Police v Hicks [2018] NZDC 6846 (10 April 2018)

Last Updated: 16 April 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT PORIRUA

CRI-2017-091-001700

[2018] NZDC 6846

NEW ZEALAND POLICE Prosecutor

v

[NATHAN HICKS] Defendant

Hearing:	10 April 2018
Appearances:	Sergeant C Stewart for the Prosecutor P Foster for the Defendant
Judgment:	10 April 2018

RULING OF JUDGE J A R JOHNSTON [ON S 106 APPLICATION]

[1] [Nathan Hicks], you are 23 years old.

[2] You have pleaded guilty to one charge of causing harm by posting a digital communication. That charge carries a maximum penalty of two years’ imprisonment and/or a fine of up to $50,000 pursuant to s 22, Harmful Digital Communications Act 2015.

[3] You have applied to be discharged without conviction pursuant to s 106 Sentencing Act 2002.

[4] The police do not oppose that application.

NEW ZEALAND POLICE v [NATHAN HICKS] [2018] NZDC 6846 [10 April 2018]

[5] I have considered the written submissions filed in support. I have also listened to the submissions made by Mr Foster on your behalf. The relevant facts have been read to the Court just now, and I do not need to repeat them.

[6] In considering your application for a discharge without conviction, the Court is required to consider the three-step process set out in Z v R.1

• (a) The Court must first consider the gravity of the offending, including all the aggravating and mitigating factors relating to the offending and to you the offender.
  
• (b) The Court must then identify the direct and indirect consequences of a conviction for you.
  
• (c) The Court must then consider whether those consequences are out of all proportion to the gravity of the offence.
  

[7] If the Court determines the consequences are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge.

[8] I turn to considering the gravity of your offending and an assessment thereof. Aggravating features are that you sent emails not to just the complainant, but also to three mutual friends. This is because you thought that she had disclosed personal information about you. I note from the victim impact statements that the complainant suffered an emotional breakdown as a result of your actions, and also had to take time off work. Your offending has also impacted on her relationship with others.

[9] By way of mitigation, you have entered a guilty plea. Mr Foster has explained that although a not guilty plea had been initially entered, there were a number of legal issues that had to be considered and those were considered appropriately, and I therefore give you credit for the guilty plea.

[10] At the time of the offending you were [receiving medical treatment].

1 Z v R [2012] NZCA 607

[11] The actions of the victim are relevant. Whilst you caused her distress, clearly you too were also caused distress. It appears that you did try to discuss the matter with her, but she refused to engage with you. The pictures that were posted by you, I note, were by private email.

[12] Mr Foster has also added today that all along there was really no intent by you to cause the complainant harm, but you acknowledge that is what has occurred.

[13] The aggravating and mitigating factors relating to you: I find no aggravating factors. In terms of mitigation, you have no previous convictions, you have recently graduated with [a bachelor’s degree] , your age; you are [under 25], you previously, apart from this matter, are of good character.

[14] Taking all of those matters into account, including the victim’s views, I assess the gravity of your offending to be in the low category for offending of this type.

[15] In relation to the direct and indirect consequences of a conviction, I have considered the submissions regarding the impact on prospective employment. I note that those consequences do not need to be determined to a legal standard of proof. The sentencing Judge does not need to be satisfied that the direct and indirect consequences will occur. Instead, the Court needs to be satisfied that there is a real and appreciable risk of such consequences.

[16] Turning now to the disproportionality test, s 107 requires that a discharge must not be granted unless the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence.

[17] By a fine margin, I am persuaded that if you are convicted, the direct and indirect consequences of a conviction would be out of all proportion to the gravity of your offending.

[18] Because the s 107 gateway test is satisfied, there remains the residual discretion. In deciding whether to exercise that discretion, I take into account the

relevant sentencing purposes and principals, including denunciation, deterrence, and looking to impose the least restrictive outcome that is appropriate in the circumstances.

[19] I also note that you are willing and able to pay a sum of compensation to the victim in full by today.

[20] For all of those reasons, on the charge of causing harm by posting a digital communication you are discharged without conviction.

[21] You are ordered to pay $500 compensation and that is to be paid in full by today.

[22] You are also ordered to pay Court costs of $130.

[23] I also note that I have discussed the issue of the photographs, the digital documents with Mr Foster. He is prepared to give an undertaking and you are also prepared to provide a written undertaking that all images relating to the complainant will be permanently deleted by you. That will be provided in writing to the Court today.

J A R Johnston District Court Judge