Whakataka v Police
[2022] NZHC 2908
•7 November 2022
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2022-416-8
[2022] NZHC 2908
TUAHINE HIRINI WHAKATAKA v
NEW ZEALAND POLICE
Hearing: 3 November 2022 Appearances:
N J Wright for Appellant
L A Marshall for Respondent (via VMR)
Judgment:
7 November 2022
JUDGMENT OF McQUEEN J
[1] Mr Whakataka seeks leave to appeal a decision of the Gisborne District Court on 1 August 2022 to discharge an assault charge without conviction under s 106 of the Sentencing Act 2002.1 The appeal is brought on a question of law on the basis that no order was made according to s 106(3)(c). The question of law posed by Mr Whakataka is:
Is it correct in considering the phrase “order the court is required to make on conviction”, pursuant to section 106(3)(c) of the Sentencing Act 2002, to restrict the meaning of “required” to “mandatory”?
[2] Mr Whakataka says that the answer should be “No”. He appears to be seeking court-ordered psychological intervention under s 106(3)(c), alongside the discharge without conviction.
1 Police v Whakataka [2022] NZDC 14410.
WHAKATAKA v NEW ZEALAND POLICE [2022] NZHC 2908 [7 November 2022]
Background
[3] Mr Whakataka originally faced Judge-alone trial on two charges of indecent assault.2 During this trial, he was discharged of the first charge of indecent assault pursuant to s 147 of the Criminal Procedure Act 2011. On the second charge, the Judge found that the element of indecency had not been proved but held the included charge of assault simpliciter3 was made out.4
[4] Mr Whakataka was sentenced on 1 August 2022.5 Counsel for Mr Whakataka applied for a discharge without conviction under s 106 of the Sentencing Act. The Judge granted the discharge without conviction and made an order under s 106(3)(b) that Mr Whakataka pay an emotional harm payment of $400 to the victim.6
[5] A psychological report obtained by the Court recommended that if the matter was dealt with in the absence of discharge without conviction, there could be benefits to Mr Whakataka from seeing a Department of Corrections psychologist.7 The Judge considered adjourning the sentencing to allow a psychologist or psychiatrist to assist Mr Whakataka, and once that process was complete, then considering the s 106 discharge. However, he concluded that it was in the interests of justice to bring the matter to a close in the interests of the state, Mr Whakataka and the victim.8 The Judge recorded Mrs Wright’s submission that he could order such assistance from a psychologist or psychiatrist together with the discharge without conviction but concluded that power did not exist”.9
Relevant law
[6] Section 106(3) provides for additional orders a court can make when discharging an offender without conviction:10
(3)A court discharging an offender under this section may—
2 Crimes Act 1961, s 134(3).
3 Section 196.
4 R v Whakataka [2022] NZDC 8050.
5 Police v Whakataka, above n 1.
6 At [30].
7 At [17].
8 At [20].
9 At [18]–[19].
10 Emphasis added.
(a)make an order for payment of costs or the restitution of any property; or
(b)make an order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered–
(i)loss of, or damage to, property; or
(ii)emotional harm; or
(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c)make any order that the court is required to make on conviction.
[7] Most relevant to this appeal is the discretion for the court to make any order it would have been required to make had the offender been convicted (with no discharge).11
Approach to Appeal
[8] This appeal is brought under s 296(3)(b) of the Criminal Procedure Act 2011, which permits appeals, with the leave of the appellate court, on questions of law against a ruling by the trial court that arise:12
in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under s 147 or a stay of prosecution).
[9] The Court of Appeal has recently explained the scope of appellate review under s 296 as follows:13
In R v Smyth the Court held that a question of law arises for s 296 purposes when there is:
a) a misdirection of law apparent in the decision;
b) oversight of a relevant matter or consideration of an irrelevant matter; or
11 Sentencing Act, s 106(3)(c).
12 The Court of Appeal has confirmed that this includes a question of law arising from a discharge without conviction: see R v Smyth [2017] NZCA 530 at [7]; and R v Malu [2017] NZCA 546 at [9].
13 R v Cleaver [2020] NZCA 397 at [12], citing R v Taulapapa [2018] NZCA 414 at [17] (footnotes omitted).
c) a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence.
We add that an error of law may also arise when a decision is plainly wrong.
[10] This is perhaps an unusual case. It is not an appeal brought by a defendant that discharge without conviction was wrongly refused, nor an appeal by the prosecutor that a discharge without conviction was wrongly granted. Mr Whakataka was granted a discharge without conviction but still seeks to bring an appeal on a question of law on the basis that the Judge was wrong not to make an additional order of counselling or psychological supervision on the basis that there was no power for him to do so. This appears to me to involve a potential “misdirection of law apparent in the decision”, as contemplated by the Court of Appeal in (a) above.
Leave to appeal out of time
[11] The application seeking leave to appeal was not brought within 20 working days of the date of the ruling being appealed against. Accordingly, Mr Whakataka applies for an extension of time for filing the application.14 An application for an extension of time will only be granted when it is in the interests of justice to do so and extension of time applications routinely reduce to the reasons for delay and the merits of the proposed appeal.15
[12] Mrs Wright submits that the appeal was out of time by less than two weeks and was caused by difficulties in communicating with Mr Whakataka, noting that he struggles to communicate as a result of the two strokes he has suffered and that a communication assistant was no longer available to assist as the proceedings in the District Court had concluded. Mrs Wright also submits that the appeal raises a novel point that is significant for Courts operating under the Te Ao Mārama vision.16
[13] The respondent submits that the appeal is misguided as a plain reading of s 106 is a complete answer to the question raised and leave to appeal out of time should therefore be declined.
14 Criminal Procedure Act 2011, s 298(4).
15 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [114].
16 See Ministry of Justice “Te Ao Mārama” < It is convenient to consider the merits of the appeal before reaching a conclusion on the application for an extension of time.
The merits of the appeal
[15] Mrs Wright, counsel for Mr Whakataka, submits that the District Court Judge implicitly limited the meaning of “required” in s 106(3)(c) to “mandatory” orders, the practical effect of which is that Mr Whakataka will not have any input from a Department of Corrections psychologist. She says that a contextual approach should be taken to interpreting s 106(3)(c) to allow orders to be made alongside a discharge without conviction. Mrs Wright submits that in the present case, it is in the best interests of the victim and the community that Mr Whakataka have psychological oversight to prevent him from reoffending.17
[16] In support of her submissions, Mrs Wright refers to the legislative history of s 106, with specific reference to s 19 of the Criminal Justice Act 1985 and cls 95 to 97 of the Sentencing and Parole Reform Bill 2002. She notes that the Justice and Electoral Committee did not comment on the wording of cl 97(3)(c), the equivalent of s 106(3)(c), but the wording changed from “penalty” to “order”. Mrs Wright says that this legislative history supports a conclusion that Parliament did not intend for the meaning of “required” to be restricted to “mandatory”.
[17] Finally, Ms Wright contends that the vision of Te Ao Mārama will not be achieved if a broader reading of s 106 (3)(c) is not accepted by the courts. Mrs Wright says the courts’ approach to sentencing has evolved over time and this is another opportunity for the courts to be proactive. Mrs Wright submits that if this Court was unwilling to adopt the interpretation of s 106(3)(c) she contends for, it would be open to require that the discharge without conviction was available “so long as” counselling was completed.
[18] I do not accept Mrs Wright’s interpretation of the legislative history of s 106 of the Sentencing Act. The legislation, and the legislative history, plainly support the
17 Relying on s 27 of the New Zealand Bill of Rights Act 1990 and the United Nations Convention on the Rights of the Child.
view that an order under s 106(3)(c) can only be made where the order would have been mandatory upon conviction.18
[19]To demonstrate, cl 97(3)(c) of the Sentencing and Parole Reform Bill states:
(3)A court discharging an offender under this section may—
…
(c) by order, impose any other penalty that the court is required by any enactment applicable to the offence to impose on conviction.
[20]Similarly, s 106(3)(c) of the Sentencing Act states:
(3)A court discharging an offender under this section may–
…
(c)make any order that the court is required to make on conviction.
[21] The operative words in both the Bill and the Act as enacted are “the court is required” “to impose” or “to make” on conviction. In this respect, the changes between the Bill and Act are purely semantic. If the change in wording was intended to reflect a change in legislative intention as contended for by Mr Whakataka, I consider this would have been plainly stated in the Select Committee reports that Mrs Wright refers to. Instead it is clear that s 106 enables the Court only to impose orders that are mandatory upon conviction; not orders that are merely discretionary.
[22] I accept that the concerns that underpin this appeal are well-intentioned, in that they reflect a desire to help Mr Whakataka personally and protect the victim and community more widely from any possible reoffending as well as promoting the important vision set out in Te Ao Mārama. But these concerns cannot override the clear meaning of s 106(3)(c).
[23] Accordingly, I consider the question of law Mr Whakataka seeks the Court to answer in the negative is doomed. The import of the legislation is plain. The appeal is not meritorious, and it would not be in the interests of justice to extend the time for
18 See also Simon France (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuters) at [SA106.08].
filing the application.19 For completeness, given my conclusions above I also would have not granted Mr Whakataka leave to appeal the question of law under s 296 of the Criminal Procedure Act.
Result
[24] The application for an extension of time to seek leave to appeal on a question of law is declined.
McQueen J
Solicitors:
Crown Solicitor, Gisborne for Respondent
19 I note that I consider the reasons for delay in bringing the appeal inadequate in that the additional two weeks taken to file the appeal do not seem to me to have been likely to make any difference to counsel’s ability to obtain instructions from Mr Whakataka.
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