Uele v Police HC Auckland CRI-2011-404-000190

[2011] NZHC 1428

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000190

BETWEEN  MASON UELE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         1 November 2011

Appearances: V Letele for Appellant

K Wendt for Respondent

Judgment:      1 November 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            V Letele, Manukau

UELE V NEW ZEALAND POLICE HC AK CRI-2011-404-000190 1 November 2011

[1]      On 27 May this year the appellant was convicted on one count of assault and sentenced  to  nine  months’ supervision  by  Judge  Johns  in  the  District  Court  at Manukau.  He appeals against the conviction and sentence.  Essentially the appellant argues that he should have been discharged without conviction.

[2]      At the outset of the hearing today counsel sought an adjournment of this appeal.  The appellant is not able to be present. Apparently his partner’s child whom he regards as his step child, has recently been urgently admitted to Starship Hospital.

[3]      I declined counsel’s application for an adjournment.   I did so because this matter has already been adjourned once in this Court.  The incident leading to the conviction occurred in October 2009.   It is time that this matter was brought to conclusion.  While it would be preferable for the appellant to attend if he wished to, it is not essential for him to do so as counsel appeared and represented his interests.

[4]      Next,  at  the  outset  of  submissions,  Ms  Letele  sought  to  make  an  oral application to vacate the appellant’s guilty plea in this case.   I declined that application.  It was advanced essentially on the grounds that the Judge in the District Court was wrong to refuse a further adjournment in that Court and to require the matter to be dealt with in March and also on the ground that the appellant had been given an indication of a discharge without conviction but was ultimately convicted and sentenced to supervision.

[5]      I am quite satisfied that there is no proper basis for the guilty plea to be set aside, quite apart from the fact that if any such application was to be made it should have been made some time ago and should also been accompanied by an affidavit setting out the full circumstances relied on.  The Judge was quite right to refuse the further adjournment sought when the matter was before the Court on 9 March 2011. The history to this matter is that the appellant was first before the Court on 3 October

2009  immediately  following  the  assault.    He  was  remanded  without  plea  to  5

October.  On that day Ms Letele appeared (I am advised as duty solicitor). Although the appellant was late in making an appearance that day he finally appeared and was remanded through until 19 November.  However, the appellant then failed to appear on 19 November 2009 and a warrant for arrest was issued.

[6]      Then almost a year later, on 9 August 2010, the appellant made a voluntary appearance.  The warrant was cancelled.  He pleaded not guilty and was remanded to

10 November 2010 for a defended hearing.

[7]      On   10   November   2010   counsel   appeared   and   requested   a   further adjournment.  The matter was adjourned.  Bail conditions were varied.  The matter was adjourned to 9 March for the defended hearing.

[8]      On   9   March   2011   counsel   raised   disclosure   issues   and   sought   an adjournment.  The Judge declined to grant a further adjournment and the matter was stood down.  It has to be said, with respect to matters of disclosure in this case, that even if, contrary to the police record, there had not been disclosure made at an early date that could readily have been dealt with in the course of the matter being stood down  on  that  day.     In  any  event,  after  discussion  between  counsel  and  the prosecution, the charge was reduced from male assaults female to a charge of simple assault.

[9]      The Judge was then asked to, and gave, a sentence indication of a discharge without conviction provided the appellant attended counselling.   On that basis the guilty plea was entered.  The Judge was, as I say, quite correct to decline any further adjournment past 9 March.  She would have been entitled to deal with the matter as a defended fixture on that day if the plea of guilty had not been entered.

[10]     The indication of a discharge without conviction was made on the basis that the appellant was to attend counselling.  The matter was adjourned to allow that to occur and for sentencing to take place on 27 May 2011.  However, when the matter came before the Judge on 27 May the appellant had not attended counselling at all. The Judge declined counsel’s request to adjourn the matter further.  Again the Judge was  quite  entitled  to  refuse  the  adjournment  and  to  convict  and  sentence  the appellant.  The indication of a discharge without conviction had been given on the basis the appellant would attend counselling which he had failed to do.

[11]     For those reasons I declined the oral application to vacate the guilty plea.

[12]     In support of the conviction appeal Ms Letele argued strenuously that the consequences of the conviction were out of proportion to the seriousness of the offending in this case.  She noted that the appellant had reconciled with his partner who supported him.   They are in receipt of a joint unemployment benefit which enables them to live together.  The appellant has attended church regularly, given up his alcohol and smoking, and has now attended some counselling through the church with Joseph, a leader at the church.  As noted he now has the full support of the victim, his partner.   Ms Letele submitted it would be unfair to disadvantage the appellant by entering a conviction, which would only make it more difficult for him to obtain employment.

[13]     In relation to the application for discharge without conviction this Court is of course bound to apply ss 106 and 107 of the Sentencing Act and the Court of Appeal decision in R v Hughes.[1]    Section 107 essentially identifies a three step process the

[1] R v Hughes [2008] NZCA 546.

Court must go through when considering such an application:

first, identify the gravity of the offending by reference to the facts of the case;

next to identify the direct and indirect consequences of a convictions;  and

finally,  to  determine  whether  it  can  be  said  the  direct  and  indirect consequences of conviction would be out of all proportion to the gravity of

the offending.

[14]     In   conducting   that   exercise   the   Court   must   consider   the   relevant circumstances of the offence and the offender, the interests of the community and the relevant factors of the Sentencing Act.

[15]     In the present case the offending occurred after the appellant came home, having drunk alcohol at a friend’s place.  It followed an argument between him and the victim over their relationship.  The appellant became enraged and cornered the victim in her bedroom.  He pushed her with two hands on her chest causing her to

fall back onto the bed.  If matters had rested there then the Court might take a rather

more lenient view of the matter.   However, the appellant then continued with his assault.   He punched the victim to her chest with closed fist and followed that by punching her in the head with a closed fist.  As a consequence the victim received minor injuries to her chest and head.  When spoken to the appellant admitted that he had punched the victim and said he was filled with rage at the time.

[16]     The ultimate charge of simple assault probably fairly reflects the level of culpability and level of violence in this case.   The difficulty for the appellant in submitting that a conviction should not be entered is that he has not been able to identify any particular consequences to him of a conviction of that nature.  Despite counsel’s impassioned submissions that he would be disadvantaged in relation to employment, there is no evidence that that is so.

[17]     At counsel’s request I accepted a statutory declaration and other papers put to the Court by the appellant.  In the declaration sworn yesterday, the appellant has said that he has had three job offers to go to Christchurch and work but had chosen to stay in Auckland for his family.

[18]     It is also pertinent to note that in the course of that declaration, on the issue of counselling, he says:

When I last came to court I was told to it was better to plead Guilty because then I would have to go [counselling] and come back and they will dismiss my charge.   But I did not attend any [counselling] because I thought it wasn’t fair, I’ve been accused of a crime that I did not do, but still had to attend counselling then come back and they will dismiss it.

[19]     That reflects a concerning attitude on the part of the appellant to his actions.

[20]     In short, having regard to s 107, the circumstances of this offence and the offender and the relevant purposes and principles of the Sentencing Act, it cannot be said in this case that there is any evidence that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending in this case.

Result

[21]     The appeal against conviction is dismissed.

Sentence

[22]     That then leaves the related appeal against sentence.  The sentence imposed was of supervision with a direction that the appellant undertake anger management counselling as part of that supervision.   It was supervision for a period of nine months. The sentence was imposed by a District Court Judge well experienced in domestic violence matters.    It  was  clearly directed at  addressing the  issues  the appellant has in relation to anger and to ensure that he and his partner will continue to be able to enjoy a stable relationship.

[23]     Counsel for the police Ms Wendt referred to cases of R v New Zealand Police[2] and Bullen v Police[3] in relation to sentences that might otherwise have been appropriate for offending of this nature.

[2] R v New Zealand Police HC Rotorua CRI-2009-470-000003, 26 May 2009.

[3] Bullen v Police HC Greymouth AP12/90, 29 October 1990

[24]     Each case must of course turn on its own facts.  I am satisfied in this case that the sentence imposed by Judge Johns was a sentence well open to her in the circumstances of the case.  It was imposed with regard to the interests of not only the appellant but also his partner and the community at large.

[25]     The appeal against sentence is also dismissed.

Venning J

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