Thompson v Police

[2013] NZHC 1369

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000027 [2013] NZHC 1369

BETWEEN  KODY PIRERE THOMPSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   11 June 2013

Counsel:                  Appellant in person

B A Tompkins for Respondent

Judgment:                11 June 2013

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      On 23 March 2013 Mr Thompson pleaded guilty in the Masterton District Court to a charge brought under s 48 of the Arms Act 1983.  The charge alleged that, without reasonable excuse, Mr Thompson fired a firearm at a home in Masterton. Judge Broadmore convicted Mr Thompson and fined him $200.   He appeals that sentence.

[2]      Mr    Thompson’s     appeal     is     brought     under    s     121(3)    of     the Summary Proceedings Act 1957.  Accordingly, his appeal can only be allowed if I am satisfied either:

(1)       that   the   sentence   imposed   by  Judge   Broadmore   was   “clearly excessive ... or inappropriate”;  or

THOMPSON v NEW ZEALAND POLICE [2013] NZHC 1369 [11 June 2013]

(2)       that substantial facts relating to the offence or the offender’s character

or personal history were not before the District Court Judge when he imposed sentence.

Facts

[3]      On Saturday 16 March 2013 Mr Thompson and some of his friends and relatives were drinking at a home in Workshop Road, Masterton.   Mr Thompson became intoxicated.  He had a paintball gun with him.  Mr Thompson went into the back  yard  of  the  property  and  started  firing  paintballs  in  the  vicinity  of  a neighbouring house. The occupants of the house called the police.

[4]      When spoken to by the police Mr Thompson said he did not deliberately aim at the house and that as he was playing a war game with his relatives and that whoever got hit by a paintball had to buy a case of beer.

Submissions

[5]      Mr Thompson was represented by the duty solicitor when he pleaded guilty in the Masterton District Court.   The duty solicitor invited Judge Broadmore to simply convict Mr Thompson and sentence him if he reoffended.  The duty solicitor submitted  that  if  this  course  of  action  was  not  acceptable  a  fine  would  be appropriate.

[6]      Mr  Thompson  was  not  represented  when  his  appeal  was  heard  by  me. However, his mother has written a submission in which she explains:

(1)       that Mr Thompson’s behaviour did not warrant a criminal conviction;

(2)that  the  consequences   of  a  conviction  are  disproportionate  to Mr Thompson’s  offending.    In  particular,  Mr  Thompson’s  mother refers to restrictions that will be placed on Mr Thompson’s ability to travel overseas if he has a conviction under the Arms Act;  and

(3)       that Mr Thompson should have been discharged without conviction.

[7]      Mr Thompson  has  a  previous  conviction  for disorderly behaviour.   That conviction was entered in December 2012.   On that occasion Mr Thompson was fined $200.

Should Mr Thompson have been discharged without conviction?

[8]      Judge  Broadmore  did  not  consider  discharging  Mr  Thompson  without conviction because he was not invited to do so.  However, as Mr Thompson’s appeal is based on the submission that he should have been discharged without conviction I will assess the merits of a discharge without conviction in the circumstances of this case.

[9]      Under  s  106(1)  of  the  Sentencing Act  2002  a  court  has  a  discretion  to discharge an offender without conviction when they have either been found guilty or pleaded guilty to an offence.

[10]     Section 107 of the Sentencing Act 2002 provides:

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]     The correct approach to applying ss 106 and 107 of the Sentencing Act 2002 is:

(1)first,  to  assess  the  gravity  of  the  offending.    In  undertaking  this exercise  the  court  should  consider  all  of  the  aggravating  and mitigating factors relating to the offending and the offender;

(2)second, the Court should identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence;

(3)third, the Court must ultimately decide whether it should exercise its residual discretion to grant a discharge without conviction, although it

will be a rare case where a Court will refuse to grant a discharge where the offender has passed the first two thresholds in the process followed when applying ss 106 and 107 of the Sentencing Act 2002.1

[12]     I will now apply this methodology to the circumstances of this case.

Gravity of the offending

[13]     In my assessment, the offending in this case was at the lower end of the spectrum   of   criminal   offending.      I   have   reached   this   conclusion   because Mr Thompson used a paintball gun which is designed to be fired at people without hurting them.  While no doubt the occupants of the house he fired in the vicinity of would have been annoyed by his behaviour, his actions can be accurately classified as those of a stupid young larrikin.  There was never any real risk of harm to people or property.

Consequences of a conviction

[14]     Mr  Thompson’s  mother’s  letter  explains  that  the  consequences  of  a conviction for Mr Thompson were not appreciated at the time of his appearance in the District Court.  Mr Thompson is now very concerned that his conviction for an Arms Act offence will impact on his ability to travel abroad.

[15]     I am confident that an Arms Act conviction is highly likely to place barriers to Mr Thompson’s ability to travel abroad.  An Arms Act conviction is likely to be viewed  far  more  seriously  by  foreign  immigration  and  customs  officials  than Mr Thompson’s   previous   conviction   for   disorderly   behaviour.      Indeed,   had Mr Thompson  been  convicted  of  disorderly  behaviour  for  his  offending  on  this occasion  I would have been very reluctant to consider discharging him without conviction.

[16]     I am satisfied therefore, that the consequences of an Arms Act conviction in the circumstances of this case would be out of all proportion to the gravity of

Mr Thompson’s offending.

1      Z v R [2012] NZCA 599 at [27] and Blythe v R [2011] NZCA 190.

Overall assessment

[17]     Having concluded that the consequences of a conviction in this case would be out of all proportion to the gravity of Mr Thompson’s offending, I have concluded, when exercising my residual discretion, that this is a situation in which it is appropriate for a discharge without conviction to be entered.

[18]     In reaching this conclusion, I stress that I have had the benefit of submissions relating to Mr Thompson’s circumstances that were not before Judge Broadmore when, in a busy summary list, he was required to make a decision as to how to deal with Mr Thompson.  I am sure, had Judge Broadmore the benefit of the submissions which I have now received, he would have given very serious consideration to discharging Mr Thompson without conviction.

Conclusion

[19]     Mr Thompson, your appeal is allowed.

[20]     The conviction and sentence entered by Judge Broadmore is vacated.   You are discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Respondent