Johns v Police HC Auckland CRI-2011-404-90 [2011] NZHC 2014 (16 December 2011)

Last Updated: 11 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-90}

BETWEEN STEPHEN HENRY CYRIL JOHNS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 29 November 2011

Counsel: G Minchin for the Appellant

N Wilde for the Respondent

Judgment: 16 December 2011

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 16 December 2011 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

Counsel: G E Minchin, PO Box 121464, Henderson, Auckland

JOHNS V POLICE HC AK CRI-2011-404-90 16 December 2011

[1] On 16 February 2011 Mr Johns was convicted and discharged by Judge Tremewan on charges of intentional damage and resisting arrest. The charges related to an incident at his mother‟s house on 5 July 2010 to which police were called. Two further charges relating to that incident were dismissed.

[2] Mr Johns now appeals against his conviction on those charges as well as the Judge‟s decision to convict and discharge rather than discharge him without conviction. He also appeals against the District Court‟s refusal to grant a rehearing on the charges but it seems plain that this Court has no jurisdiction in that respect[1] and I do not consider that aspect of the appeal further.

Facts

[3] The charges arise from an incident involving Mr Johns, his mother and his sister and, subsequently two Police Officers who were called to the scene. Mr Johns had been periodically staying at his 80 year old mother‟s house but had left there the night before on the advice of the Police following an earlier family altercation.

[4] Mr Johns returned to the house at about 8.30 the following morning to get some clean clothes and to have a shower. The doors were locked and his mother offered to pass him out what he needed. But Mr Johns wanted a shower and so broke an already cracked window with a metal bar he had in his car and let himself in. His sister called 111. Judge Tremewan heard the recording of the call and noted that Mr Johns‟ sister clearly sounded frightened.

[5] The Police arrived while Mr Johns was in the shower. Their evidence confirmed that the two women were frightened and shaky. At the Police‟s request Mr Johns got out of the shower, got dressed and went outside with the two officers. The officers noticed he was carrying the metal bar and asked him to hand it over, but he did not do so, saying that he would put it in the truck. One of the officers moved to grab the bar and there was a scuffle resulting in Mr Johns‟ arrest. Mr Johns was slightly injured and has made a complaint to the Independent Police Complaints

_{Authority about that.}

[6] At the hearing, the police prosecutor elected not to call Mr Johns‟ mother, the alleged victim of the intimidation charge, as a witness. This led to the intimidation charge being dismissed. The learned District Court Judge expressly recorded in her judgment that the defence could have called Mrs Johns as a witness but chose not to do so.

[7] Judge Tremewan also reduced the resisting charges from two to one.

[8] Mr Johns‟ sister was called as a witness by the Police but she was declared hostile. It is evident that by the time of the hearing she did not wish the charges to proceed.

[9] Mr Johns‟ sister and mother were subsequently ejected from the hearing because of their interjections. The transcript and Judge Tremewan‟s judgment and sentencing notes also make it clear that her Honour found Mr Johns‟ conduct during the trial to be disruptive and, on occasion, vexing.

[10] As regards the two counts on which Mr Johns was convicted I set out Judge

Tremewan‟s analysis in full. As regards the wilful damage charge she said:

[23] Mr Johns claimed in his evidence that the window had a previous break in it prior to this day. This was not put to the appropriate police witness like a number of other issues raised by the defendant in his evidence, but in any event, it is clear that he still caused intentional damage to the window on this occasion. In that regard, s 11(1)(a) simply requires that he relevantly damaged property. The fact that he broke glass to get entry into the house frankly speaks for itself. The police photographs of the window and the photographs of the glass on the ground also speak for themselves. Mr Johns intended to act in the way he did and he caused damage to his mother‟s property.

[24] The defence has contended that the defendant genuinely believed he was legally and/or morally justified in acting in the way he did. I do not accept that. Rather, I believe he knew full well he was breaking his mother‟s glass window and that he was not entitled to be acting in the way he was, but elected to proceed anyway on the basis of a grandiose sense of self entitlement, to call the situation as he saw it. That is entirely consistent, I note in passing, with the behaviour he displayed in Court when he struggled to act reasonably at times and exercise proper self control, and adhere to the protocols obviously expected of him. Indeed, the Court considered that it

exercised considerable restraint in regard to Mr Johns in an endeavour to ensure he had every opportunity to put his case. The fact is, however, that an egocentric and misguided sense of self entitlement is not the same thing as lacking mens rea in relation to a charge of this kind, and I find that charge to have been proved.

[11] And on the resisting count she recorded:

[25] I now turn to the resisting charges. I accept from the evidence that both of the officers gave evidence of having asked the defendant to hand over the bar. Constable Farrell was closest to the defendant at that time and had been the one who had mainly been speaking with him. On the other hand, it is of interest to the Court that the defendant‟s evidence referred more to Constable Rapera demanding the bar from him.

[26] I am not troubled by these differences for two reasons. First, it seems to me that both officers became aware of the bar, were concerned about its presence and wanted the defendant to hand it over. Both were involved in a struggle that ensued afterwards. It is my assessment that they each made it clear to the defendant he was to hand over the bar and each of them was involved in extricating the bar from him. If the officers‟ evidence had matched perfectly in that regard, that may have seemed more strange. Rather, the differences in my view are such that I find they were honestly endeavouring to recall what took place in relation to a situation that had erupted suddenly and had been fraught, when their focus had been concerned with endeavouring to retrieve the bar.

[27] It is of interest that Mr Johns did accept that he was asked more than once to hand the bar over. He did not say in his evidence that he had intended to hand it over, rather only that he wanted to take it to his vehicle. Mr Johns also seemed to suggest that he had flinched to keep hold of the bar and the clothing when the officers effectively really tackled him. He denied any suggestion of deliberating holding onto the bar when the officers were trying to prise it off him. However, I accept that is exactly what did happen. The officers got the better of Mr Johns in endeavouring to prise the bar from him, and did secure the bar. Had he responded to what was in my assessment a reasonable request in the first place, the unfortunate incident that then ensued would not have occurred.

[28] I also record Constable Farrell‟s evidence that when he realised the situation had become one of dispute over the bar, he announced that the defendant was under arrest. However, the defendant‟s response did not change. The defendant in his own evidence disputed that this had occurred, but yet again it was a matter that the defence had not put in cross- examination by way of a challenge to the officer when he had given that evidence. However, I wish to add that in my view, none of this is determinative. The fact of the matter is the officers were acting in the course of their duty and were duty-bound and entitled to make the request and act in the way that they did.

[12] In sentencing Mr Johns,[2] Judge Tremewan observed that, while counsel had not made submissions about the effect of a conviction on him, he was 51 years‟ old and had a clean record and that consequently a conviction would have some effect. She also noted that the appellant had come off “second-best” in the altercation with the officers and that he had been physically injured. The Judge acknowledged this as something that could be taken into account.

[13] The Judge also recorded that she had, at least twice over the course of the day, discussed the possibility of Mr Johns undertaking counselling for his anger issues and the positive effect which that could have on disposition. She said that Mr Johns had, however, declined to engage with that suggestion, a matter which (her Honour said) was ultimately “his call”.

[14] She concluded that imposing any sentence had the potential to lead to more family conflict and so convicted and discharged Mr Johns on the two charges she found proved.

This appeal

[15] I have already explained why the appeal against the District Court‟s refusal to rehear the matter cannot be entertained. So Mr Johns‟ remaining grounds of appeal are essentially that:

(a) the Crown did not prove beyond reasonable doubt that in breaking the window Mr Johns was acting without claim of right;

(b) the conflicting evidence of the two police officers meant that the learned District Court Judge could not properly have found the

_{resisting charge proved beyond reasonable doubt;}

(c) the exclusion by the Judge of Mr Johns‟ mother and sister from the Courtroom meant that Mr Johns was denied an opportunity to question them; and

(d) Mr Johns should in any event have been discharged without conviction, particularly because of the effect of a conviction on his future employment prospects and possible overseas travel. Also relevant to that is the fact that neither his mother nor sister wished the Police to pursue the charges.

[16] Mr Johns also sought to adduce further evidence on the appeal in the form of affidavits from his mother and sister. The Crown opposed the application and I decline it. Any relevant evidence from either of those two women could have been given at trial. Mr Johns‟ counsel could have cross-examined Ms Johns further if required and, as the learned District Court Judge noted, could have called Mrs Johns. That in my view is sufficient to deal not only with the further evidence question but also the third ground of appeal above.

[17] In any event, the proposed new evidence adds nothing of significance to what is already known to the Court namely that whatever Mrs Johns and her daughter may have done or said on 5 July 2010 they subsequently did not wish the charges against Mr Johns to be pursued. I not only record but take full account of their position in my discussion of the merits of the appeal below.

[18] Because the Crown had not fully appreciated the scope of Mr Johns‟ appeal more time was allowed for Ms Wilde to file further submissions, particularly in relation to the discharge without conviction issue.

Discussion

Wilful damage

[19] Essentially Mr Johns contends that his beliefs that;

(a) he had some form of legal or equitable interest in Mrs Johns‟ property

(the family home); and

(b) the existence of such an interest would entitle him to break the window;

meant that a claim of right justification could not be excluded beyond reasonable doubt. He did not specify what form of interest that was, although there is reference in his evidence in the District Court to his intention to place a caveat on the property, which suggests that it was not limited to a license to occupy.

[20] The real difficulty with this submission as I see it is that while at various points in the transcript Mr Johns did assert that he had some form of interest in the property (and indeed referred to an intention to put a caveat on the title) he did not say what kind of interest this was and had not at the time the window was broken, taken any steps in that regard. Nor, more importantly, did Mr Johns ever say that what he perceived to be his legal interests gave rise to a belief that he was entitled to break the window of his mother‟s house.

[21] Although, as Judge Tremewan noted, Mr Johns did appear to have a real sense of entitlement that was more related to his perception of moral rights, not legal ones. And the law in that respect is clear that a sense of moral entitlement does not suffice for claim of right purposes. This ground of appeal must therefore fail.

Resisting

[22] As regards the resisting charge and notwithstanding Mr Minchin‟s valiant attempts on behalf of Mr Johns it seems to me that Judge Tremewan‟s decision cannot be faulted. She squarely addressed the argument now advanced about inconsistencies between the Police Officers‟ evidence and explained why it made no difference to her decision. This ground of appeal must also fail.

Discharge without conviction

[23] Section 11 of the Sentencing Act 2002 requires the Court to consider discharge without conviction before imposing a sentence and Judge Tremewan explicitly did so.

[24] The discretion to discharge without conviction is bestowed by s 106 of the Act, which deems such a discharge to be an acquittal. The s 106 discretion is guided (but not determined) by s 107, which provides a “gateway” through which any discharge without conviction must pass.[3] Only if the Court is satisfied that the disproportionality test in s 107 is met, may it then move on to consider s 106. Section 107 provides:

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.

[25] Until recently the leading authority on the operation of ss 106 and 107 has been the Court of Appeal‟s decision in R v Hughes.[4] I do not propose to rehearse the dicta from that decision in any detail as they are well understood. I do record and acknowledge, however, that the decision in Hughes has now been somewhat modified by the Court of Appeal‟s recent decision in Blythe v R.[5] Although in that decision the Court endorsed the three step process mandated in Hughes,[6] it did not agree that the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider

interests of the community (including the factors required to be taken into account under ss 7, 8, 9 and 10 of the Sentencing Act). In that respect the Court said:

[11] That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9

of the Sentencing Act, and those listed in s 9A ... are obviously relevant to

„the gravity of the offence‟. But the content of ss 7, 8 and 9 is not. ...

[12] As was pointed out in Hughes, the Court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test), and the matters dealt with in ss 10 and 10B must all be taken into account. That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes.

(footnotes omitted)

[26] Accordingly it appears that after Blythe, the only relevant matters at stage one of the s 107 inquiry (determining the gravity of the offending) are the facts of the offending itself (i.e. aggravating and mitigating factors relevant to the offending but not the offender) and the views of the victim.

[27] In Mr Johns‟ case I accept that the seriousness of the offending is at the lowest end of the spectrum. In assessing it in that way I particularly take into account the views of Mr Johns‟ mother and sister. Equally, though, I note that the two Police Officers (who I suppose can arguably be viewed as the “victims” of the resisting charge) are less sanguine in this respect.

[28] The real difficulty for Mr Johns, however, is that there is very little to go on in terms of the consequences of a conviction for him. The Courts have held on numerous occasions that inchoate future travel plans carry little weight in a s 107 context. The possible impact on Mr Johns‟ prospects of employment is perhaps more serious, although there is little in the way of concrete evidence before the Court about this. Moreover it seems to me it is a matter to which Judge Tremewan very fairly turned her mind.

[29] As the Courts have also often said the s 107 “out of all proportion” threshold is a high one. I do not consider it has been crossed here. And even if it had, it seems to me that this may well have been one of those rare cases where an exercise of the residual s 106 discretion might not have favoured Mr Johns. It seems to me that his

steadfast refusal to entertain the possibility of counselling, notwithstanding receiving a clear steer from the Court in that respect, would be a matter that could properly be taken into account under s 106. Plainly, Mr Johns‟ failure to take responsibility for his actions (which comes out very clearly in the transcript) or to take steps to reduce the likelihood of future reoccurrence (which, given his plainly volatile temperament and equally volatile family situation, seems moderately high) weighed heavily with Judge Tremewan; and rightly so.

_{[30] For the reasons given above Mr Johns‟ appeals must be dismissed.}

Rebecca Ellis J

---

[1] Tuohy v Police [1959] NZLR 865.

[2] Police v Johns DC Waitakere CRI-2010-090-005830, 16 February 2011 (Sentencing notes).

[3] _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [10].}

[4] _Supra.

[5] _{Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.}

[6] _{Blythe at [8] – [9]. That three stage process is (1) identify the gravity of the offending with reference to the}

particular facts of the case (2) identify the direct and indirect consequences of a conviction and (3) determine whether those consequences of conviction would be out of all proportion to the gravity of the offending.