Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620 (17 May 2011)

Last Updated: 25 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA 51/2011 [2011] NZCA 190

BETWEEN MATTHEW LESLIE BLYTHE Appellant

AND THE QUEEN Respondent

Hearing: 7 April 2011

Court: Chambers, Ellen France and Wild JJ

Counsel: S W Hughes QC for Appellant L C Preston for Respondent

Judgment: 17 May 2011 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal is dismissed.

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] Mr Blythe seeks leave to appeal out of time against the refusal, by Judge Inglis in the District Court at Wanganui on 15 December last, to discharge him without conviction.^[1] He had pleaded guilty to a charge of assault under s 196 of the Crimes Act 1961. Mr Blythe contends the Judge erred in several respects, and should have discharged him.

Extension of time to appeal

[2] The short delay in appealing was due to counsel’s oversight during the Christmas vacation. There is no resulting prejudice to the Crown, which does not oppose an extension of time. We extend time to 1 February last, the day on which the appeal was filed.

What had happened

[3] Mr Blythe is a police officer. At the time of the assault he was a dog handler. In the early hours of 12 April 2009 he was called to a supermarket in Wanganui. A break in was suspected because the alarm had been activated.
[4] Mr Blythe saw a man running away from the supermarket. The man did not heed his call to stop. Mr Blythe released his young police dog, but it misunderstood his commands and came back to him. Mr Blythe chased the man, who was intercepted by two other police officers. They were in the course of arresting the man when Mr Blythe came up and punched him in the side of his face knocking him to the ground. He was not badly injured: a chipped tooth and some bruising. He lost a day’s work.
[5] It transpired that the man was innocent: he was running home from a function, drunk.

The Judge’s sentence

[6] Upon sentence, after dismissing Mr Blythe’s application for a discharge without conviction, Judge Inglis ordered him to pay $1,500 emotional harm reparation to the man he had punched. Mr Blythe had offered to pay that amount. She did not impose any other sentence, but ordered him also to pay Court costs.

The test for a discharge without conviction

[7] Judge Inglis summarised her jurisdiction under s 106 of the Sentencing Act 2002 as follows:^[2]

Section 106 provides the jurisdiction to discharge an offender without conviction. Section 107 provides guidance on the exercise of the Court’s discretion. It provides that:

The Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

In R v Hughes [2008] NZCA 546, Gendall J endorsed a three step approach and stated that:

The Court must give consideration to the gravity of the offending, then the consequences of conviction and then, finally, whether those consequences are out of all proportion to the former.

As Gendall J observed, the discretion is unfettered, with each case to be considered on its merits. That approach was upheld as logical on appeal. The discretion is wide and in my view there is no onus of proof on the defendant. The requirement is for the Court to assess all the relevant material before it and to be satisfied that the disproportionality test has been met.

[8] Mrs Hughes QC told us she accepted that the test to be applied was the three-step process outlined in that passage. This Court outlined the approach to ss 106 and 107 of the Sentencing Act 2002 in R v Hughes.^[3] Not that it greatly matters, but Judge Inglis slightly confused the position. Gendall J was the Judge whose decision was upheld by this Court in Hughes. The three-step approach was originally suggested by Richardson J in this Court in Fisheries Inspector v Turner, although the Judge did not so describe it.^[4] Hughes refers to the three-step approach^[5] and noted^[6] that Gendall J had referred to it.
[9] We agree with Hughes that:^[7]

...The test is the test. Simply, under s 107 the court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, before it may consider the exercise of the discretion conferred by s 106 to discharge without conviction.

[10] Later in the judgment in Hughes, the Court said:^[8]

... Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. ...

[11] That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A which deals with cases of violence against and neglect of children under 14 years, are obviously relevant to “the gravity of the offence”. But the content of ss 7, 8 and 9 is not. For two reasons, we wonder whether the passage we have set out at [10] is an inadvertent misstatement. First, it cannot be reconciled with the correct statement of the position in the excerpt we cite at [9]. Secondly, it does not reflect the Court’s approach in reviewing the way in which Gendall J applied the s 107 disproportionality test.
[12] As was pointed out in Hughes,^[9] the Court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test), and the matters dealt with in ss 10 and 10B must all be taken into account. That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes.^[10]
[13] Our description of the discretion under s 106(1) as residual is deliberate. That is because it will be a rare case where an offender has passed through the s 107 “gateway”, but is then not discharged under s 106(1). Nevertheless, there is a discretion in those rare cases in light of the statutory wording. Section 106(1) does not say that the Court must discharge the offender without conviction where s 107 is satisfied. Nor does s 107 say that. What s 107 does make clear is that an offender must not be discharged unless the disproportionality test in that section is met.
[14] The three-step approach is but a helpful and practical way of applying the s 107 test. As it was followed both by Judge Inglis and by Mrs Hughes in her submissions to us, we will take each step in turn, testing the errors contended for by Mrs Hughes against the judgment, to see whether they are made out.

Step 1: the gravity of the offending

[15] Judge Inglis began by observing that this step required her to assess Mr Blythe’s overall culpability, including “such matters as a guilty plea, expressions of remorse, the Court’s assessment of how likely it is that the offender will re-offend and the victim’s perspective”. She cited two judgments of the High Court in support.^[11] For the reasons we have explained, the Judge erred in her description of the scope of step 1, and the two High Court judgments are wrong insofar as they provide support. However, the Judge’s error is peripheral to this appeal.
[16] Judge Inglis then made this assessment of the gravity of this assault:^[12]

I do not consider that the offending in this case can be characterised as being at the lower end of the scale in terms of seriousness. The victim was in a position, in my view, of significant vulnerability given that he was, at the time the assault occurred, being attended to by two other police officers. He was also apparently very drunk. As the Crown points out; he had his hands behind his back and was in the process of being arrested.

[17] Mrs Hughes submitted this assessment was wrong, for four main reasons. First, because the Judge found the victim bore no responsibility for the events that night. Nowhere in her sentencing remarks does Judge Inglis make such a finding. What she did say was this:^[13]

While the defendant believed that the victim had been involved in the alarm activation and did not stop when he was warned, and the defendant was no doubt frustrated, the assault was unwarranted. ...

[18] Implicit in that is acceptance by the Judge that the victim had continued running off when Mr Blythe commanded him to stop. We do not accept that the Judge can be criticised for holding that the victim contributed to events only to that extent.
[19] Mrs Hughes’ second criticism was that the Judge wrongly concluded that Mr Blythe’s occupation as a police officer was an aggravating factor. Judge Inglis accepted that the offending was out of character. She mentioned the numerous references that had been placed before the Court, which underlined the personal and work-related stress Mr Blythe was under when the incident occurred. She was dismissive of his previous convictions, which were for driving related offences well in the past. She then said:^[14]

... However, the defendant is a police officer and committed the assault in the course of his duty. As I say, the victim was in a particularly vulnerable position and he was assaulted with a blow that knocked him to the ground. It is accepted that it was a deliberate blow to the victim. In my view, this was a serious occurrence and cannot properly be regarded as minor offending.

[20] Although accepting it was a difficult submission, Mrs Hughes urged that Mr Blythe’s actions were born of personal frustration, depression and exhaustion, and were “not some over-zealous exercise of his powers as a police officer”. In short, Mrs Hughes submitted that this offending had little or nothing to do with the fact that the appellant was a police officer. Like the Judge, we cannot accept that. There are two points. Firstly, making all due allowances for the matters that triggered this offence – as we think did the Judge – the facts remain that the appellant was a police officer on duty at the time, and assaulted a man who was being arrested by two other police officers. On Mrs Hughes’ analysis, no police officer who offended in the way the appellant had would ever be acting in the course of his police duties, because he would be doing something that he should not do as a police officer. That analysis cannot be correct. Secondly, the possible consequences to Mr Blythe’s Police career were at the forefront of Mrs Hughes’ submissions on step 3. We think it inconsistent for Mrs Hughes to urge that the Police perspective be disregarded at step 1.
[21] The third error alleged by Mrs Hughes was that the Judge gave no weight to the fact that the District Commander had been prepared to see the charge reduced to a common assault under s 9 of the Summary Offences Act 1981. We were told that had not occurred because of issues of limitation. Mrs Hughes did not dwell on this matter, which is not referred to in the Judge’s decision. We do not think there is much substance in the point. The Judge was sentencing Mr Blythe after he pleaded guilty to a charge of assault under the Crimes Act. It is the gravity of the assault, not the Act under which the charge is laid, that matters. And it is not the District Commander’s view of the assault that is relevant, but the Judge’s.
[22] The fourth error alleged by Mrs Hughes was that the Judge wrongly concluded that the offending could not be characterised as at the lower end of the seriousness scale. This point overlaps the previous ones, particularly the first two. Mrs Hughes laid particular emphasis on the fact that Mr Blythe had struck a single blow, directed in frustration, and that an apology had been promptly offered and accepted.
[23] Some of those points do not accord with the summary of facts on which the Judge rightly proceeded. The relevant portion of this read:

The Police dog ran past the victim and the Police officers, so the victim was told to face the hedge in order to be handcuffed.

The victim was compliant with the Police Officers. He faced the hedge with his hands at his sides.

At this point the defendant ran up to the victim and two Police Officers, asked the victim why he had run, and then punched the victim to the left side of his face with his right fist.

The force of the punch caused the victim to fall forward on to his face on the grassed area.

The two Police Officers in attendance believe that the victim momentarily lost consciousness as a result of the punch. They observed that his hands remained at his sides as he fell face-first on to the ground and that he did not attempt to break his fall.

[24] The Judge referred to the victim’s views in this passage:^[15]

The victim’s views are set out in the victim impact statement which is before the Court. He says the defendant drove him home that night and that they shook hands. He says that he does not want anyone to get into trouble over the incident. ...

[25] Ms Preston, for the Crown, referred in somewhat more detail to what the victim had said, including when interviewed by the Police Complaints Authority a week after the incident. We need not go into that. The Judge adequately and accurately recorded and took into account the victim’s views, as set out in his statement for the sentencing Court.
[26] To summarise, although the Judge misdirected herself to the extent we have mentioned at [15] above, that misdirection has no real impact on this appeal. We do not accept that the Judge erred in any of the four respects urged by Mrs Hughes.

Step 2: the consequences of a conviction

[27] At this second step, Mrs Hughes took issue with Judge Inglis’ statement:

... The defendant was acting in the course of his duties as a police officer. The police are in a special position of trust and authority. The flipside of that is that they must not abuse that position. The victim was in a vulnerable position. The victim suffered injuries. The assault was deliberate. ...

[28] That passage appears at [15] of the Judge’s sentencing notes, where she was dealing with step 3. The Judge dealt with step 2 at [11][14] of her notes. Mrs Hughes did not take issue with anything the Judge said in relation to step 2, and we do not think she could. The Judge noted Mr Blythe’s 23 years of committed Police service, including a recent commendation for bravery. She referred to the Police Code of Conduct and to the letter from the Senior Legal Adviser to the Police Association which had been provided to the Judge. The Judge concluded that the Commissioner of Police remained free to determine the appropriate disciplinary outcome, irrespective of whether or not a conviction was entered. Although she accepted that, Mrs Hughes suggested that dismissal was “more probable” if Mr Blythe was convicted, as opposed to discharged without conviction.
[29] We see no error in the Judge’s consideration at step 2. What will influence any disciplinary action taken by the Police against Mr Blythe is surely the criminality involved in this assault, not the outcome of Mr Blythe’s application under s 106. Because the unknown disciplinary outcome was one of the factors relevant to the Judge’s application of the s 107 test here, it will be problematic for the Police to place too much reliance on the Courts’ decisions – that of Judge Inglis and this judgment.

Step 3: direct and indirect consequences of a conviction out of all proportion to the gravity of the offence?

[30] This is the crux of the s 107 “gateway” test. It is correctly step 3 because the assessment it requires cannot be made until the Judge has worked through steps 1 and 2. Judge Inglis began by collecting together those aspects of the offending she had already mentioned. The passage we have set out at [27] was part of this. The Judge also mentioned Mr Blythe’s guilty plea, the way he had made amends to the victim, the victim’s forgiving attitude, the personal and professional stress Mr Blythe was under at the time, and the possibility that he will lose his job and suffer some reputational effects. She reiterated her assessment that “the likelihood or otherwise of those potential outcomes is very uncertain”.
[31] Judge Inglis then said this:

[16] I accept counsel’s submission that individual deterrence may not be a key sentencing purpose in this case, however, it is important in my view that the offending in this case be publicly denounced, that the defendant is held accountable and responsible for the assault and that it is made plain that offending of this sort is not acceptable by way of general deterrence. That will, if nothing else, send a message to other members of the police.

[17] Weighing all matters before me I find it impossible to say that the entry of a conviction would be out of all proportion to the gravity of the offending. I accordingly dismiss the application.

[32] For the reasons we explained at [9][11] above, we do not agree that general deterrence (the need the Judge saw to send a message to other police officers) is engaged at the s 107 stage. The Judge lost the correct focus at step 3. Having assessed the gravity of the offence, she needed then to consider whether the direct and indirect consequences of a conviction would be out of all proportion to that gravity. That comparison was not made or assisted by considering whether general deterrence required a conviction. What the Judge needed to do was remind herself of the consequences of a conviction as she had assessed them at step 2, and decide whether they were out of all proportion to the gravity of the offence as she had assessed it at step 1.
[33] At step 2 the Judge found that there was no certainty that a conviction would end Mr Blythe’s career with the Police. That was obviously the main concern put to the Judge, because she stated that it was “really the core issue in this case”.^[16] We have already mentioned that Mrs Hughes accepted that she could not say that dismissal was inevitable if the conviction stood, only that it was more probable than if Mr Blythe had been discharged without conviction. In that situation, it cannot be said that the s 107 test was met. We accept that a conviction will be a black mark on Mr Blythe’s lengthy and otherwise untarnished, indeed exemplary, Police record. But given that we uphold the Judge’s assessment that this was a serious incident of assault, we do not consider the s 107 test was met.

Result

[34] It follows that Mr Blythe’s appeal must be dismissed.

Solicitors:
Crown Law Office, Wellington for the Respondent

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^[1] R v Blythe District Court, Wanganui, CRI 2009-083-2287, 15 December 2010.
^[2] At [4].
^[3] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
^[4] [1978] 2 NZLR 233 (CA), at 241-242.
^[5] At [16][17].
^[6] At [67].
^[7] At [23].
^[8] At [41]. The same statement is made earlier, at [37].
^[9] At [10].
^[10] At [38].

^[11] Delaney v Police HC Wellington, CRI 2005-485-22, 22 April 2005; Vincent v Police [2007] DCR 277.
^[12] At [6].
^[13] At [7].
^[14] At [10].
^[15] At [9].
^[16] At [11].