W v Police HC Dunedin CRI 2010 412 1

[2010] NZHC 25

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

CRI 2010 412 1

W

Appellant

v

POLICE

Respondent

Hearing:         11 February 2010

Appearances:  S Saunderson-Warner for Appellant

R Smith for Respondent

Judgment:      11 February 2010

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded guilty to a charge  of  assault  laid  under  the  Summary

Offences Act, the appellant was convicted and discharged.   The Judge declined his application for discharge without conviction under 106 of the Sentencing Act 2002 and this appeal arises from that refusal.

[2]      In the early hours of the morning the appellant was asked to leave a bar by a security guard.  He was moderately intoxicated.  After refusing repeated requests he was  ushered  towards  the  door  by  security  staff,  apparently  struggling  as  he  went. Outside he threw a number of punches, one of which hit a security officer.   There was no injury.

W V POLICE HC DUN CRI 2010 412 1  11 February 2010

[3]      Mr  W    is  22  years  of  age. He  is  a  post-graduate  student  at  Otago University  and  is  seeking  to  enter  medical  school. A  primary  concern  is  that  a conviction  could  impact  on  his  ability  to  be  admitted  to  medical  school  and, assuming  that  he  is  admitted,  on  his  ability  to  register  as  a  medical  practitioner. Glowing character references from a wide spectrum of people were before the Judge. Indications are that the offending was completely out of character and the appellant is genuinely contrite.

[4]      When considering the application for discharge without conviction the Judge began by  addressing the gravity of  the offending. Having  outlined  the  facts  he accepted that the appellant was genuinely remorseful for the offending (as opposed

to being remorseful because of the plight in which he found himself) and that it was highly  unlikely  that  the  appellant  would  re-offend.  The  Judge  noted  that  the appellant had spent some hours in custody and that he had voluntarily undertaken 20 hours community work.

[5]      Then the Judge assessed the direct and indirect consequences of a conviction.

He  identified  as  the  primary  consequences  the  ability  to  be  admitted  to  medical school  and  then  ultimately  to  pursue  a  career  as  a  medical  practitioner. As  to admission to the medical school, the Judge noted that the form of application (which was before him) required disclosure of any charge regardless of whether a conviction had been entered.   With reference to registration, the Judge noted that the appellant would  have  to  satisfy  the  Medical  Council  that  any  conviction  would  not  reflect adversely on his fitness to practice.  In this context the Judge noted that the appellant had what he described as “glowing” references.

[6]      The third step taken by the Judge was to consider whether the consequences

of  conviction  would  be  out  of  all  proportion  to  the  gravity of  the  offending.   The Judge noted that in undertaking this analysis he could have regard to the matters set out in ss 7 – 10 of the Sentencing Act.   This led the Judge to comment about the prevalence  of  unprovoked  violence  in  the  inner  city streets  of  Dunedin  during  the early hours of the morning and that a sentence that both denounces and deters such offending was a paramount sentencing purpose.

[7]      Finally,  the  Judge  considered  whether  he  should  exercise  his  discretion  in favour  of  discharging  without  conviction  under  s106.                He  said  that  he  was  not inclined to do so for these reasons:

[9]       ... The offence itself was committed in the early hours of the morning in the vicinity of  a  bar  in  inner-city Dunedin. As  I have  said,  such  behaviour  is all  too prevalent  in  the  inner-city  in  these  sorts  of  circumstances.  You  were  moderately intoxicated.   You were asked to leave.   You did not.   You began to struggle.   You were then taken outside.  If the matter had ended there you would not be appearing here, Mr W  , but you threw a number of punches and one of those hit a security staff member who fortunately did not suffer any injuries.

[10]     You  are,  in  any  event,  required  to  disclose  the  fact  that  you  have  been charged with this offence in order to be admitted to the University and it is a factor to  be  considered  that  it  should  it  should  be  for  the  University  and  the  Medical Council rather than the Court to assess your suitability for your future occupation.  It may  well  be  that  at  an  appropriate  time  those  bodies  who  assess  these  things determine that your character is such that you are a person who should be admitted to medical school and enter the medical profession.  That is not a matter for me.

The  Judge  concluded  by  nothing  that  although  he  was  not  inclined  to  grant  a discharge without conviction, the appellant had  already been punished enough and that a conviction and discharge was appropriate.

[8]      Ms Saunderson-Warner  advanced  constructive  and  helpful  submissions  in support of the appeal.   In substance her argument is that the Judge gave too much weight to the issue of general deterrence and not enough to the reality that this was low level offending of a type that did not   require   general  deterrence. She emphasised that for the appellant this offending was completely out of character and submitted that this aspect had been given insufficient weight by the Judge.

[9]      Counsel also claimed that the Judge had under-estimated the implications of a conviction.           Even  though  the  fact  that  he  had  been  charged  would  have  to  be disclosed, Ms Saunderson-Warner argued that the conviction itself could ultimately prove pivotal to the success or otherwise of his application.  Her submission was that this applied with even more force in relation to registration as a medical practitioner where the incident would not have to be disclosed if there was no conviction.

[10]     It was also argued by Ms  Saunderson-Warner  that  it  is  not  clear  from  the sentencing remarks whether the  Judge  declined  the  appellant’s  application  on  the

basis of deterrence or consequences.  She argued that this Court should now exercise

its own judgment in accordance with Austin, Nichols & Co Inc v Stiching Lodestar

[2008] 2 NZLR 141 (SC).

[11]     For the police Mr Smith argued that the offending, although at the lowest end

of  gravity,  was  more  than  trivial.         He  said  when  assessing  the  gravity  of  the offending the Court should focus on the appellant’s culpability in the sense that the continuing incident arose because the appellant did not leave the bar quietly when he was  asked  to  do  so.  Mr  Smith  submitted  that  the  Judge  was  entitled  to  place considerable  weight  on  general  deterrence  and  that  it  was  appropriate  for  him  to leave the University and the Medical Council to decide the applications that would come before them.

[12]     Appeals against refusal to discharge without conviction are never easy.  Very often they involve a situation like this where the offending is both at the lowest end

of  the  spectrum  in  terms  of  gravity  and  totally  out  of  character.   Often  there  are possible downstream implications.

[13]     In this case there is no question that the Judge addressed the matters before him in terms of the legislation and R v Hughes [2009] 3 NZLR 222. Although it is not entirely clear, he seems to have proceeded on the basis that the offending was at the lowest end of the spectrum albeit, as Mr Smith pointed out, something more than trivial.

[14]         As  I  read  his  sentencing  remarks,  the  Judge  was  heavily  influenced  in  the exercise his discretion by bad behaviour in the inner city during the early hours of the morning.  I cannot see any reason in principle why the Judge erred by referring to that behaviour.  Nor have I been persuaded that he gave it too much weight.  While this  offending  was  at  the  lowest  end  of  the  scale,  it  did  have  the  characteristics described by the Judge in the passage quoted earlier and he was entitled to conclude that it required general deterrence (as opposed to deterrence of the appellant who the Judge accepted was unlikely to re-offend).

[15]     The next main platform for the Judge’s exercise of discretion seems to have been  that  it  was  for  the  University  and  Medical  Council  to  make  the  relevant decisions.  As the Judge rightly pointed out, the reality is that regardless of whether or  not  there  is  a  conviction,  the  incident  would  have  to  be  disclosed  to  the University.  I cannot see any error in that approach.  And while the Judge concluded that  it  was  preferable  for  the  Medical  Council  to  determine  whether  the  appellant was a  fit and proper person to be admitted to the medical profession, he  seems to have dropped a broad hint that once the appellant’s good character was  taken into account admission was likely to be granted.  I cannot fault his reasoning. This was not  a  situation  where  conviction  would  give rise  to  a  insurmountable  barrier  to admission to either the University or the profession.

[16]     Under  those  circumstances  I  do  not  see  how  it  would  be  open  to  me  to interfere.  The Judge’s application of the law was accurate and I have not found any error  in  the  exercise  of  the  discretion.  I  know  that  the  appellant  will  find  this outcome disappointing, but on the information before me I would be surprised if this incident was a barrier to his chosen career.

[17]     The appeal is dismissed.

Solicitors:            Crown Solicitor, Dunedin

Aspinall Joel, Dunedin