hearing:23 June 2009

Court:Baragwanath, Randerson and Miller JJ

Counsel:O S Winter for Appellant

M Inwood for Crown

Judgment:3 July 2009 at 10.00 a.m.

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       On 21 February 2007 the appellant and his father Graham Sexton were each involved in various ways on an assault on their neighbour in the vicinity of their respective farms between Foxton and Himatangi Beaches.

[2]       The appellant was convicted of one count of common assault under s 196 Crimes Act 1961 after a jury trial before Judge Atkins QC who sentenced him on 30 January 2009 to a fine of $150.00 and court costs of $175.00.

[3]       The jury acquitted the appellant on a joint charge that, together with his father, he injured the victim with intent to cause him grievous bodily harm.  Graham Sexton was convicted of that charge and sentenced to two years nine months imprisonment.

[4]       The appellant now appeals against his sentence on the basis that the Judge erred in refusing to discharge him without conviction under s 106(1) of the Sentencing Act 2002. 

Background facts

[5]       There had been a history of ill-feeling between the Sextons and the victim.  At about 5.30 pm on 21 February 2007, the victim parked his vehicle on Foxton Beach and walked across the sand dunes to the Sextons’ farm and onto their property.  He did so for the purpose of checking whether the Sextons were using an irrigator on their property.  On returning to his vehicle, his path was blocked by the appellant who told him that he was not leaving until the police arrived.  The Judge accepted that, in doing so, the appellant relied on advice given to him by a police officer that he could detain poachers found on his property until the police arrived.

[6]       The Judge described what then occurred in the following terms:

[8]  You had been at your property and you had seen the victim’s vehicle and waited for him to return to it.  When he did you confronted him, accused him and tried to prevent him from leaving by blocking his path.  In doing so you were taking steps which had been indicated to you as acceptable, apparently by a police officer.

[9]  The victim eventually tried to push past you and you pushed him two or three times, that constituting the offence of assault.  It was not done just the once and it was reasonably forceful.

[10]  You then called your home, spoke with your mother and requested assistance.  You then attempted to hold the victim at the place where things were occurring.  You believing that you had the right to do that for reasons which I have already indicated.

[11]  After a minor struggle the victim evaded you and began walking towards the sea....

[7]       Thereafter, Mr Graham Sexton arrived at the scene on a quad bike in response to the appellant’s call to his mother for assistance.  Mr Graham Sexton then drove the quad bike at the victim causing him moderate injuries including a four inch laceration from the centre of his forehead which bled copiously and required stitching.  While the jury acquitted the appellant of being a party to his father’s offending with the quad bike, the appellant nevertheless remained at the scene during this later (and much more serious) episode.

[8]       Although the appellant claimed the victim was carrying a firearm, the Judge rejected his evidence on that point.  While the Judge accepted that the appellant had received advice from the police that he was able to detain poachers found on his property, the Judge did not accept the appellant’s evidence that he genuinely believed the victim was poaching.

[9]       The Judge also stated:

[32]  ...Even, however, if you had suspected him of being a poacher you knew who he was, the fact that he was there was apparent from markings that would have been made by his vehicle and him on your property, as far as his footprints are concerned, and you could have let him leave if he insisted upon doing so and let the police handle the matter.

The Judge’s approach to sentencing

[10]     The pre-sentence report recommended a sentence of community work and a fine.  The report noted that the appellant was 32 years of age and was married with children.  He had no previous convictions and, in speaking to the probation officer, had accepted that people could not take the law into their own hands.  He acknowledged he should not have reacted in the way he did and was considered to have only a low risk of reoffending. 

[11]     The Judge then recorded his conclusions:

[66]  Nigel Sexton your counsel has applied for the discharge under s 106 of the Sentencing Act.  I take into account the matters raised by Mr Winter in support of that.  Those factors were that you had been advised by a police officer to take a course that was pretty much the course which you did take and that you have no previous convictions, that you have made positive contributions to the community and he submitted that in all of the circumstances the offending was right to the bottom end of the scale.  He submitted that what you did was not much different to what the victim had done to you.

[67]  I accept that your offending falls to the bottom of the scale of this particular charge but I am of the view that the effects of a conviction would not be out of all proportion to the gravity of the offence.  What you did was something that was simply not acceptable and the jury found you guilty of that offence.

[68]  You have engaged in some degree of reflection on what occurred and have expressed some indication of you having reassessed your position to some degree, and I take that into account but overall I am of the view that it would be proper to mark the offence by a conviction but that the appropriate course would be to deal with it by way of a very moderate fine, taking into account the factors that Mr Winter argued in relation to the application for a s 106 discharge.

Submissions

[12]     It is common ground that before a discharge without conviction can be ordered under s 106(1), the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence: s 107 Sentencing Act.  The relevant authorities were recently reviewed by this Court in R v Hughes [2008] NZCA 546. The approach was summarised at [41]:

... 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.

[13]     Mr Winter for the appellant essentially repeated before us the submissions he made before the sentencing Judge.  He particularly emphasised that the appellant was relying upon advice received from a police officer as to his rights in respect of poachers found on his property.  The force of this submission however was somewhat diminished by the Judge’s findings that the victim was not a poacher, was not armed and that the appellant did not genuinely believe the victim was a poacher.  Mr Winter submitted that the appellant took no part in the serious offending committed by his father and we accept that his sentencing is to be approached solely on the basis of the offence of common assault for which he was convicted.

[14]     In respect to questions from the bench, Mr Winter acknowledged that the conviction would not impact adversely upon the appellant in terms of his career or his ability to travel overseas.  He also accepted there was no evidence that the conviction would mean the appellant is unable to renew a firearms licence under the Arms Act.  There were no other consequences of the conviction other than its potential impact upon the appellant’s reputation in the community.  In that respect, there was no evidence of any actual impact.

[15]     Ms Inwood for the Crown accepted that the offending was at the lower end of the scale but nevertheless submitted that the unlawful detention and repeated forceful pushing of the victim warranted a charge under s 196.  She submitted that the jury’s rejection of the appellant’s assertion of self-defence at trial meant that he was at all times the aggressor.  It was his actions which caused the physical contact between them. 

[16]     She submitted it was proper to take into account the surrounding circumstances of the offending, in particular, the failure by either the appellant or his father to render material assistance to the victim once it was clear he was injured.  We think a cautious approach is required to this submission given the appellant’s acquittal on the more serious charge involving injury. 

[17]     However, Ms Inwood is on firmer ground in submitting that the only significant mitigating factor is the appellant’s previous good character.  She submitted he was not entitled to any discount for a guilty plea, had not demonstrated any remorse towards the victim, and had not made any offer of reparation or amends. 

Conclusion

[18]     We are not persuaded that the Judge was wrong to reject the submission that the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offence.  In considering the gravity of the offending, the Judge was right to take into account that the appellant was not entitled to take the law into his own hands.  Although the victim was not entitled to be on the Sexton farm, he was no more than a trespasser who, at the time he was confronted, was leaving the property and returning to his motor vehicle.  The victim was known to the Sextons and he could have been easily located later if necessary.

[19]     While we assess the appellant’s culpability as relatively low, the courts cannot condone people taking the law into their own hands.  A conviction would normally be entered for conduct of this kind which was aggressive, unnecessary and confrontational.  The consequences of a conviction for common assault in this case do not extend beyond those which would ordinarily flow from a conviction of this kind.  In particular, there is nothing to suggest that the appellant will suffer any impediment in relation to travelling overseas or in any other respect.  In these circumstances, there is no basis to interfere with the Judge’s conclusion that the consequences of a conviction were not out of all proportion to the gravity of the offence.

[20]     The appeal is dismissed.

Solicitors:

Winter Woods, Palmerston North for Appellant
Crown Law Office, Wellington