H v Police HC Christchurch CRI 2007-409-235 [2008] NZHC 114 (13 February 2008)

Last Updated: 7 July 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000235
_{CRI 2007-409-000236}

H

E

Appellants

v

POLICE

Respondent

Hearing: 13 February 2008

Counsel: S J Hembrow for Appellant

C E Butchard for Respondent

Judgment: 13 February 2008

_{JUDGMENT OF FOGARTY J}

[1] These are two appeals against conviction. The main argument is that the Judge ought to have been satisfied under s 107 of the Sentencing Act 2002 that the direct and indirect consequences of the convictions would be out of proportion to the

_{gravity of the offences.}

H AND ANOR V POLICE HC CHCH CRI 2007-409-000235 13 February 2008

107 Guidance for discharge without conviction

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

[3] There were 18 offences of interfering with motor vehicles arising out of one set of behaviour. Two school boys aged 18 and 17 who were intoxicated, in company with at least one other person and possibly a fourth, debadged cars on their way home from a party. Some hundreds of dollars of damage was done.

[4] The case had been adjourned to enable the police to consider whether or not there should be diversion. Ms Butchard has advised that the file shows that the officer-in-charge was against diversion. It records “complainants opposed – charge is too serious”. This aspect of the case was not discussed by the Judge, but having been relied on by Mr Hembrow it is relevant to make some comment. This is also partly because Ms Butchard very appropriately laid before the Court four High Court decisions, all considering the application of s 107, to set a context within which the appeal should be considered.

[5] One of these cases, the decision of Cook v Police High Court Auckland

28 February 2003 Harrison J, contains analysis of the reliance of the police on the views of complainants when exercising the discretion given in s 36(1A) of the Summary Proceedings Act 1957. Section 36(1) and (1A) provides:

36 Withdrawal of information by informant

(1) Any information may by leave of the Court be withdrawn by the informant before the defendant has been convicted or the information has been dismissed or, in any case where the defendant has pleaded guilty, before he has been sentenced or otherwise dealt with.

(1A) A Registrar may exercise the power conferred by subsection (1) of this section to grant leave if the informant is a sworn or non-sworn member of the Police and has notified the Registrar in writing that the defendant has successfully completed a programme of diversion (being a programme conducted by the Police).

[14] The police were bound to undertake an independent and objective assessment of all relevant factors, including the purposes of diversion, Mr Cook’s eligibility, and the complainants’ views, before deciding on diversion. I accept that the victim’s wishes are relevant, but the police have a wider responsibility to the community as a whole. There is no evidence whatsoever that they undertook this balancing exercise when considering diversion for Mr cook; it all points, instead, to subservience to the complainants’ wishes.

(Emphasis added)

[6] I can only endorse what Harrison J said, and point out that Parliament has addressed the subject of victims’ rights in the statute, Victims’ Rights Act 2002. Neither in that statute nor in the Summary Proceedings Act are complainants given any special status on the issue of diversion or not. Mr Hembrow, a very experienced practitioner, advises from the bar that there is now a policy on the part of the police that if the complainants do not agree to diversion there will not be diversion. If that is the policy it is quite wrong, for it is fettering the discretion in a manner not intended by Parliament. It is still the basic statutory setting that all prosecutions, laid either by the police or indictably, are laid on behalf of the community. There is a basic distinction here between private prosecutions by victims or complainants and prosecutions by the Crown or police on behalf of the community. It is reflected as well in the concept that State prosecutors do not act for a party. Rather they are objective ‘ministers of justice’: R v Thomas (No 2) [1974] 1 NZLR 658 (CA), per Wild CJ at 659, citing Crompton J in R v Puddick [1865] EngR 61; (1865) 4 F & F 497, 499, 176 ER

662, 663. This dictum was indirectly reaffirmed by the Court of Appeal in R v E

[2007] NZCA 404 [55] following Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 [10] (PC).

[7] The whole point of Parliament’s policy of diversion is to give young people a second chance in the long term interests of themselves and of the community. Inevitably many complainants or victims will not be able to judge objectively those long term interests, and if their views act as a veto the intention of Parliament is being thwarted. As it turns out Mr Hembrow advises me that the police file shows there is a 50/50 split between the owners of cars as to whether or not there should be diversion.

[8] It should also be noted, and this does not appear to be a factor drawn to the attention of the Judge, that the police, having decided not to divert, elected to lay the informations as unlawful interference with motor vehicles, a charge, which when seen as one line on a page, usually raises an inference that the car has been taken or there has been a serious attempt to break into it. The police did have a discretion to lay lesser charges, such as wilful damage, but elected not to do so.

[9] In this Court Mr Hembrow emphasised that the direct and indirect consequences of conviction need to take account of their number: that there had been

18 convictions entered. Quite properly Mr Hembrow has informed the Court that he may well not have made this point, a significant part, if at all, of his argument before the learned District Court Judge. It does seem to me to be a very significant factor.

[10] The Judge focussed particularly on replying to the usual argument that a conviction would make it difficult to enter the United States. He pointed out that persons with criminal convictions need to apply for a visa but thereby they have an opportunity to satisfy the United States authorities as to their suitability for entering. Ms Butchard has helpfully pointed out that in fact there is something of a regime or policy within the United States which operates as a set of rules.

[11] In this Court Mr Hembrow emphasised the manifest problems to a young person of having 18 convictions for unlawful interference with motor vehicles on his or her record until such time as he or she can utilise the Criminal Records (Clean Slate) Act 2004. It is plain for the next seven years these young men, if they apply for jobs which require disclosure of convictions or apply for credit from banks etc, which may require disclosure, are going to have an awful lot of explaining to do. They may well find that, to take the example of job applications, they simply do not get on to the short list for interview because of these convictions.

[12] If this point was, at least to some extent, put to the District Court Judge, it is not reflected in his decision. Of course Judges are not obliged to reflect in their reasoning all the matters that have been put to them. But in this case I am satisfied that the Judge, at the very least, did not give sufficient weight to this factor, maybe

because of his focus on the United States visa point and also possibly because of his observation:

If I am to be satisfied about the consequences of a conviction there must be some evidence on which I can be satisfied.

[13] It is very clear that Parliament intends the Court, when considering the application of s 107, to take judicial notice of direct and indirect consequences and to that end formal evidence is not required. I do not interpret the Judge as calling for formal evidence. I think his sentence would just as easily read: there must be some basis on which I can be satisfied. That basis does not, however, have to be correspondence tendered or forms downloaded from the internet etc, although from time to time we Judges do get those materials and they are often quite helpful. But what the statute does require is for the Judge to take into account and weigh all the consequences which are apparent to the Judge, be they direct or indirect.

[14] I am satisfied that because there is at least a significant doubt as to whether the Judge did take into account all the consequences that it is appropriate to proceed on the basis of considering this matter afresh.

[15] In this case the Judge ordered the appellants to pay reparation, their one-third share, of a total sum of $2,743.79. Mr Hembrow has been able to assure me from discussions he has had with the boys’ parents that the boys had part-time jobs and were to be paying the reparation from money from their bank accounts and indeed had brought a bank cheque to the Court. Mr Hembrow also emphasised the potential of these boys. One is a New Zealand champion sportsman hoping to become a professional in that sport. The other is a sportsman. One is at University. The boys have expressed remorse and provided letters of apology.

[16] In the end the fact, which tips this in the scale for me, is that the police chose to lay the charges on the basis of unlawful interference with motor vehicles. When Parliament enacted s 107 they called for the Court to take a forward looking view of the impact of a conviction on the offender. Now the gravity of the offence criterion should not be obscured by the way the police charge it. It is appropriate to examine the gravity in terms of the culpability of the actual conduct, the debadging, not

against the title of the informations, unlawful interference. But the convictions are for unlawful interference and the consequences of those convictions being on their record, unlawful interference, is in my view out of proportion to the gravity of the actual behaviour. I am not satisfied that the Judge was alerted to this distinction or took it into account. He certainly did take into account that the offending as such had some substance, although he said they are very much at the lower end of the scale. But I do not think he turned his mind to the consequences of the criminal record for 18 convictions for unlawful interference with motor vehicles.

[17] For that reason, I am of the view that the appeal should be allowed, the convictions set aside. The appellants are discharged without conviction under s 107, leaving the reparation orders in place.

Solicitors:

S J Hembrow, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent