H v Police HC Auckland CRI 2006-404-344 [2007] NZHC 634 (11 July 2007)

Last Updated: 29 June 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2006-404-344}

BETWEEN H

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 16 April, 25 June and 27 June 2007

Appearances: Danielle Beston for Appellant

Anna Longdill for Respondent

Judgment: 11 July 2007

_{JUDGMENT OF HARRISON J}

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

_{4.00 pm on 11 July 2007}

SOLICITORS

Danielle Beston (Auckland) for Appellant

_{Meredith Connell (Auckland) for Respondent}

H V POLICE HC AK CRI 2006-404-344 11 July 2007

Introduction

[1] Mr H pleaded guilty in the District Court at Auckland on

28 July 2006 to three charges – first, threatening to kill: s 306(1)(a) Crimes Act

1961; second, wilful damage: s 11(1)(a) Summary Offences Act 1981; and, third, unlawfully being on a property: s 29(1)(b) Summary Offences Act 1981.

[2] On 19 September 2006 Judge Russell Callander convicted Mr H on all three charges and sentenced him to perform 100 hours of community work and pay reparation of $500.

[3] Mr H has appealed against his conviction on the ground that he should have been discharged without conviction: ss 106 and 107 Sentencing Act

2002. His counsel, Ms Danielle Beston, filed a comprehensive memorandum of submissions raising many grounds which she supported in oral argument when the appeal was first heard on 16 April 2007. However, I adjourned argument to enable Ms Beston to adduce additional evidence, and file supplementary submissions. I heard resumed argument on 25 and 27 June.

[4] Mr H is a 21 year old Tongan national who has lived in New Zealand for some years but does not enjoy permanent residence. He applied for that status on 25 January 2005 but his application is yet to be determined. He has been granted work and visitor permits which are due to expire in December 2007.

[5] Mr H is also an outstanding rugby player who has represented

Auckland and is regarded as having real future prospects in the sport.

District Court

[6] Judge Callander’s understanding of the relevant facts was as follows: at [6]- [10] sentencing notes:

(1) Mr H lived with family members in Mt Roskill. The police had reported an ongoing problem of violence and conflict in the area

between two distinct gangs. On 6 November 2005 Mr H was one of a large group of young men who went to a house at

119 O’Donnell Avenue in Mt Roskill looking for Edwin Pasi, a young man who lived there with a number of other people;

(2) Mr H ’s group went into the house and smashed eight windows on one side and all the glass in the front door. The windows, wing mirrors and tail lights of three vehicles parked there were also broken. One member of the visiting group threw lighted fireworks inside the house;

(3) Mr H ’s role lay in using a piece of 4x2 timber to smash the windscreen and right hand wing mirror of one of the three vehicles. The owner of the van came out of the house at that point and remonstrated with Mr H . He directed Mr H to leave and threatened to kill him. Mr H responded by stating that if his group found Edwin Pasi tonight ‘we will kill him’.

[7] Initially the Judge understood that Mr H went to the O’Donnell Avenue property as a member of what was known as the JDK gang. However, he accepted that Mr H was not associated with it.

[8] Ms Beston explained that Mr H went to the property in response to a call from his cousin. He agreed to go because he wanted to exercise a degree of moderation. Ms Beston said it was not Mr H , but his cousin, who hit the vehicle with the timber. Ms Beston acknowledged that he was guilty as a party to the offence of intentional damage even on this version. She said also that Mr H was surprised by the fact that the threat to kill from the victim was directed at him. He did not intend to carry out his threat in retaliation.

[9] Ms Beston accepted responsibility for failing to ensure the summary of facts was amended to record Mr H ’s role as a party to the offence of wilful damage. It is difficult, however, to accept that Ms Beston would have consented to a summary of facts being presented to Judge Callander on the very different and more

serious basis that Mr H was the principal offender. While I must proceed on the same factual premise as the Judge, I note that this offending was not influential in his decision to enter convictions.

[10] Judge Callander noted that Mr H and his victim had attended a restorative justice conference. It emerged that both were part of the same extended Tongan family. Large numbers attended the conference. A reconciliation between both sides followed. In particular, Mr H expressed his remorse and offered to pay $500 by way of reparation. The victim and his family requested the sentencing Judge to discharge Mr H without conviction.

[11] Judge Callander identified the appropriate question for his consideration in these terms:

[24] ... It is a matter of assessing the gravity of the offending and then looking at the direct and indirect consequences of any conviction as to career and application for residency, and it is a question of whether the conviction would be out of proportion to the gravity of the offending.

[25] As I see it, what that really means is that the more serious the offending, the harder the climb to achieve success with an application of this type... usually applications of this sort relate to quite minor offending where there is minimal culpability on the part of the offender.

[12] The Judge placed primary weight upon the offence of threatening to kill, observing:

[26] ... While, of course, there was no intent on [Mr H ’s] part to actually carry out the threat to kill Edwin, in the general circumstances of this attack on the house, and given what we know occurs in gang violence situations, a lot worse might have happened. Certainly a threat to kill would have alarmed and may well have provoked more violence on the part of the other young men who were present. I believe it was a grave offence and is not one to be treated lightly.

...

[28] I think it has probably been a major learning curve for him. It is just sad that his career prospects lie in rugby football where there is also a lot of public concern with issues of violence. Nobody wants, in any sporting field, any hint of gratuitous violent behaviour and that is obviously something that the police were aware of in their opposition to this application.

[29] As I have said [Mr H ] is 21. I do not think there is any real likelihood of further offending on his part. He is genuinely sorry for what happened and all those matters are in his favour.

[30] Weighing the public interest and reflecting on the various factors that I have referred to, I do not see at all that an application of this sort can be successful and I certainly will not grant the application to discharge him without conviction.

[13] The Judge had earlier noted the two grounds advanced in support of Mr H ’s application for a discharge without conviction: at [20] and [21]. They were that a conviction was likely to imperil his immigration status and his rugby career. The Judge was unable to understand what impact a conviction might have in either respect, although he assumed it would be adverse. I am satisfied that this void was the result of a failure to provide the Judge with a satisfactory evidential base together with supporting argument. The nature and extent of the consequences of a conviction for Mr H did not fully emerge until supplementary evidence and submissions were filed in this Court.

Supplementary Evidence

[14] The grounds of Mr H ’s appeal were interrelated. They were that the effect of the convictions would be disproportionate to the gravity of Mr H ’s offending because the likely consequence would be his loss of the right to remain permanently in New Zealand or to travel overseas as a member of a representative sporting team, thus depriving him of a professional career as a rugby player. I heard further evidence relating to all aspects of these contingencies.

[15] Judge Callander understood that NZIS had declined Mr H ’s application for permanent residence. That was correct but it now transpires that the NZIS decision was based on a misunderstanding and the application remains under review. Mr H has disclosed to NZIS the existence of the three convictions and the underlying facts and must apply for a character waiver to advance his application. In exercising its discretion as to whether to grant this waiver, Ms Beston understands the NZIS will consider whether Mr H is able to make a contribution to New Zealand and all other relevant circumstances including the result of this appeal.

[16] As noted, Mr H is in receipt of work and visitor’s permits which will expire in December 2007. NZIS was aware of his convictions when granting the applications. The result of this appeal may also affect Mr H ’s applications for renewal if his application for permanent residency is not granted in the interim.

[17] I had the benefit of evidence from Mr David Tomoana relating to Mr H ’s rugby career. Mr Tomoana is an experienced former police officer. He now provides life training to the New Zealand Rugby Union as part of a professional development programme. He is responsible for assisting young rugby players with risk assessment and management.

[18] Mr Tomoana explained the basis for the Auckland Rugby Football Union’s confidence that Mr H has the talent and ability necessary to succeed as a professional rugby player. I accept his evidence that, even if NZIS allows him to remain in New Zealand, Mr H ’s convictions will cause him significant difficulties in obtaining visas to travel to some countries while a member of representative or national rugby teams.

[19] Mr Tomoana also provided an informed insight into the effect of these convictions on Mr H ’s life. He said that Mr H went into his shell in the months following his apprehension in November 2005. He lost interest in and commitment to his rugby career. On Mr Tomoana’s assessment, Mr H was a shy, naïve and socially unaware person who was overwhelmed and depressed by the events leading to his conviction. His distress was compounded by a sense of injustice that only two of the group of offenders, as Judge Callander accepted, were ever apprehended and punished. With balance and realism, Mr Tomoana volunteered that Mr H was struggling with anger management and alcohol abuse problems at the time.

[20] Mr Tomoana also gave an explanation of what led to Mr H ’s participation in the offending. He had accompanied his cousin who sought to retaliate for an unprovoked attack on his mother’s (Mr H ’s aunt’s) house.

Mr H had lived with her for some years and the attack affected him in the same way that he would experience as if it was on the family home.

[21] In Mr Tomoana’s assessment, which I accept, Mr H has turned his life around. He has addressed his anger management problems. He has married and immersed himself fully in church life. He has assumed significant community and ethnic commitments. He is a motivational speaker to young Pacific Islanders against gang membership and associations and alcohol abuse. He has developed leadership skills on and off the rugby field. He has been selected for the Auckland NPC team and has the prospect of a contract with the Blues.

Decision

[22] Initially I thought that the facts were of such gravity as to justifiably eliminate any scope for exercising the statutory discretion in Mr H ’s favour. Judge Callander was most influenced by the charge of threatening to kill and its maximum penalty of seven years imprisonment. He described the charge as grave and in the general circumstances of the attack there was a prospect ‘in gang violence situations’ that Mr H ’s words may have provoked more violence from the others. However, the summary of facts does not support this speculative inference. In an affidavit sworn in this Court the victim stated that only Mr H and his cousin were present at the property when he uttered the threat.

[23] I am satisfied that Judge Callander erred in exercising his statutory discretion in placing undue weight on the penalty. Parliament’s prescription of a maximum term of imprisonment of seven years is not of itself determinative. In Boonen v Police HC WN CRI 2003-485-41 14 October 2003, Wild J allowed an appeal against a refusal to discharge without conviction by a 17 year old college student who had pleaded guilty to robbery which carries a maximum sentence of 10 years imprisonment. In Lee v Police HC AK CRI 2005-404-028 27 July 2005, Simon France J allowed a similar appeal by an 18 year old student who pleaded guilty to one charge of burglary for which the maximum sentence is also 10 years imprisonment.

[24] What is of more importance is an evaluation of the circumstances of the offending, in order to assess its true gravity. On reflection, and with great respect, I agree with Ms Beston that Judge Callander may have overstated the situation. Mr H ’s statement – ‘if we find Edwin tonight we will kill him’ – was a spontaneous reaction to the victim’s threat to visit the same fate on Mr H . It was plainly instantaneous; something said in the heat of the moment by a young and unsophisticated man. There was no evidence that the victim treated the statement seriously, or that he was adversely affected by it, or that it was contemporaneously communicated to Mr Pasi. The Judge was satisfied that Mr H did not intend to carry out the threat. The Judge’s imposition of a sentence of 100 hours of community work places the offending at the low end of the scale.

[25] In my judgment the Judge erred separately when exercising his discretion in failing to give any or proper weight to a combination of favourable factors. I agree with Miller J in Delaney v Police HC WN CRI 2005-485-22 22 April 2005 at [29]; the phrase ‘the gravity of the offence’ includes and extends to ‘anything that may effect the Court’s subsequent assessment of overall culpability’. Smellie J was to the same effect earlier in Stewart v Police [1989] BCL 1476, and Cooper J in G v Police [2006] DCR 346 agreed with Miller J in Delaney.

[26] Included within the relevant umbrella of the subsequent assessment are Mr H ’s early entry of guilty pleas, his expressions of remorse, his participation in a restorative justice programme, the Judge’s own satisfaction that he was unlikely to re-offend, the victim’s plea for leniency, and Mr H ’s offer to pay reparation of $500. The Judge recognised these factors. But he did not give any of them – except possibly the likelihood of further offending and remorse – tangible weight in the balancing exercise.

[27] Also I have the benefit, which Judge Callander did not enjoy, of the full picture of, first, the real risk that these convictions will have a decisively adverse effect on Mr H ’s immigration and career prospects and, second, the extent and success of Mr H ’s reformatory steps since November 2005.

[28] Standing back, and considering the case afresh, I am satisfied that the consequences for Mr H of these convictions would be out of all proportion to the gravity of his offences. The offending, while serious, was aberrant, and quite out of character. Like Judge Callander, I am satisfied that Mr H will not re- offend. He is a first offender. He is remorseful and has reconciled with his victim who suffered no lasting harm. He has the capacity to make a positive contribution to New Zealand society, and in particular to the wellbeing of the Tongan community here. He has used this unfortunate experience affirmatively to turn his life around.

[29] I am satisfied also there is a real risk that the convictions will inhibit, if not end, Mr H ’s prospects of obtaining permanent residency and of a successful sporting career in New Zealand and thus his prospects of professional, personal and financial enhancement, and will deprive the community of his potential contribution. In my judgment this result would be a disproportionate reaction by the State to what I accept was a spontaneous error of judgment. Mr H deserves another chance.

[30] I regret that I must differ on this occasion from a Judge of great experience and wisdom but I have had the advantage of additional evidence which, had it been presented to him, may have led to a different result in the District Court. I record also that without the assistance and support of the rugby authorities, and in particular Mr Tomoana’s commitment to Mr H ’s cause, his appeal would have failed.

[31] In the result Mr H ’s appeal is allowed. The convictions entered against Mr H in the District Court at Auckland on 19 September 2006 are quashed and the sentence of 100 hours community work is vacated. I assume that Mr H has paid the sum of $500 ordered by way of reparation. If not, it is a condition of this order that he makes payment within seven days; failing compliance, this judgment will be vacated and the appeal will be dismissed.

_{[32] There will be no order as to costs.}

Rhys Harrison J