Vaipo v Police HC Auckland CRI-2011-404-141 [2011] NZHC 1827 (17 November 2011)

Last Updated: 13 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-141}

BETWEEN KATHLEEN VAIPO Applicant

AND NEW ZEALAND POLICE Respondent

CRI-2011-404-149

AND BETWEEN DENOGAREN SUBRAMONEY Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: (On the papers) Counsel: V Letele for Applicants

W Fotherby for Respondent

Judgment: 17 November 2011

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 17 November 2011 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Letele Law & Justice (Manukau) for Applicants

_{Meredith Connell (Auckland) for Respondents}

VAIPO & SUBRAMONEY V POLICE HC AK CRI-2011-404-141 17 November 2011

Introduction

[1] The applicants were separately convicted and sentenced in the District Court. Both applied for discharges without conviction,[1] which were refused. Ms Vaipo was sentenced to 80 hours’ community work for two counts of assault. Mr Subramoney was ordered to come up for sentence if called upon within 12 months for contravening a protection order. They appealed their sentences to this Court, seeking discharges without conviction. Gendall J, in separate decisions, refused both appeals.[2]

[2] The applicants now seek leave to appeal Gendall J’s decisions to the Court of

Appeal.

[3] In Gendall J’s absence overseas these applications fall to be determined by me as the Judge responsible for the Criminal Appeals List. The grounds for appeal in each case are identical so I will consider them together. Counsel have agreed that I can deal with the applications on the papers.

Law

[4] Section 144(2) of the Summary Proceedings Act 1957 governs the question of leave to appeal from a decision of this Court. The High Court may grant leave if it considers that the question of law ought to be submitted “by reason of its general or public importance or for any other reason”.

[5] The task of the Court in considering whether it may grant leave under s 144(2) is therefore restricted to a consideration of whether a question of law exists that is of sufficient significance that it ought to be submitted to the Court of Appeal for decision. In other words, s 144(2) does not confer a right of general appeal. The

_{leading case on this point is R v Slater,}[3] _{wherein the Court of Appeal commented:}[4]

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

Decision

[6] In both decisions on appeal, Gendall J properly and comprehensively set out and applied the modern approach to discharge without conviction. Ms Letele’s primary submission on this leave application is that the test formulated for assessing a claim for discharge without conviction should be that in Fisheries Inspector v

Turner,[5] rather than the test recently set down by the Court of Appeal in R v Hughes[6]

and Blythe v R.[7] Keane J rejected this same submission when Ms Letele, for the applicant, raised it in Fehoke v Ministry of Health, holding:[8]

[14] On the appeal, as I recall, Ms Fehoke’s counsel accepted that Hughes was definitive as to the test to be applied. She contended that Ms Fehoke satisfied that test and was entitled to be discharged without conviction. On this application for leave, however, Ms Fehoke seeks to say that Hughes does not articulate s 107 accurately, and that is it more accurately articulated in earlier cases like Fisheries Inspector v Turner.

[15] I do not myself accept that Hughes articulates the s 107 test inaccurately or that the way in which it expresses that test gives rise to any uncertainty, or that there needs to be recourse to earlier cases in order to understand what s 107 requires; and thus I do not, myself, accept that Ms Fehoke’s proposed question of law is of such general or public importance as to justify a grant of leave.

[7] I concur. Having reviewed counsels’ submissions and the relevant judgments, I am satisfied that the applicants’ requests for discharge without conviction were not rejected because the current test is “too stringent and too high of a threshold to meet” (as Ms Letele submits). Rather, their applications failed

_{because, on their respective facts, the direct and indirect consequences of a}

conviction would not be out of all proportion to the gravity of the offences committed.

[8] I was surprised that Ms Letele filed these leave applications relying on the exact same argument that she unsuccessfully pleaded before Keane J only a few weeks before. I was also surprised that Ms Letele did not refer Keane J’s judgment to me. It was the Crown which did that. I have given Ms Letele the opportunity to explain. She has done so by memorandum. I am satisfied that the omission was due to inexperience and misapprehension so I take the matter no further. It is, of course, a duty on counsel to put all relevant and significant law known to the lawyer before

the Court, whether it supports the client’s case or not.[9]

[9] The applicants’ other grounds for leave are that the High Court erred in refusing their appeals because:

(a) the implementation of the Family Violence Court makes discharges without conviction more likely in cases in this area; and

(b) the applicants’ sentences are contrary to s 19 of the New Zealand Bill of Rights Act 1990 (freedom from discrimination) and the International Covenant on Civil and Political Rights.

[10] I am satisfied that these grounds too are without merit. The Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.[10] On the facts of the applicants’ cases, both the Court at first instance and this Court considered that the s 107 threshold was not overcome. There was no discrimination. Simply put, the offences were too serious and the potential consequences nebulous. The Courts did not err in law when reaching that

_conclusion.

[11] I decline leave to appeal. I agree with Crown counsel’s submission that the applicants have not raised any good reason, of public importance or otherwise, why the Court of Appeal should hear these appeals. The law in this area is fresh, certain

_{and clear.}

Brewer J

---

[1] _{Sentencing Act 2002, ss 106 and 107.}
[2] Vaipo v Police HC Auckland CRI-2011-404-141, 29 July 2011; Subramoney v Police HC Auckland CRI-2011-404-149, 2 August 2011.
[3] _{R v Slater [1997] 1 NZLR 211 (CA).}

[4] Ibid, at 214–215.
[5] _{Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA).}
[6] _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.}
[7] _{Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.}
[8] Fehoke v Ministry of Health (No 2) HC Auckland CRI-2011-404-125, 5 October 2011.

[9] Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (SR2008/214), r 13.11.

[10] Sentencing Act 2002, s 107.