Thompson v Police
[2017] NZHC 76
•3 February 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-488-56 [2017] NZHC 76
LEVI CODY ERIC THOMPSON
v
NEW ZEALAND POLICE
Hearing: 3 February 2017 Counsel:
NS Leader for applicant
JW Wall for defendantJudgment:
3 February 2017
(ORAL) JUDGMENT OF FITZGERALD J
Solicitors: Crown Solicitor, Whangarei
To: NS Leader, Barrister, Whangarei
Thompson v New Zealand Police [2017] NZHC 76 [3 February 2017]
[1] On 9 September 2016, Judge DG Harvey in the District Court at Whangarei discharged Mr Levi Thompson without conviction1 on two charges of common assault2 and a charge of wilful damage.3 The Judge, however, considered it important that a charge for failing to appear4 was marked on Mr Thompson’s record and entered a conviction accordingly.
[2] Mr Thompson appeals against the Judge’s refusal to grant a discharge without conviction on the failure to appear charge. Both parties accept that this is an appeal against conviction rather than sentence.
Background
[3] The Judge described the events which led Mr Thompson to being on bail for assault and wilful damages charges. It is not necessary for me to traverse the background facts to those charges (which are not the subject of this appeal). I will refer to the assault and wilful damage charges as the “main charges”.
[4] Mr Thompson pleaded guilty to the main charges at his first appearance on
27 November 2015, and was remanded on bail to appear on 29 April 2016. The Court was advised that Mr Thompson would apply for a discharge without conviction.
[5] Mr Thompson did not appear on 29 April 2016, and Judge Harvey issued a warrant for his arrest.
[6] Mr Thompson’s failure to appear was inadvertent and was due to a mistaken
belief that his Court appearance was scheduled for 29 May 2016, rather than 29 April
2016. It seems there was a letter available to the Court on 29 April advising that
Mr Thompson was attending the Man Alive programme, which Mr Leader confirmed today, had been ordered by the Court.
1 Police v Thompson [2016] NZDC 17583.
2 Summary Offences Act 1981, s 9; maximum penalty, six months’ imprisonment.
3 Summary Offences Act, s 11(1)(a); maximum penalty, three years’ imprisonment.
4 Bail Act 2000, s 38; maximum penalty, one year imprisonment or a fine of $2000.
[7] Upon being advised of his error, which I understand was on 2 May, Mr Thompson immediately contacted the Registry and arranged a voluntary Court appearance at the first opportunity, which was early June 2016. I am also advised he signed up at that point to text message reminders in relation to future appearances. The arrest warrant was later cancelled without the intervention of the Police and Mr Thompson pleaded guilty to a charge of failing to appear at the first available opportunity.
[8] The Police took a neutral stance to the application for discharge without conviction.
District Court decision
[9] Judge Harvey heard Mr Thompson’s discharge application on 9 September
2016. I have read the oral judgment and his decision largely focuses on the main charges and he addresses the failure to appear charge at the end of his judgment.
[10] The Judge evaluated the gravity of the main charges as being “towards the bottom end of the scale of seriousness as criminal offending is defined”.
[11] The Judge considered there to be no direct consequences of a conviction. However, as to indirect consequences, the Judge accepted that a conviction for assault might cause some difficulties with Mr Thompson’s job as an apprentice builder because he often works on schools. The Judge observed that if a conviction for assault were entered, Mr Thompson’s employer would need to obtain clearance before he could work on such projects.
[12] The only other indirect consequence considered was Mr Thompson’s wish to travel, but Judge Harvey said there was nothing before him to suggest that a conviction for summary offence assaults would restrict his travel options. The Judge also noted that Mr Thompson had attended a Man Alive programme, and concluded as follows:
[13] I accept what Mr Leader tells me that we are in an environment where work in Northland is not easy and it is common sense that if an employer is faced with two applicants, one who has convictions
for assault and one who does not, he is likely that he take the person with no convictions.
[14] Looking at the history of this file however I note that there were bail warnings, breach of a bail and warrants have been issued. I have decided by the very narrowest of margins that I am going to grant a discharge without conviction in relation to the two assaults subject to the payment of $200.
[15] I am prepared to give the defendant until 30 October to make that payment. If payment is not made the file is to be referred back to me and convictions will be entered.
[16] In relation to the breach of bail however it is important that is marked and he will be convicted on the charge of breach of bail.
[13] It appears that Mr Thompson was also discharged without conviction in relation to his wilful damage charge.
[14] Implicit in Judge Harvey’s grant of a discharge without conviction is an acceptance that the consequences of a conviction on the main charges were out of all proportion to the gravity of the offending in those charges. Those matters are not in dispute today and I therefore adopt Judge Harvey’s findings in that regard.
Submissions on appeal
[15] Mr Leader submits that the Judge erred in three ways when declining to discharge Mr Thompson without conviction on the failure to appear charge:
(a) The Judge failed to signal that he intended to treat the failure to appear charge differently to the other charges, thus denying counsel an opportunity to make submissions;
(b)The Judge failed to take into account relevant considerations by failing to account for the fact that a conviction for failing to appear would negate the effect of the other discharges;
(c) The Judge failed to take into account the mitigating factors for the particular charge.
[16] Mr Leader accordingly submits that the conviction ought to be quashed and the appellant be discharged without conviction on the failure to appear charge.
[17] Mr Wall for the Crown opposes the appeal but has helpfully set out in his oral submissions the practical consequences of the conviction on the charge.
Approach to appeal
[18] Section 106 of the Sentencing Act 2002 gives the Court the discretion to discharge a person without conviction. Before the Court can consider whether to exercise that discretion, it must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.5 This is assessed by way of a three-stage threshold analysis:6
(a) First, the Court assesses the gravity of the offence in the offending, including all aggravating and mitigating factors.
(b)Second, the Court identifies the direct and indirect consequences of a conviction for the defendant, it being sufficient for the Court to be satisfied that there is a “real or appreciable” risk that such consequences will occur.
(c) Thirdly, the Court then considers whether the consequences of a conviction are out of all proportion to the gravity of the offence.
[19] If the threshold in the third stage has been met, the Court may then consider whether to exercise its discretion under s 106 to grant a discharge without conviction.
[20] An appeal against a finding that the threshold contained in s 107 has not been
5 Section 107.
6 DC (CA47/2013) v R [2013] NZCA 255; R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at
[8].
met is an evaluative exercise and therefore proceeds by way of a general appeal.7
However, even if an appellate Court disagrees with the first instance Judge and finds that the threshold in s 107 has been met, the appeal will not automatically succeed. The Court must still consider whether it should exercise its discretion and grant a discharge without conviction.
Analysis
[21] Mr Leader has now had an opportunity to make full submissions regarding a discharge in respect of the charge. I do not accept the first ground of appeal advanced on behalf of Mr Thompson. The charge was a separate charge and I do not consider it was incumbent on the Judge to have “flagged” in advance with counsel that he would be dealing with that separate charge separately.
[22] I see more force, however, in the second and third grounds of appeal advanced on behalf of Mr Thompson. In terms of the first step of considering the threshold for granting a discharge without conviction, I accept that the gravity of the offending in relation to the failure to appear charge is at the low end of the scale. That does not appear to be in dispute today. To the extent that the Judge did not expressly consider the mitigating features of Mr Thompson’s offending on this charge, I take them into account. They include that:
(a) The breach was a genuine oversight,
(b)Mr Thompson immediately arranged a voluntary appearance upon becoming aware of the oversight,
(c) Mr Thompson continued to attend the Man Alive course, as ordered by the Court,
(d) He pleaded guilty to the charge at the first available instance; and
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; Austin, Nichols & Co Inc v Stichting
Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
(e) The failure to appear was a one-off occasion in a year that included over 11 court appearances.
[23] There are no suggested particular aggravating features, but I note that in the Crown’s written submissions, my attention is drawn to the fact that Mr Thompson also breached his bail conditions in August 2016, by being absent from his address when the Police visited. This is recorded on his bail bond: and he was readmitted to bail without further charges. So that breach is marked on Mr Thompson’s court records as well as the failure to appear breach. Mr Wall accepted this in his oral submissions.
[24] Having formed the view that the gravity of the offence was at the lower end of the scale, I turn to consider the direct and indirect consequences of a conviction on this offence. I accept Mr Leader’s submission that the consequences of conviction on this offence effectively lead one back to the consequences of a conviction, had there been one, on the main charges. This is where I consider the Judge to have erred. Mr Thompson will no doubt need to declare his conviction for failing to appear to prospective employers. I accept that there is a real and appreciable risk that, upon seeing the failing to appear conviction, prospective employers will then ask Mr Thompson about the charges in respect of which he was required to appear. That will lead to Mr Thompson having to disclose that he was charged with the main charges. I do not accept Mr Leader’s submission that this puts him in a position that is “exactly the same as if he had received the convictions” on the main charges (my emphasis), as he will be able to state that he was discharged without conviction on them. However, in a practical sense, the “horse will have bolted” by that point, as Mr Thompson will have had to disclose the existence and outcome of the main charges, in circumstances where he would not otherwise have had to do so.
[25] Accordingly, in my view, a consequence of the conviction on the failure to appear charge is that Mr Thompson will in all likelihood be required to disclose the circumstances in respect of the main charges. While Mr Thompson would at least be able to say he was discharged without conviction on the main charges, the need to disclose the very fact and circumstances of them is likely to negate, or at least largely
negate, the effect of the discharge without conviction that the Judge had granted. In those circumstances, I consider that the consequences of the conviction for failing to appear are out of all proportion to the (low) gravity of the offending, particularly accepting as I do, the Judge’s analysis of the consequences of the convictions on the main charges. For those reasons and for the purposes of s 106, I would exercise my discretion to grant a discharge without conviction.
Result
[26] The Crown accepts that in the event I were to allow the appeal, I am able, pursuant to s 233 of the Criminal Procedure Act, to make the orders sought on behalf of Mr Thompson and I accept that proposition.
[27] Accordingly:
(a) The appeal is allowed;
(b)Mr Thompson’s conviction for failing to appear pursuant to s 38 of the Bail Act is set aside; and
(c) Mr Thompson is discharged without conviction on the charge of failure to appear pursuant to s 38 of the Bail Act.
Fitzgerald J
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