Thomas v Police HC Auckland CRI-2011-404-242

[2011] NZHC 1418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-242

MARIAN THOMAS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 September 2011

Counsel:         B Murray for the Appellant

N Wilde for the Respondent

Judgment:      31 October 2011 at 12:00 PM

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 31 October 2011 at 12:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr B Murray, Vallant Hooker & Partners, Solicitors, Auckland

Ms N Wilde, Meredith Connell, Office of the Crown Solicitor, Auckland

THOMAS V NEW ZEALAND POLICE HC AK CRI-2011-404-242 31 October 2011

[1]      Ms Thomas appeals against her conviction in the District Court, following a defended hearing, on a charge of wilful damage.[1]     She also appeals against the Judge’s rejection of her application to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.[2]

The facts

[1] Police v Thomas DC Auckland, CRI-2010-004-022269, 2 June 2011, Judge C J Field. Judgment following defended hearing.

[2] Conviction and sentence: 7 June 2011.

[2]      Ms Thomas’ home is on a cross-lease title shared with one other property.  At the date of the events leading to the charge against Ms Thomas the other property was owned by Dr and Mrs Hill.   Ms Thomas’ house is down a driveway.   The driveway runs down one side of the house owned by the Hills.   At one point, between the driveway and the Hills’ house, there is a narrow garden.  The part of the garden in question, together with all of the driveway, is within Ms Thomas’ exclusive use area under the cross-lease.  The eaves of the Hill house also extend across the boundary.  As a consequence, when windows are opened on this side of the Hill’s house, the windows extend into Ms Thomas’ exclusive use area.

[3]      The boundary encroachment had led to difficulties.  These were described by the Judge as follows:

[4]       There had been some argument about whether the complainant [Dr Hill] was entitled to tend the garden immediately below the windows and this has lead [sic] to, as I understand it, considerable discord between the parties, it appearing in the end that the defendant was quite correct legally in her stance that the area immediately below the eaves of the house and the garden were her space.  This is a highly unusual situation and one perhaps cannot blame the complainant for his view that anything under the eaves was his property but in this it would appear that he is wrong and the defendant is right.

[5]       This has been but one of a series of issues between the complainant’s family and the defendant.   It has lead [sic], apparently, to considerable correspondence, letters and the involvement of lawyers over the years that these people have been neighbours.  Doctor Hill regarded the attitude of the defendant as being completely unreasonable in that she did not want him to open the windows on that side of the house because it infringed her airspace. I am satisfied indeed that the word “airspace” was used by the defendant in

the course of their discussions but, as I have said, she is apparently quite right legally in prohibiting Doctor Hill from opening his windows.

[4]      The Judge’s statement at the end of [4] was based on the evidence of a lawyer with expertise in these matters.   This evidence was to the essential effect that Ms Thomas was right; anything extending beyond the vertical wall of the Hills’ house was, in essence, an encroachment into Ms Thomas’ exclusive use area.

[5]      Up to around September 2010 windows in the Hill house which would have extended across the boundary had not been opened.  Dr Hill said that he had not been able to open them, because they were stuck shut, and Ms Thomas had declined to give permission for a contractor to go onto her property to deal with that problem.  In September 2010 there were tenants in the Hill property while the Hills were away for a short period.  The tenants managed to get a window open.  This led to letters from Ms Thomas to the tenants and to the Hills asking that the window be shut and kept shut.   The window apparently remained opened.   The Hills had returned to their home by around December 2010.  On 10 December 2010 Ms Thomas wrote again to the Hills, referred to a number of background matters and said, amongst other things:

Please, therefore, kindly, keep those windows of your home, alongside my driveway, CLOSED AT ALL TIMES.  As you are aware, the side of your home, for a few metres, ACTS AS A BOUNDARY BETWEEN YOUR PROPERTY AND MINE, i.e. NO BOUNDARY WOULD HAVE WINDOWS THAT OPEN ON TO ANOTHER PERSON’S PROPERTY!! Therefore, your compliance, is requested, keeping those windows closed at all times.

[6]      On  12  December  2010  the  window  was  open.    Ms Thomas  was  in her driveway.   She went across to the window with a small broom that she had been using.  The window is well above head height.  She reached up to the window with the broom to attempt to shut it.  How she went about this was a matter of dispute between Ms Thomas and Dr Hill in the evidence each of them gave.  This evidence was summarised by the Judge as follows:

[11]      The evidence of Doctor Hill is that he saw from the corner of his eye the defendant approaching the window holding a broom.   She was in a particularly agitated state and she started hitting the window using the broom like a hammer holding it above her head very close to the window.  She was hitting it hard enough to cause a loud noise and broke the glass.  He said that she was hitting not only the wooden frame of the window but also the glass pane.   The window broke on the third or fourth blow although she struck

other blows after that. The window broke and as I understand it he said there was damage to the pane below it as well although that has not been the subject of a charge.

…

[13]     … The defendant gave evidence and said that yes indeed she did attempt to close the window with the use of the broom but it was rather a pushing at the window frame with the bristles of the broom and the [sic] perhaps tapping it to ensure that the window was shut.   She denies deliberately striking the window in a manner described by Doctor Hill.

The judgment on the charge of wilful damage

[7]      The relevant statutory provisions in s 11 of the Summary Offences Act 198 are as follows:

11        Wilful damage

(1)       Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who intentionally—

(a)      Damages any property; or

…

(2)       For the purposes of subsection (1) of this section, a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right.

[8]      The Judge’s conclusion was as follows:

[14]     In assessing the evidence given I have listened carefully to it and I have taken due note of the unhappy relations between these families in the events leading up to the breaking of the window.  The defendant maintains that she was within her rights to close the window or require it to be closed, it in fact amounting to a nuisance on her property.  It is difficult to see with respect how that could be but she maintains and honestly believes, I find, that she was within her rights to insist that the window be closed and if it were not closed voluntarily then to close it herself.

[15]     The issue here really is just how she came to do that and how the window came to be broken.   I do not find that she set out to deliberately damage the window but for the purposes of the charge a person does an act intentionally if they do  it intentionally or  recklessly and  without lawful justification or excuse.

[16]     Now  the  Act  [sic]  here  was  done  intentionally  I  find.     She intentionally struck the  window with  sufficient  force  to  break the  pane. There was no lawful justification or excuse for attempting to close the window in that way and this is one of the issues I am required to determine.

She struck the window with sufficient force to break the pane.  I find that she did in fact strike the pane but even if she had not struck the pane and struck the surrounding area that was with sufficient force to break the window.  She must have known that that was going to be the consequence of striking the window in the way that she did.  I find that in these circumstances she did intentionally damage the window the property of Mr Hill.

[9]      The preceding paragraphs from the judgment appeared, at the conclusion of [16], to record the Judge’s reasons for finding the charge proved.  He then turned to consider a separate charge under s 32 of the Policing Act 2008 of failing to comply with a direction to supply fingerprints.  This charge was dismissed.  Having recorded his conclusions on that separate charge, and dismissing it, the Judge then said:

[20]      … I do however, find that the defendant struck the window knowing at the time that she struck it that the glass was liable to break and continued in that exercise regardless.  I find that information proved.  I will not at this point however, enter a conviction.

The judgment on the s 106 application

[10]     It is apparent that the Judge did not immediately enter a conviction because of an application for Ms Thomas to enable written submissions to be prepared and presented.  This occurred five days later.  The Judge firstly directed himself to s 107 of the Sentencing Act 2002, which is as follows:

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.

[11]     As to the gravity of the offence the Judge said:

[3]       In relation to the gravity of the offending, it was at the lower end of the scale.   I note the prosecutor’s submission that it has a high degree of culpability and recklessness.  I do not think I could pitch it at quite that level. It is, after all, as counsel puts it, a cracked window occurring in the context of a longstanding and heated dispute between neighbours so it is my view that it is at the lower end of the scale so far as that is concerned.

[12]     As to the consequences of a conviction for Ms Thomas the Judge said:

[4]       The Court must then consider the consequences of a conviction. The defendant is a lady of 67 years.   She has no previous convictions and the consequences of a conviction here, her counsel submits, would for her be

quite dramatic.   It would have a psychological effect on her and whilst counsel  did  not  use  the  expression  I  think  he  intended  to  say  that  a conviction would rub salt in the wounds already existing as a result of the neighbour dispute and my findings of fact at the defended hearing.  Counsel submits that the defendant does not need more than what has occurred over the course of her arrest and these proceedings to have any effect that the Court might properly consider that it should have.

[5]       In terms of the consequences therefore they really amount to the effect of a conviction in itself on the defendant.  There are no consequences in terms of employment, travel or other matters that are quite commonly raised in applications of this kind.

[13]     The Judge then referred to a victim impact statement “setting out some of the history of the dispute between Ms Thomas and the Hills’ [sic]”.  A victim impact statement may have relevance in assessing the gravity of the offence and the Judge recognised the need to assess the victim impact statement on that basis.  The essence of the Judge’s conclusion was that the victim impact statement did not materially assist him in assessing the gravity of the offence.  It was essentially concerned with historical matters and in this context the Judge observed that both parties were “probably equally affected” by the difficulties in the past.  In respect of the gravity of the offence, in relation to the victim impact statement, the Judge succinctly observed: “It is after all, a broken window.”

[14]     Assessing the matters overall the Judge was not satisfied that a conviction would be out of all proportion to the gravity of the offence.  He said:

[8]       …  Certainly  a  conviction  on  anyone,  even  a  person  of  the defendant’s maturity is something that is best avoided.  However, I do not see that entry of a conviction would have the disproportionate effect that the law contemplates.

Discussion

[15]     I am satisfied that the Judge was in error in concluding that a conviction would not be out of all proportion to the gravity of the offence.  Having reached a different conclusion from the Judge on that threshold test under s 107, I am also satisfied that the discretion that then is vested in me on appeal should be exercised in favour of the appellant to discharge her without conviction.   Because of this conclusion I do not consider it necessary to determine the appeal against the Judge’s

conclusion that the offence of wilful damage was established.  It will nevertheless be necessary to make some reference to the elements of the charge against Ms Thomas and some of the evidence in that regard.

Gravity of the offence

[16]     The Judge described the offence as being “at the lower end of the scale”. This was, at least in part, in response to a surprising submission for the informant that there was “a high degree of culpability and recklessness”.  In my judgment, this offending was at the lowest end of the scale for offences of wilful damage contrary to s 11(1)(a).  This is demonstrated by noting two basic facts which are not in issue: Ms Thomas was lawfully entitled to close the window; when she was doing this a

single pane of glass cracked.[3]

[3] The Judge said the glass, or the window, was “broken”. This is correct in the sense that the glass was cracked. No glass fell out of the window frame.

[17]     The  offence  can  be  committed  in  two  ways;  if  property  is  intentionally damaged  or  if  it  is  recklessly  damaged  (and  in  either  event  without  lawful justification or excuse or claim of right).  The charge was found to be established on the basis of recklessness.  This by itself put the offending into a lower category of seriousness or gravity.   The evidence which supported the Judge’s conclusion that there was recklessness is borderline between criminal recklessness and negligence, with the latter not involving any criminality.

[18] The Judge’s initial conclusion that there was recklessness was at [16] of his judgment (recorded at [8] above). The Judge said that Ms Thomas “must have known” that a broken window would be the consequence of her action. This is a misstatement of the legal test for recklessness. The prosecution must prove that the defendant actually foresaw the risk. This requires more than establishing that the defendant “must have known” that there was the relevant risk.[4]     The test in this

[4] R v Tipple CA217/05, 22 December 2005 at [27]-[35] (a discussion of the leading authorities on the elements of recklessness in the criminal law). And specifically in relation to s 11 of the Summary Offences Act see: Smith v Police HC Auckland, AP155/87, 19 February 1988, Barker J at p 5-9; Gallagher v Police HC Auckland, AP108/98, 25 August 1998, Potter J at p 7 ff.

respect is a subjective one.  There is an objective element: “The risk must be one

which  it  is  in  all  the  circumstances  unreasonable  for  [the  defendant]  to  take.”[5]

However, this objective element is not what was referred to in the sentence at [16] of the judgment under appeal.

[5] R v Stephenson [1979] QB 695 (EWCA) at 703, cited in R v Tipple supra, at [32].

[19]     The following facts were established by the evidence:

(a)      The window was well above Ms Thomas’ head height, so the use of a broom to try and push it shut was understandable.

(b)      The window was stiff.

(c)      As earlier noted, the glass only cracked.  The Judge said “there was sufficient force to break the window”.  It could equally be said that the force used was sufficient to crack the glass but not sufficient to smash it out of the frame.  That is an accurate statement of the result but of course has quite different emphasis.

(d)Dr Hill in fact accepted that it was possible that the glass cracked because the window frame twisted.

(e)       Ms Thomas said, in cross-examination:

I actually was closing the window and it cracked, I was not able to predict I’m sorry, I was not able to predict that it was going to crack and it was clearly something that happened that I had not any control over.

There was no challenge to her in respect of this evidence.

[20] Had the Judge’s conclusions on the question of recklessness been confined to the discussion up to [16] I would have assessed the appeal against the finding that the charge was proved. I have refrained from doing so not only because of my conclusion under s 106, but also because of the further observation by the Judge at [20]. The statement there is, with respect, an accurate distillation of the essential

ingredients of recklessness for the purposes of this case.   I also recognise that the

judgment was an oral one delivered at the conclusion of the defended hearing and refined  analysis of all of the evidence and of the precise legal elements is not required.  The point of this discussion is, of course, to explain my conclusion that the gravity of the offending by Ms Thomas was at the lowest end of the scale.

[21] There are some further considerations in relation to the gravity of the offence. This incident arose out of a civil dispute. The complainant had not responded to Ms Thomas’ request that the window be shut. Whether that was a reasonable request from one neighbour to another is not the point. Ms Thomas was lawfully entitled to insist on the window being closed. And she was lawfully entitled, for that reason, to seek to close it herself provided, of course, that she did not commit a criminal act in the course of seeking to close it. At [14] (recorded at [8] above) the Judge appears to express an opinion that Ms Thomas was not legally entitled to close the window or require it to be closed. If that is what the Judge intended to say at that point then his conclusion, with respect, was wrong having regard to the unchallenged evidence of the legal expert called for Ms Thomas. This point did not have a bearing on the Judge’s conclusion that there was recklessness, but it is relevant in assessing the gravity of the offence.

Consequences of a conviction

[22] In my judgment the Judge assessed the consequences of a conviction in an unduly narrow way. His conclusion is at [5] (recorded at [12] above). In this statement the Judge appears to have expressed a legal conclusion that “the effect of a conviction in itself” is not a sufficient consequence in terms of s 107. If this is the intended meaning, I do not agree. The statutory test is expressed in broad terms. The Court is required to have regard to all relevant direct as well as indirect consequences of a conviction. The effect of a conviction “in itself” is a direct consequence and, indeed, the most immediate direct consequence. The legislature has directed the Courts to have regard to direct as well as indirect consequences. In considerable measure, the Judge appears to have concluded that there were no relevant consequences because there were none of the indirect consequences commonly pointed to in support of applications under s 106, such as those relating to employment or travel.

[23]     Ms Thomas at the date of conviction was a 66 year old woman with no previous convictions.  I am in no doubt that the entry of a conviction against a 66 year old woman with no previous convictions will of itself have greater adverse consequences  than  entry  of  a  conviction  against  a  younger  person  with  no convictions, or entry of a conviction against another person with a different history.

[24]     I  also  consider  that  it  is  relevant  in  considering  the  consequences  of  a conviction that Ms Thomas was arrested, taken to a police station, and kept in custody overnight.   The reasons for this relate to the separate charge which was dismissed and other matters unrelated to the wilful damage charge.  Ms Thomas has, in consequence, already suffered, in relation to a minor offence, what amounts to a significant penalty for a 66 year old woman with no previous convictions.  The entry of a conviction compounds this.   The Judge appeared to put these matters to one side.

[25]     The Judge also did not appear to attach much weight to what was described as the “psychological effect” on Ms Thomas.  Ms Thomas provided an affidavit for the appeal in which she described the effect on her of this entire incident; and in particular the effect of her arrest, detention overnight, trial and conviction.   Ms Wilde, for the respondent on the appeal, acknowledged that there would be psychological consequences for Ms Thomas.    That was a responsible acknowledgement.

Overall assessment

[26]     Weighing the matters discussed to this point, I am satisfied that the direct and indirect consequences of a conviction in this case would be out of all proportion to the gravity of the offence. This conclusion then requires an assessment as to whether the discretion under s 106 should be exercised in favour of Ms Thomas.   I am satisfied that it should be.   The reasons are, in large measure, contained in the discussion to this point.  There is one further consideration.  This is that Ms Thomas, as I understand it, has accepted responsibility for the cost of the repair.   There seemed to be some question as to whether payment is now required because an insurance company reimbursed Dr and Mrs Hill for the cost.  However, the cost has

been incurred and I am satisfied that it should be met by Ms Thomas.  An order may be made under s 106(3)(b).

Result

[27]     The appeal in respect of the decision under s 106 of the Sentencing Act 2002 is allowed.

[28]     The conviction of the appellant is set aside and the appellant is discharged without conviction.

[29]     There is an order pursuant to s 106(3)(b) of the Sentencing Act 2002 that the appellant pay to the Medical Assurance Society the sum of $224.

Woodhouse J