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X v Police

X v Police

Case [2017] NZHC 3298 22 December 2017

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES.

THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND IT MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000148

[2017] NZHC 3298

BETWEEN
X

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 November 2017

Appearances:

S Bonnar QC and T Greenwood for the Appellant L J Fraser for the Respondent

Judgment:

22 December 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 22 December at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

X v NEW ZEALAND POLICE [2017] NZHC 3298 [22 December 2017]

Counsel/Solicitors:
Stephen Bonnar Queens Counsel, Auckland Doug Cowan, Barristers & Solicitors, Auckland Meredith Connell, Auckland

Introduction

[1] On 22 February 2017, Mr X pleaded guilty in the Auckland District Court to one charge of indecent assault under s 135 of the Crimes Act 1961.1 On 10 April 2017, Mr X applied for a discharge without conviction and permanent name suppression, but Judge Thomas refused both applications and Mr X was sentenced to 12 months’ supervision and was ordered to pay the victim reparation of $7,000.2

[2]Mr X appeals his conviction and the refusal to grant name suppression.

Factual background

[3] Mr X is 71 years old. He and his family are friends (and/or business colleagues) of the victim’s family. The victim, aged 21, had started working for Mr X’s business.

[4] At approximately 10.30pm on 18 March 2016, Mr X called the victim asking to meet her. The victim was at her mother’s house at the time. She reluctantly agreed and he picked her up in his vehicle. A few minutes into the journey, Mr X put his hand on the victim’s leg. She removed it and told him not to touch her. Mr X then immediately grabbed the victim’s breasts. The victim again removed his hand and told him not to touch her. Mr X apologised to the victim and blamed his medication for his actions. They continued to drive for approximately ten minutes before turning around. On the drive back in the direction they had come, Mr X asked to hold the victim’s hand, which she allowed him to do out of fear of what he might do if she refused. She held his hand for approximately one minute before letting go. Mr X dropped the victim back at her mother’s house and thanked her for holding his hand.

[5]Two days later Mr X called the victim, apologising again for his actions.

[6]Mr X was charged with indecent assault on 3 June 2016.

[7]On 22 February 2017, Mr X pleaded guilty.

1 The maximum penalty is 7 years’ imprisonment.
2 Police v X [2017] NZDC 7551.

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 X v Police

Details

AGLC: X v Police [2017] NZHC 3298
Case: [2017] NZHC 3298
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Mr X, a 71-year-old man with a history of Parkinson’s disease and dementia, appealed against his conviction for indecent assault and the refusal to grant him name suppression. The lower court had sentenced Mr X to 12 months' supervision and ordered him to pay reparation of $7,000 to the victim. Mr X’s appeal was based on the grounds that the District Court failed to properly assess the aggravating and mitigating factors of the offending, erred in assessing the impact of the offending on the victim, incorrectly determined the seriousness of the offending, and inappropriately utilised the three-strikes legislation as a basis to assess the seriousness of the offence. Mr X also appealed the refusal to grant him name suppression, arguing that the District Court overstated the seriousness of the offending and failed to assess the relative seriousness of his conduct when considering whether name suppression should be granted.

The court granted leave to adduce fresh evidence, including four psychiatric reports and an additional affidavit from the victim. The court found that the gravity of the offending was moderate, considering the aggravating factors such as Mr X's position of trust and the vulnerability of the victim. However, mitigating factors such as Mr X's medical condition and remorse reduced the culpability. The court found that the consequences of a conviction were not out of all proportion to the gravity of the offending, particularly considering the real risk to Mr X's mental health from a conviction. The appeal against the refusal to grant name suppression was allowed, and permanent suppression of the defendant's name was ordered.

In conclusion, the appeal against conviction was dismissed, but the appeal against refusal to grant name suppression was allowed. The court ordered permanent suppression of the defendant's name, considering the threshold criteria under s 200(2)(a) and (e) of the Criminal Procedure Act had been made out, and it was appropriate to exercise the discretion to order permanent name suppression in all of the circumstances.

Orders