Milton v Police [2013] NZHC 2537 (26 September 2013)

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BETWEEN	LEVI JACK MILTON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 September 2013
Appearances:	L Garthwaite for Appellant R P Bates for Respondent
Judgment:	26 September 2013

[1] The appellant, Levi Jack Milton appeals against the decision of the District Court delivered on 28 June 2013 whereby the Court declined to grant the appellant a discharge without conviction.

[2] The appellant had pleaded guilty to one charge of discharging a firearm with reckless disregard for the safety of others pursuant to s 53(3) of the Arms Act 1983 (maximum penalty three years imprisonment). The appellant was convicted and fined $500.

(a) At about 5.00 pm on Monday, 9 April 2013 the appellant was travelling in a motor vehicle towards Berwick near Mosgiel in a

(c) The appellant got out of the vehicle, opened the boot of the vehicle and took out a double-barrelled shotgun and placed a single cartridge in it.

(d) The appellant aimed the shotgun at the Duke Road South signpost and fired, it hitting the signpost and putting a hole in it.

(g) The appellant is a young man. He was 17 years old at the time, just out of the Youth Court jurisdiction. He had not previously appeared before the Court.

[4] The Court records indicate that on 28 May 2013 a guilty plea was entered but the appellant, through counsel, indicated that he intended to make an application for discharge without conviction. The Court set a timetable for filing submissions in that regard.

[5] On 28 June 2013 the District Court had before it a lengthy affidavit from the appellant together with submissions on behalf of the appellant setting out the applicable law in relation to a discharge without conviction pursuant to ss 106 and

[6] The appellant’s application for diversion was not considered appropriate. The police did not oppose the application for a discharge without conviction it seems at the time of the sentencing hearing. By the time of that hearing however, the appellant’s firearm licence had been revoked.

$207 for the cost of replacing the damaged sign at the time. As I have noted above at sentencing the appellant asked the District Court Judge to discharge him without conviction. The power to grant a discharge without conviction is conferred by s 106 of the Sentencing Act 2002. Before a Court may exercise its discretion under s 106, s 107 requires the Court to first be satisfied that the consequences of conviction would be out of all proportion to the gravity of the offence.

[9] In dismissing that application for a discharge without conviction the District Court Judge identified the mandatory considerations to be undertaken before the discretion contained in s 106 can be exercised as the following:

[10] In the District Court His Honour Judge Flatley held the gravity of the offending in this situation and the level of culpability of the appellant to be “relatively high”. This was on the basis that:

(b) The possibility that a rogue shot fired by the appellant may have hit someone had far-reaching consequences.

	(a)	The main consequence advanced on behalf of the appellant was the
		impact of a conviction on his application for entry into the New Zealand Defence Force; and
	(b)	The general consequences in relation to his potential overseas travel.
[12]	The	Judge then concluded that the consequences of a conviction would not

outweigh the gravity of the offending as he was unable to say for sure that the appellant would not be accepted into the Navy, the defence force of his choice, and that this would have been a foreseeable consequence to the appellant of his behaviour. His Honour held that it was appropriate for the information regarding the conviction to be considered by the Navy in their recruitment, rather than the Court acting in a way that would effectively hide that relevant information.

[13] The grounds for appeal here are that the District Court Judge erred in exercising his discretion in respect of ss 106 and 107 of the Sentencing Act 2002.

[14] In particular, it is claimed the sentencing Judge erred in his application of the disproportionality test under s 107 in that he overstated the gravity of the offending and understated the direct and indirect consequences of the conviction for the appellant.

[15] As French J discussed in Booth v Police1 following the Court of Appeal decision in R v Hughes the issue of whether a Court is satisfied that the s 107 threshold has been met is a matter requiring judicial assessment which can be subject

[16] Consequently this appellate Court is required to reach its own independent assessment here rather than treating the matter as an appeal against the exercise of a discretion.

(a) because the District Court Judge appears not to have appreciated the difference between the firing of a shotgun and a rifle in the circumstances prevailing here, that the gravity of the offending was overstated; and

(b) because of advice from the Defence Force that the appellant’s application to join the Navy has been deferred for a year as the applicant does not meet the “minimum security standard necessary to enlist with the New Zealand Defence Force as a result of the New Zealand Police records and traffic history checks” the District Court underestimated the consequences of the conviction.

[18] In the District Court His Honour Judge Flatley determined the gravity of the

[19] That assessment was based as I see it on a possible misunderstanding by the Judge of the weapon used by the appellant and the potential consequences that could flow from the use of a shotgun. The appellant has filed an affidavit sworn 16 August

2013 in which he deposes that the shotgun used by him in this case is distinct in nature and purpose from a rifle.

[20] As a result the appellant contends the potential consequences foreseen by the District Court Judge when assessing the gravity of the offending might well have been regarded as more serious, given the type of weapon used by the appellant.

[21] This misunderstanding, it is said, might well have led to the potential consequences of the offending being somewhat overstated by the sentencing Judge.

[22] On this aspect, before me Mr Bates, for the respondent, accepted that the risk of injury from the use of a shotgun as compared to the use of a rifle may be less in certain circumstances given the distance that shotgun pellets can travel compared to bullets from a rifle. He went on to submit, however, that there were still risks involved in the use of a firearm in inappropriate situations, particularly where people might be in close vicinity. The present incident however, as I have noted, occurred in a semi rural setting which as I understand it was some 400 metres distant from the nearest house or building.

Fresh evidence as to direct and indirect consequences of conviction for the appellant

[23] Subsequent to the appellant’s conviction and as a direct result of that conviction his application for admission to the New Zealand Defence Force has been deferred for one year. Confirmation of this is attached to the appellant’s affidavit of

[24] The appellant says now he is unsure whether his application to join the Navy will be successful when he re-applies. However, he maintains the deferral in itself has had consequences for him in terms of his personal situation for the next

12 month period. In addition, the conviction it is said has had the consequence of limiting the appellant’s employment opportunities.

[25] It is suggested that, had His Honour Judge Flatley had the benefit of this further information regarding the actual impact of the conviction upon the appellant’s personal circumstances, then his conclusion in terms of the culpability of the appellant and the effects of a conviction upon him may well have been different.

Other direct and indirect consequences of a conviction in proportion to the gravity of the offence.

[26] On this the appellant contends that he has already suffered the following consequences:

(a) His application for employment with the New Zealand Defence Force, as noted above, has been deferred for one year;

[27] Here, the District Court Judge clearly applied the three part test in s 106 but, as I see it, the appellant is correct in arguing in this case that the Judge overstated the gravity of the offending and understated the consequences of a conviction.

[28] As to the gravity of the offending, in my view the learned District Court Judge erred in finding that this was “relatively high”. He stated at paragraph [11] that:

[29] At [13] the learned District Court Judge commented again that people have been killed in this sort of situation before and the Judge referred to the incident in the North Island where a woman was shot at a campsite.

[30] The appellant makes the point that the campsite death involved a rifle and not a shotgun. He has provided an excerpt from the Firearms Code which states that shotgun pellets are less likely to endanger someone. As I see the position, when this evidence is considered alongside the appellant’s youth, his lack of previous convictions, and his good character, there is a reasonable argument in my view that the gravity of the offending here is not as high as Judge Flatley determined.

Honour Judge Flatley at the time, I think he was entitled to find it was not a given

that the appellant would fail to get into the Navy if he was convicted. The fresh evidence however which has been provided by the appellant here, which the learned District Court Judge did not have before him, however, shows that the appellant’s application to join the Navy has been deferred for a year as a direct result of his conviction.

[32] Turning now to consider whether the consequences of conviction would be out of proportion to the gravity of the offence, I agree with the submissions advanced to me by counsel for the appellant that the consequences were disproportionate.

[33] It does appear that Judge Flatley in the District Court was concerned that a discharge without conviction would mean that the appellant’s behaviour might be hidden from the Navy which in terms of its recruitment policy seeks mature and responsible recruits for roles that may involve firearms. This was a justified concern.

[34] But, as matters currently stand, the Candidate Co-ordinator at Defence Careers is now aware of the appellant’s conviction, as is also the Directorate of Defence Security. If the appellant succeeds on this appeal it is not clear whether the record of his previous application and police check would be considered by the Navy when progressing his recruitment, but I would assume that this would be the case.

[35] The offending here was ill-advised and represented a rather stupid act on the part of the appellant. Nevertheless, in my view it was a one-off event and what might be described as a rather stupid prank. If the offending in my view had been more serious the learned District Court Judge’s opinion that the Navy should have the opportunity to assess the appellant’s behaviour might, as I see it, have been a good reason not to exercise the discretion to discharge him, notwithstanding that the s 107 test was met. But, because in my view the gravity of the offending here is in real terms less serious than may have appeared to His Honour Judge Flatley, his concerns about the Navy’s level of knowledge about the appellant are possibly insufficient to justify a refusal to exercise the discretion to discharge. And in any event what is clear now is that the Navy is already well aware of the appellant’s offending.

[36] Finally, I am mindful of the relative youth of the appellant, the fact that he is just out of the Youth Court jurisdiction, has no previous convictions and is a young man clearly of good character with a genuine concern for his future planned career.

[38] The appeal is now allowed and the appellant is discharged without conviction with respect to the offence charged.

[39] An order is now made quashing the conviction and the fine of $500 imposed on the appellant in the District Court.

High Court of New Zealand Decisions

Milton v Police [2013] NZHC 2537 (26 September 2013)