W v Police - [2019] NZHC 534

W HAS NAME SUPPRESSION PURSUANT TO JUDGMENT DATED 27 MAY 2019 W v POLICE [2019] NZHC 1165.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2018-454-20

[2019] NZHC 534

BETWEEN
W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 March 2019 via AVL

Counsel:

L C Ord and S W O Campbell for Appellant S P Poulton for Respondent

Judgment:

19 March 2019

Reasons:

21 March 2019

JUDGMENT OF MALLON J

Introduction

[1] W pleaded guilty to a charge of breaching a protection order.1 On 18 November 2018, she was convicted and discharged in the District Court after unsuccessfully applying for a discharge without conviction.2 W now appeals against the decision to reject her application for a discharge without conviction.

[2] After hearing from counsel, I allowed the appeal with reasons to follow. These are my reasons.

1 Domestic Violence Act 1995, ss 19(2)(c) and 49(1)(b) and (3); maximum penalty three years’ imprisonment.
2 New Zealand Police v W [2018] NZDC 20348.

W v NEW ZEALAND POLICE [2019] NZHC 534 [19 March 2019]

Summary of offending

[3] W was married to the complainant for a year or so, until they divorced in 2011. On 21 May 2013, a final protection order was issued against W for the protection of her former husband.

[4] A parenting order was made by the Family Court on 10 December 2014, which gave the complainant full-time care of their now ten-year-old daughter. W was allowed supervised fortnightly access to her daughter for a period of seven hours on a Saturday. There was also an allotted hour for phone calls to take place weekly on a Wednesday evening. W was also allowed overnight contact on one night during each school holiday period.

[5] W moved to Napier in 2016 shortly after the order was made, while the complainant remained in Wellington. Subsequently, W and the complainant voluntarily arranged for W to contact her daughter by phone every Sunday in addition to the allotted hour on Wednesdays.

[6] On 29 March 2017, W sent a number of unsolicited text messages to the complainant demanding contact with their daughter outside the agreed times. The complainant became fed up with the text messages so sent W a text message informing her of this. Despite this, W continued to send text messages to the complainant. On 7 April 2017, the complainant contacted the police. Police reminded W of the conditions of her protection order and told her to cease the unnecessary text messaging.

[7] Contrary to the warning from police, W sent a further 38 text messages and made at least two phone calls to the complainant over the next 10 days. In some of these messages W said she was going to report the complainant to the government agency now known as Oranga Tamariki. Some of the text messages were also mildly abusive and claimed that she was mentally unstable. The complainant did not respond to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading W v Police

Details

AGLC: W v Police [2019] NZHC 534
Case: [2019] NZHC 534
Decision Date: 19 March 2019

CaseChat Overview and Summary

W pleaded guilty to breaching a protection order and was convicted and discharged in the District Court. W appeals against the decision to reject her application for a discharge without conviction. The appeal was allowed and her conviction was quashed.

The legal issue before the court was whether the consequences of a conviction would be out of all proportion to the gravity of the offending. The District Court had rejected W's application for a discharge without conviction. W argued that the consequences of a conviction were out of proportion to the seriousness of her offending. The court found that the offending was at the lower end of seriousness and that the consequences of conviction were out of proportion to the gravity of the offence. The court considered W's mental health issues, her remorse and her efforts to address the cause of her offending. The court also considered the consequences of conviction on W's employment prospects and overseas study plans.

The court found that the consequences of conviction would be out of proportion to the gravity of the offending. The offending was at the lower end of seriousness and W had taken steps to address the cause of her offending. The consequences of conviction on W's employment prospects and overseas study plans were also significant. The court concluded that the consequences of conviction were out of proportion to the gravity of the offending and granted W a discharge without conviction.

Orders