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S v Police HC Whangarei CRI 2008-488-36 [2008] NZHC 1339 (28 August 2008)

Last Updated: 18 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI 2008-488-0036}

BETWEEN S

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 28 August 2008

Counsel: Appellant in person

MB Smith for Crown

Judgment: 28 August 2008

_{ORAL JUDGMENT OF RODNEY HANSEN J}

Solicitors: Marsden Woods Inskip & Smith, P O Box 146, Whangarei 0101 for Crown

_{Copy to: Mr N S , c/o Rightside Properties Ltd, P O Box 93, Kaikohe}

S V POLICE HC WHA CRI 2008-488-0036 28 August 2008

[1] On 12 May 2008, after a defended hearing before Judge TH Everitt in the Kaikohe District Court, Mr S was convicted on a charge of assault brought under s 9 of the Summary Offences Act 1981. He was fined $300 after an application to be discharged without conviction was refused. He appeals against conviction and sentence.

Conviction

Background

[2] Mr S is the licensee of the Kaikohe Hotel. When he took over the hotel in October 2006, he inherited the services of the complainant, Sydie Delwyn Marie Ramaka. Within weeks he discovered that she had misappropriated, by means of computer fraud, a large sum of money. Mr S says it was $23,817. Ms Ramaka was prosecuted. For that purpose, the amount she was alleged to have taken was said to be of the order of $17,000. She pleaded guilty and was sentenced to 350 hours community service.

[3] Mr S informs me that on sentencing, the Judge said he would be prepared to make an order for reparation, which would be paid at the rate of $15 per week and would take a total of sixteen years to repay. Alternatively, Mr S could issue proceedings through the Courts. Mr S elected to pursue the latter option. He duly issued civil proceedings for recovery. The assault occurred when he attempted to serve Ms Ramaka with the Court papers.

Evidence

[4] Ms Ramaka said in evidence she had driven into Kaikohe with her mother and had parked in the main street. As she was crossing the road, she was met by Mr S who was pushing his bicycle. He came towards her, thrust out his hand which held the papers, hitting her with the papers in the upper left chest area. She said she was knocked backwards a couple of steps. The papers fell to the ground.

[5] Ms Ramaka’s mother had remained in the front passenger’s seat of the car and was talking to a nephew through the open door when the incident occurred. She said she looked up and saw Mr S come towards her daughter and push some papers into her daughter’s chest. She also said her daughter was forced by the action to take a couple of steps backwards.

[6] Giving evidence in his defence, Mr S said he had seen Ms Ramaka drive past and rode to where he thought she was going. He said he was astride his bike when Ms Ramaka came towards him and he simply held the papers out towards her. She dropped them to the ground, saying words to the effect, “Give them to my lawyer”. Mr S said he then rode off. He denied thrusting the papers into Ms Ramaka’s chest and does not accept that his actions made her take a couple of steps backwards.

Decision

[7] In his decision the Judge observed that this was a familiar “you did it”, “no I did not” situation. He acknowledged that Ms Ramaka might have had a motive to lay a false complaint but preferred the prosecution evidence. He found that Mr S did not merely hold out the papers for service but thrust his hand, containing the papers, into Ms Ramaka’s upper chest with such force as to make her step backwards.

Sentence

Application

[8] Sentencing was adjourned to 16 May to enable Mr S ’ then counsel to file an application for discharge without conviction under s 106 of the Sentencing Act 2002. Mr S swore an affidavit in support of the application. He deposed that he is 49 years of age with no previous convictions. He came to New Zealand in

2001 from the United States. He had been involved in the hospitality industry. He owned licensed premises in Russell and Paihia before acquiring the Kaikohe Hotel.

[9] Mr S deposed that he is actively involved in the Kaikohe community. He is a member of the Kaikohe Business Association. His hotel has put a great deal back into the community through gaming machines and a weekly housie night, the proceeds of which are used to help upgrade and operate the swimming pool at Northland College. Mr S said he is redeveloping the hotel and the surrounding property with a view to it being taken over by a community-based organisation as a tourist centre and museum. He has provided employment for many local tradespeople.

[10] Mr S said he believed that a conviction would affect his suitability to continue holding liquor licences for the Kaikohe Hotel and other properties he may acquire later. He referred to a letter from his liquor licensing consultant who said a conviction for assault may place into question his suitability to work or operate licensed premises.

Decision

[11] In his decision Judge Everitt accepted the consultant’s advice as to the possible effect of a conviction. He went on to refer to a police submission that Mr S maintained his denial of an assault throughout the hearing and expressed no remorse. The Judge said it was a factor to be taken into account, although not determinative.

[12] The Judge said he had asked for Ms Ramaka’s views to be obtained. She had stated her opposition to a discharge without conviction. He said that was another factor to be taken into account, although not determinative.

[13] The Judge then referred to the possible consequence of being unable to hold a licence. He said those sort of consequences are often raised. He referred also to the possible exclusion from certain occupations and restrictions on travel.

[14] The Judge referred to two recent judgments of Gendall J - Hughes v Police

HC WN CRI 2007-485-155 18 March 2008 and Kropelnicki v Police HC WN

CRI 2007-485-63 17 March 2008. At [9] of his decision, he summarised the test enunciated by Gendall J in Kropelnicki as:

... the Court must first give consideration to the gravity of the offending, then the consequences of conviction, and finally whether those consequences are out of all proportion to the former. The discretion is unfettered and each case must be decided on its own merits. But the gateway to considering whether to discharge is a finding, that the consequences of a conviction would be out of all proportion to the gravity of the offending. If not, the sentencing Judge must not discharge the offender and this is a stiff test.

[15] The Judge categorised the assault as at the lower end of the scale of gravity, but said the circumstances of the assault had to be taken into account, in particular that it occurred in a public place, in front of the victim’s mother and no doubt caused distress in those circumstances.

[16] Addressing the consequences of a conviction, he said at [11] that the onus was on Mr S to prove on the balance of probabilities that a conviction would affect his business. He accepted that it might create difficulties for him. He may be called upon to explain his actions. But he said it was for the appropriate authorities to determine whether that makes him unfit to hold a licence.

[17] The Judge concluded that the consequences of a conviction would not be out of proportion to the gravity of the offence. He said at [12] and [13]:

[12] ... A criminal conviction is unpleasant for most people, but so is being shoved in the chest in those circumstances that I found, and the lack of remorse and regret are also matters I take into account.

[13] So balancing all of the matters that are put before me in my discretion, the test has not been satisfied. Mr S has not discharged the onus cast upon him under s 107 and accordingly I decline for the various reasons given to entertain and grant this application.

Conviction appeal

[18] In support of his appeal against conviction, Mr S sought to challenge the Judge’s factual findings. Among other things, he argued that Ms Ramaka’s mother could not have seen the incident as she said in evidence. He contended that her view would have been obstructed by the person she was talking to at the time.

But that possibility was never put to her in evidence and merely serves to illustrate the difficulty faced by Mr S in endeavouring to find fault with findings based on the Judge’s assessment of the evidence and of the witnesses.

[19] The decision of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141, underlines the broad scope of the appellate function, extending in proper cases, to interfering with a decision simply because it is not one the appellate Judge would have reached. But this is not such a case. The Judge’s decision turned purely and simply on which of the competing accounts he believed. After considering the possible motive of the complainant to falsify her evidence, he expressed a preference for her account. I can understand Mr S ’ gall that the word of a convicted thief should be preferred to his but that does not provide a basis on which I could interfere with the Judge’s decision.

Sentence appeal

[20] I turn now to consider the appeal against sentence. Since the decisions of Gendall J relied on by the Judge, the appellant in Hughes has successfully applied to the Court of Appeal for special leave to appeal – Hughes v Police CA 228/2008

4 August 2008. In granting leave, the Court recognised that there is a conflict in

High Court decisions as to the test to be applied to applications under s 106.

[21] On the one hand there is the view, articulated by Gendall J, that by inverting the test laid down by Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR

233 (CA), s 107 of the Act erects a gateway through which an appellant must pass before a Judge can be satisfied that the consequences of a conviction are out of all proportion to the gravity of the offence – see Hughes (CA) at [16] – [17].

[22] Then there are authorities, of which Delaney v Police HC WN CRI 2005-

485-22 22 April 2005, is an example in which Miller J took the view that the addition of s 107 does not change the test expressed previously in s 42 of the Criminal Justice Act 1954 or s 19 of the Criminal Justice Act 1985. His view is that s 107 confers a discretion to discharge without conviction if the direct and indirect

consequences are out of all proportion to the gravity of the offence – see Hughes

(CA) at [19] – [20].

[23] In my view, the Judge erred in adopting the stricter test preferred by Gendall J but that will not be determinative of the appeal. I am satisfied that, on either approach, Mr S should have been granted a discharge.

[24] In my judgment, the Judge fell into error in the exercise of his discretion under s 107. He took into account irrelevant considerations, arguably gave no or insufficient weight to relevant considerations as well as misdirecting himself as to the way in which his discretion should be exercised.

[25] First, I consider the Judge erred in taking into account the police submission that Mr S had maintained his denial of an assault throughout the hearing and expressed no remorse.

[26] On this issue, the Judge said at [5] and [6]:

[5] ...The police say that really should point to the Court exercising its discretion against Mr S , because if he wanted to be remorseful, express his regret, avoid a conviction, he could have sought to enter a plea of guilty very early and seek a s 106 discharge. He has not. He has let matters run their full course and then comes to the Court seeking to be discharged without conviction.

[6] I note that point. It is not determinative at all because the Court’s discretion is not limited and cannot be fettered and there is no limit on when s 106 can be applied or not. It is a factor to be taken into account, for example, as are the wishes of the victim in this case. ...

[27] In making an overall assessment of an offender’s culpability, it is obiously appropriate to give credit for a plea of guilty or expressions of remorse. But the converse does not apply. It is fundamental that on sentence an offender is not to be penalised for exercising the right to defend the charge. Similarly, a failure to express remorse is not an aggravating feature. Both factors simply signal the absence of a mitigating factor and should have been ignored by the Judge.

[28] Secondly, I consider the Judge misdirected himself in taking into account the views of the victim. I accept that a consideration of the harm done to, or other

consequences for the victim, may well be relevant to an assessment of the gravity of the offending. Indeed, as Mr Smith points out, sentencing legislation requires that the victim be heard as part of the sentencing process (Victims’ Rights Act 2002). Those views may have particular relevance in cases where a restorative justice process or similar has been undertaken and the victim specifically seeks leniency – see, for example, Lee v Police HC AK CRI 2005-404-028 27 July 2005 Simon France J at [22]. But I can see no basis in law or justice for taking into account the opposition to a discharge of the victim in this case. Her view on the ultimate issue could have no bearing on the two key factors the Judge was required to weigh.

[29] Thirdly, I consider the Judge erred in casting on Mr S the onus of satisfying him that a discharge was warranted. I accept that there is High Court authority to support that approach – see Police v Devereux HC AK A03/02 27 June

2002 Heath J and McDowell v Police HC CHCH A133/02 11 March 2003 John Hansen J. However, Devereux was decided obiter before the Sentencing Act came into force and the matter was not argued in McDowell. In my respectful view, the better approach is that favoured in cases such as BC v Police HC WN CRI 2003-485-

101 2 June 2004 Ronald Young J, Iosefa v Police HC CHCH CIV 2005-409-64 21

April 2005 Randerson J and Daniels v Police HC WN CRI-2008-485-19 22 May

2008 Clifford J.

[30] In BC v Police, Ronald Young J said at [8]:

The section provides that the Court must not discharge someone unless it is “satisfied” of the matters therein specified. I do not see the use of the word “satisfied” identifies a need for an analysis of onus and standard of proof. I do not consider it is helpful to approach s 107 by suggesting that the onus is on the perpetrator of a crime to establish on the balance of probabilities the statutory imperatives. I think the proper course is for the Court to assess all of the relevant evidence and decide whether it is satisfied that the statutory test is made out.

[31] The approach in those authorities is, as noted in Adams on Criminal Law at SA107.6, consistent with the approach taken by the Court of Appeal in cases where, in the criminal justice context, the Court is required to be satisfied of a matter – see R v White (David) [1988] NZCA 55; [1988] 1 NZLR 264 and R v Leitch [1998] 1 NZLR 420 where the Court said at 428:

The need to be “satisfied” calls for the exercise of a judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt.

[32] I also have concerns that the Judge failed to give sufficient weight to mitigating factors. While characterising the offending as at the lower end of the scale, he made no mention of the previous relationship between the parties which explains why it was that a 49 year old man with an unblemished record should find himself in Court facing a charge of assault. Arguably, Mr S ’ first mistake was to expose himself to the risks of serving his former employee. As the victim of a gross breach of trust, he should have known that his powers of self-restraint would be challenged.

[33] Plainly, the level of force involved was minimal. The victim was uninjured. There is no evidence of emotional harm. On my reading of the evidence, it was a very minor assault which would very likely not have led to a charge were it not for the history between the offender and victim. It was an impulsive gesture rather than a deliberate act of violence. It does not indicate any risk of reoffending. There would be no particular interest served by the entry of a conviction.

[34] In my view, the consequences of a conviction would be disproportionate to the offending. The stain on Mr S ’ character is in itself a serious matter for a man of previous good character with standing in the community. Other consequences, of which possible restrictions on travel is an example, remain as potential, if unquantifiable, outcomes.

[35] I accept Mr Smith’s submission that the possible effect on Mr S obtaining a liquor licence does not add to the case for a discharge. I acknowledge that a conviction would not be a bar to obtaining a licence and there is force in the argument that a licensing authority should be left free to make its own assessment. But if the prospective need to apply for a liquor licence does not add to the case for a discharge, nor should it raise the bar. In the final analysis, I consider that the recurring need to explain an incident which should be left in the past, is itself one of the consequences which weighs in favour of a discharge.

[36] For these reasons, I have come to the clear view that the consequences of a conviction would be out of all proportion to the gravity of his offending.

Result

[37] The appeal is accordingly allowed and the decision of the Judge to refuse to discharge Mr S without conviction is quashed. I make an order under s 106 discharging Mr S without conviction.

[38] The fine of $300 imposed by the Judge must necessarily also be quashed. I

have given consideration to whether in its place I should make an order under s

106(3) to compensate the victim for emotional harm. But there is no information available to me which would permit that course. I am satisfied, in any event, that the order for costs and the financial and other implications of defending the prosecution and pursuing this appeal are in themselves a sufficient penalty.