Vaipo v Police HC Auckland CRI-2011-404-141

[2011] NZHC 1827

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-141

BETWEEN  KATHLEEN VAIPO Applicant

ANDNEW ZEALAND POLICE Respondent

CRI-2011-404-149

AND BETWEEN            DENOGAREN SUBRAMONEY Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         (On the papers) Counsel:          V Letele for Applicants

W Fotherby for Respondent

Judgment:      17 November 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 17 November 2011 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Letele Law & Justice (Manukau) for Applicants

Meredith Connell (Auckland) for Respondents

VAIPO & SUBRAMONEY V POLICE HC AK CRI-2011-404-141 17 November 2011

Introduction

[1]      The applicants were separately convicted and sentenced in the District Court. Both applied for discharges without conviction,[1] which were refused.  Ms Vaipo was sentenced to 80 hours’ community work for two counts of assault.  Mr Subramoney was  ordered  to  come  up  for  sentence  if  called  upon  within  12 months  for contravening a protection order.  They appealed their sentences to this Court, seeking discharges  without  conviction.    Gendall J,  in  separate  decisions,  refused  both appeals.[2]

[1] Sentencing Act 2002, ss 106 and 107.

[2] Vaipo v Police HC Auckland CRI-2011-404-141, 29 July 2011; Subramoney v Police HC Auckland CRI-2011-404-149, 2 August 2011.

[2]      The applicants now seek leave to appeal Gendall J’s decisions to the Court of

Appeal.

[3]      In Gendall J’s absence overseas these applications fall to be determined by me as the Judge responsible for the Criminal Appeals List.  The grounds for appeal in each case are identical so I will consider them together.  Counsel have agreed that I can deal with the applications on the papers.

Law

[4]      Section 144(2) of the Summary Proceedings Act 1957 governs the question of leave to appeal from a decision of this Court.  The High Court may grant leave if it considers that the question of law ought to be submitted “by reason of its general or public importance or for any other reason”.

[5]      The  task  of  the  Court  in  considering  whether  it  may  grant  leave  under s 144(2) is therefore restricted to a consideration of whether a question of law exists that is of sufficient significance that it ought to be submitted to the Court of Appeal for decision.  In other words, s 144(2) does not confer a right of general appeal.  The

leading case on this point is R v Slater,[3] wherein the Court of Appeal commented:[4]

[3] R v Slater [1997] 1 NZLR 211 (CA).

[4] Ibid, at 214–215.

Section 144 was not intended to provide a second tier of appeal from decisions   of   the   District   Court   in   proceedings   under   the   Summary Proceedings Act.   Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted.  Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Decision

[6]      In both decisions on appeal, Gendall J properly and comprehensively set out and  applied  the modern  approach  to  discharge  without  conviction.    Ms Letele’s primary submission on this leave application is that the test formulated for assessing a claim for discharge without conviction should be that in Fisheries Inspector v

Turner,[5] rather than the test recently set down by the Court of Appeal in R v Hughes[6]

[5] Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA).

[6] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

and Blythe v R.[7]    Keane J rejected this same submission when Ms Letele, for the applicant, raised it in Fehoke v Ministry of Health, holding:[8]

[7] Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

[8] Fehoke v Ministry of Health (No 2) HC Auckland CRI-2011-404-125, 5 October 2011.

[14]      On the appeal, as I recall, Ms Fehoke’s counsel accepted that Hughes was definitive as to the test to be applied.   She contended that Ms Fehoke satisfied that test and was entitled to be discharged without conviction.  On this application for leave, however, Ms Fehoke seeks to say that Hughes does not articulate s 107 accurately, and that is it more accurately articulated in earlier cases like Fisheries Inspector v Turner.

[15]      I  do  not  myself  accept  that  Hughes  articulates  the  s 107  test inaccurately or that the way in which it expresses that test gives rise to any uncertainty, or that there needs to be recourse to earlier cases in order to understand  what  s 107  requires;  and  thus  I  do  not,  myself,  accept  that Ms Fehoke’s  proposed  question  of  law  is  of  such  general  or  public importance as to justify a grant of leave.

[7]      I   concur.      Having   reviewed   counsels’  submissions   and   the   relevant judgments, I am satisfied that the applicants’ requests for discharge without conviction were not rejected because the current test is “too stringent and too high of a  threshold  to  meet”  (as  Ms Letele  submits).    Rather,  their  applications  failed

because,  on  their  respective  facts,  the  direct  and  indirect  consequences  of  a

conviction  would  not  be  out  of  all  proportion  to  the  gravity  of  the  offences committed.

[8]      I was surprised that Ms Letele filed these leave applications relying on the exact same argument that she unsuccessfully pleaded before Keane J only a few weeks before.  I was also surprised that Ms Letele did not refer Keane J’s judgment to me.  It was the Crown which did that.  I have given Ms Letele the opportunity to explain.  She has done so by memorandum.  I am satisfied that the omission was due to inexperience and misapprehension so I take the matter no further.  It is, of course, a duty on counsel to put all relevant and significant law known to the lawyer before

the Court, whether it supports the client’s case or not.[9]

[9] Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (SR2008/214), r 13.11.

[9]      The applicants’ other grounds for leave are that the High Court erred in refusing their appeals because:

(a)      the implementation of the Family Violence Court makes discharges without conviction more likely in cases in this area; and

(b)the applicants’ sentences are contrary to s 19 of the New Zealand Bill of   Rights   Act   1990   (freedom   from   discrimination)   and   the International Covenant on Civil and Political Rights.

[10]     I am satisfied that these grounds too are without merit.  The Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.[10]    On the facts of the applicants’ cases, both the Court at first instance and this Court considered that the s 107 threshold was not overcome.  There was no discrimination.   Simply put, the offences were too serious and the potential consequences  nebulous.     The  Courts  did  not  err  in  law  when  reaching  that

conclusion.

[10] Sentencing Act 2002, s 107.

[11]     I decline leave to appeal.  I agree with Crown counsel’s submission that the applicants have not raised any good reason, of public importance or otherwise, why the Court of Appeal should hear these appeals.  The law in this area is fresh, certain

and clear.

Brewer J