W v Police HC Auckland CRI 2007-404-147

[2007] NZHC 982

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-147

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         1 October 2007

Appearances: Josefina Fuimaono-Sapolu for Appellant

Lana Hamilton for Respondent

Judgment:      1 October 2007

JUDGMENT OF HARRISON J

SOLICITORS

Sapolu law (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

W V POLICE HC AK CRI 2007-404-147  1 October 2007

Introduction

[1]      Mr  W   appeals against his conviction coupled with an order that he come up for sentence if called upon following a plea of guilty to one charge of unlawfully  entering  a  motor  vehicle:  s 226(2)  Crimes  Act  1961.    His  counsel, Ms Josefina  Fuimaono-Sapolu,  submits  that  Judge  Margaret  Lee  sitting  in  the District Court at Manukau should have discharged Mr W   without conviction.

Facts

[2]      The material facts are not in dispute.  Earlier this year an elderly man parked and locked his motor vehicle on Orakei Road, Remuera.  The vehicle was valued at about $6,000.  Two days later the police found Mr W   and an associate, Mr Afa Faatasi, driving the vehicle with others at a reserve in Otara.  Mr Faatasi admitted that he knew the vehicle was stolen but said that he did not steal it himself.   The summary of facts does not record any explanation by Mr W  .   Both Messrs Faatasi and W   pleaded guilty to a charge of unlawfully entering a motor vehicle.

District Court

[3]      Mr Faatasi  was  eligible  for  diversion  and  the  Judge  made  an  order accordingly.  However, she did not order diversion for Mr W  .  Both boys were the same age – 17 years – and were high school students.  At first blush this may seem to present an appealable disparity.  Indeed, Ms Fuimaono-Sapolu advanced this point as her primary ground on appeal.  However, it is now apparent that Mr W   was ineligible for diversion; on the previous day he had completed a diversionary course imposed following his plea of guilty in May 2007 to a charge of disorderly behaviour.

[4]      The Judge’s sentencing notes are concise, to say the least.  She is recorded as saying as follows:

Mr W  , you are convicted and ordered to come up for sentence if called upon within six months.

That means you have a conviction but if you do not commit any other offence then there is no other penalty.  If you do commit another offence the prosecution can call this one up as well.  Do you understand?  Right.  You can go.

Decision

[5]      In the best traditions of fairness exemplified by the Crown Solicitor’s office, Ms Lana Hamilton has referred to the commentary in Adams on Criminal Law – Sentencing SA110.02, which states as follows:

If an offender pleads or is found guilty, before entering a conviction and imposing  a  sentence  the  Court  must  consider  whether  convicting  the offender and making an order under s 110 is more appropriate: s 11(1)(c). An order to come up for sentence if called on is typically justified as a deterrent, in that it leaves a threat of unspecified punishment hanging over an offender’s head, hopefully dissuading the offender from further misconduct during that period.   It is used where the Court concludes that no other penalty is required at the time, but the circumstances of the offence or offender  are  such  that  a  conviction  and  discharge,  or  a  discharge without conviction, are unwarranted.  An order made under s 110 may be appealed under s 115(1)(b) Summary Proceedings Act 1957: R v Accused (CA209/90) [1991] 1 NZLR 79 (CA).

[Emphasis added]

[6]      It is common ground that the Judge did not consider the alternative of discharging  Mr W    without  conviction.    He  was  represented  by  the  Duty Solicitor.  I accept that he apparently advised her that he ‘wanted to get the matter sorted’; that is, enter an immediate plea of guilty.  He was unaware that the option of an application for an order discharging him without conviction was available, and the Duty Solicitor did not apparently refer to it.

[7]      It is plain that a discharge without conviction was an available sentencing option.  Indeed, it should have been advanced by the Duty Solicitor and considered by the Judge.  It was not.  On that basis alone the appeal must be allowed.

[8]      After hearing from both counsel I have carefully considered whether or not to exercise my discretion to impose a sentence afresh.  However, I am satisfied that the more  appropriate  course  would  be  to  set  aside  the  conviction  and  remit  the proceeding back to the District Court at Manukau for sentencing.  On the one hand,

Mr W   appears to be otherwise of good character and to enjoy the promise of a career in rugby football or as a builder.  He has played rugby for his 1st 15; he has a part-time job with McDonalds; he is a peer support mentor at his high school; he is currently completing an NCEA Level 3 building course, hoping to commence an apprenticeship next year.  In the balancing act to be conducted on sentencing, these factors may weigh in his favour.

[9]      Against Mr W   is the fact that when he committed the offence he was already participating in a diversion programme imposed following a plea of guilty to a charge of disorderly behaviour.  On its face his offending indicates that Mr W   has abused the leniency earlier shown towards him by the Court.

[10]     Ms Fuimaono-Sapolu has suggested that a discharge without conviction may be appropriate if and when, for example, a restorative justice programme is conducted.   However, Mr W  ’s affidavit sworn in this Court does not refer to this proposal; nor does it make any suggestions, for example, for payment of reparation to the owner.  He is a 75 year old male.  His victim impact report reflects that Mr W  ’s offending had, as is expected for a man of that age, an adverse impact.  He plainly feels violated.  He is also concerned that his vehicle appears to be damaged.

[11]     I have no doubt that a sentencing Judge would not consider the option of a discharge without conviction in the absence of concrete proposals from Mr W   to make appropriate reparation, both financially and emotionally.  At the very least, he would be expected to atone for his stupidity by seeking to meet with the victim and apologise.

[12]     All these factors will fall for consideration by the sentencing Judge.

Result

[13]     I confirm that the appeal is allowed and the proceeding is remitted to the

District Court at Manukau for sentencing.

Rhys Harrison J