B v Police HC Auckland CRI 2009-404-136 [2009] NZHC 1294 (21 September 2009)

Last Updated: 18 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2009-404-136}

BETWEEN B

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 21 September 2009

Counsel: P Boylan for Appellant

E Wilson for Respondent

Judgment: 21 September 2009

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 2213, Auckland

Counsel:

_{P Boylan, PO Box 28172, Epsom, Auckland}

B V NEW ZEALAND POLICE HC AK CRI 2009-404-136 21 September 2009

Introduction

[1] On 4 September 2008, Mr B entered a plea of guilty to one charge of assault. He signalled an intention to apply for a discharge without conviction under s 106 of the Sentencing Act 2002.

[2] Sentencing was adjourned until 1 December 2008 to enable Mr B to undertake the CADS programme. Subsequently, sentence was adjourned again until

27 January 2009. Mr B was sentenced by Judge Gittos in the District Court at

Auckland on that day.

[3] Judge Gittos declined a discharge without conviction. Mr B was convicted and sentenced to pay a fine of $500 and Court costs. The maximum penalty available for the offence was one years’ imprisonment. He appeals against both conviction and sentence.

Background

[4] At approximately 3.20am on Sunday 16 March 2008, Mr B was at a bar on Karagahape Road, in Auckland. Mr B had been drinking for most of the night and was heavily intoxicated.

[5] He is a musician. He got up onto the stage, where members of a band (including the victim) were packing up after they had played. Mr B was asked to take care around the band’s equipment and to leave the stage. He neglected to do so. Members of the band then attempted to remove him from the stage. This caused him to become agitated.

[6] At some point Mr B threw an empty glass bottle of beer at the victim. The bottle hit him on the left side of his forehead. Mr B was restrained by security officers until the Police arrived.

[7] At the time of the events in issue, Mr B was aged 31 years and had not previously appeared before the Court.

Sentencing in the District Court

[8] After explaining the factual background, Judge Gittos accepted that Mr B was a man of unblemished good record and someone who had considerable achievements within the community. References and materials had been put before the Court to attest to Mr B general prior good character. However, the Judge was concerned to deal with the specific criminal conduct alleged. He found that Mr B had had too much to drink and threw a bottle.

[9] In considering whether to grant a discharge without conviction, the Judge took the view that the question was whether the need to deter conduct of that type was outweighed by other factors, meaning that a conviction would be out of all proportion to the gravity of the offending.

[10] The Judge was conscious also that Mr B ’ partner was intending to pursue studies and a career overseas and the entry of a conviction might work adversely to those aspirations if Mr B chose to follow her. The Judge was not prepared to allow that factor to assume primacy considering that those issues were for appropriate authorities to determine on formal application in due course.

[11] Judge Gittos said that the offending was “a quite serious matter and it could indeed have justifiably been prosecuted as a charge of assault with a weapon, as it was originally laid”.

Submissions

[12] Mr Boylan, for Mr B , has said everything that could be said on behalf of the appellant.

[13] Mr Boylan has emphasised Mr B ’ prior good character, the fact that he has been prepared to undergo a CADS programme successfully in order to address

issues relating to alcohol. Mr B attempted to initiate a restorative justice conference but was rebuffed by the complainant. In addition, there are the travel restrictions to which I have already referred.

[14] Mr Boylan also submitted that Mr B had offered to pay reparation.

[15] Balanced against that are factors to which Ms Wilson, for the Crown, referred. There is the nature of the offending which, as Judge Gittos said, could not be condoned or encouraged. Further, there was an intent to throw the bottle, even though a drunken intent. Nevertheless, the plea of guilty evidences that Mr B acknowledged that he was not so drunk that he did not form a requisite intent.

Analysis

[16] In R v Hughes [2008] NZCA 546, the Court of Appeal reviewed recently the principles applicable to the application for a discharge without conviction. The Court held that the wording of s 107 of the Sentencing Act which creates guidelines for the exercise of the discretion, adopted tests previously enunciated in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR

205 (CA).

[17] In considering whether the threshold test has been met and in the exercise of the discretion under s 106, Judges are required to focus on the requirements of the Act rather than on cases under prior statutory provisions that have now been repealed. Accordingly, principles and purposes of sentencing come into play.

[18] In this particular case, there is a need to deter conduct of the type in which Mr B engaged. As I have said the Court should not encourage conduct involving the throwing of bottles at another. It was quite fortuitous that the bottle struck the complainant in the forehead and caused little harm to him. Equally, the bottle could have hit the complainant’s eye, splintered and caused significant injury.

[19] I do not think that the question of luck, whether good or bad, should influence unduly the final decision on discharge without conviction.

[20] Balanced against that are the factors to which Mr Boylan has referred. There is no doubt in my mind that Mr B has an impeccable prior record and has done everything possible since the events in issue to atone for his behaviour.

[21] However, on balance, I cannot say that the entry of a conviction would be out of all proportion to the gravity of the offence and that is the criterion I must apply under s 107.

[22] I have sympathy for the plight of Mr B ’ partner. However, in making application to travel it will be open to Mr B to provide to relevant authorities copies of the sentencing notes in the District Court or this judgment on appeal, to demonstrate that the incident was not the worst of its type, by any stretch of the imagination.

Result

_{[23] In those circumstances, the appeal is dismissed.}

P R Heath J