Hickey v Police [2013] NZHC 591 (26 March 2013)

Last Updated: 5 April 2013

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-15 [2013] NZHC 591

BETWEEN ANDREW JAMES HICKEY Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 26 March 2013

Counsel: R Bowden for Appellant

C A Anderson for Respondent

Judgment: 26 March 2013

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 146, Whangarei

Counsel:

_{R Bowden, PO Box 1862, Whangarei}

HICKEY V NEW ZEALAND POLICE HC WHA CRI 2013-488-15 [26 March 2013]

Introduction

[1] Mr Hickey pleaded guilty to two charges arising out of an incident that occurred in the early hours of 2 September 2012. One involved being found without reasonable excuse in a building. The other was possession of an offensive weapon in circumstances that prima facie showed an intention to use it to commit an offence involving the fear of violence.

[2] Mr Hickey was sentenced in the District Court at Whangarei on 1 February

2013. Judge de Ridder declined to discharge Mr Hickey without conviction. Instead he sentenced him to a period of supervision for nine months, on condition that Mr Hickey attend counselling as directed by a probation officer.

[3] Mr Hickey appeals against the sentence imposed. In doing so, Mr Bowden, on his behalf, submits that the Judge erred in failing to grant a discharge without conviction. Necessarily, if the appeal were successful, the convictions too would be set aside.

Application to adduce further evidence

[4] At the outset of the hearing, Mr Bowden applied to adduce further evidence on appeal. The evidence consists of an affidavit sworn by Mr Hickey that confirms he has lost his employment as a result of the conviction that was entered. That position is evidenced by a letter dated 8 February 2013 from his former employer.

[5] Mr Hickey is an electrician by trade. The evidence is fresh. Having arisen from an event that occurred after sentence, it is also relevant to an issue that I need to determine. In those circumstances, the application for leave to adduce further evidence is granted.

The facts in outline

[6] Mr Hickey filed an affidavit in support of his application for a discharge. He was not cross-examined on that affidavit before the District Court Judge. Mr Hickey gave evidence of the background to the events that gave rise to the convictions. They arose out of the ending of a relationship with the female complainant, in which Mr Hickey had been for some four years or so.

[7] As at 1 September 2012, Mr Hickey and the complainant had separated. Nevertheless, they were still seeing each other socially. Mr Hickey describes what happened in the early hours of 2 September 2012 as follows:

9. I spent the night with the complainant on the Thursday before this incident. We had been seeing each other regularly.

10. Put simply, on 1 September 2012, a friend told me that the complainant had spent the night with someone else the weekend before, and that she would be spending the night with a particular person on that night. I was devastated.

11. I just wanted to see things for myself.

12. I came in. We had an argument. I was not shouting or screaming. I kept control and said my piece and left. I did say the words complained of. There was never ever any intention to be involved in any violence.

13. I sent the text message complained of as well.

[8] It is common ground that Mr Hickey took a wheel-brace into the house with him. There is no explanation in the affidavit of how that came to be. I heard briefly from Mr Bowden on that topic today. However, I indicated that I would not take it into account given its absence from the first affidavit. In saying that I can indicate that, if the explanation were in evidence, I would likely regard it as aggravating the offending rather than diminishing any responsibility for it. For present purposes, the point is that an explanation should have been given frankly in the first affidavit.

[9] In his affidavit, Mr Hickey referred to the possibility that he may lose his employment. He was hopeful, however, that that would not be the case. He also gave evidence of completing a course of counselling with a respected Whangarei counsellor.

[10] It is clear that he has responded well to the counselling. It is also significant that the victim has provided (what I would describe as) a sympathetic victim impact statement in which she emphasised that she did not regard Mr Hickey as a future threat, provided he received help in addressing problems that he faced.

Sentencing in the District Court

[11] Judge de Ridder declined to grant a discharge without conviction for two main reasons. First, he regarded the offending as too serious. Second, he considered the evidence of possible job loss was speculative.

[12] Judge de Ridder concluded his sentencing remarks by saying:

[11] More importantly, the affidavit you have filed is speculative in the least. It talks about possibilities rather than fixed consequences. There is no supporting information that you have attempted to work in one of these areas and have been precluded because of your already existing conviction, or will be precluded if you are further convicted.

[12] The submissions about travel, again are speculative. It is not the case that just because you have a conviction for these matters you will be prevented from travelling. Again, as I have said you already have a conviction in any event which will be required to be disclosed. I suspect very much that will not, however, hinder you in any travel plans you have.

[13] Similarly, with the sentence I propose to impose, I do not think you will have any problems either, but in my view, particularly in regard to the possession of an offensive weapon, that is a serious charge, and in my view, any consequences for you of a conviction on that charge are likely not to outweigh the seriousness of the charge.

[14] On that basis, however, given that you do not have any previous convictions for offending of this type and also given that you have taken active steps to attend counselling to deal with the issues, I am of the view you are entitled to have a lesser sentence imposed than otherwise would have been, which would have been at least community work, if not more.

[15] On that basis you are convicted and sentenced to supervision for nine months on the condition you attend any such other further counselling as directed by your probation officer.

Analysis

[13] Ordinarily, any appeal against refusal to impose a sentence of discharge of discharge without conviction would be undertaken by way of a review of the District

Court Judge’s evaluative assessment. In this case, however, I review on the basis that the Judge had incomplete information, in that he did not know that Mr Hickey would lose his job.

[14] The power to discharge a person without conviction is contained in ss 106 and 107 of the Sentencing Act 2002. Relevantly, they state:

106 Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property; or

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c) make any order that the court is required to make on conviction.

....

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.

[15] The approach to be taken by sentencing Judges was settled by the Court of

Appeal in R v Hughes.[1] Delivering the judgment of the Court, Potter J said:

[8] Although the heading to s 107 refers to “Guidance for discharge without

_{conviction”, it is clear from the words of the section that the requirement in s}

107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a precondition to exercise of the discretion under s 106.

[9] In R v Rajamani [2008] 1 NZLR 723, the Supreme Court considered a discretion under s 374(4A) of the Crimes Act 1961 for a trial judge to proceed with a trial with ten jurors without the agreement of the prosecutor and the accused, which could be exercised if the Court considered the trial should proceed with fewer than 11 jurors “because of exceptional circumstances”. The Supreme Court said (at para [4]) the determination of whether there were exceptional circumstances was not a matter of discretion: it was “a matter of fact requiring judicial assessment”. The discretion to proceed with ten jurors existed only if there were exceptional circumstances.

[10] If that analysis is applied to the provisions in issue in the present case, the court must first consider whether the disproportionality test in s 107 has been met. If, and only if, the court is satisfied the s 107 threshold has been met may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.

[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles (Rajamani at para [5]). The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s

107 threshold has been met.

[12] We are of course bound by Rajamani, but in the present context the factors that inform the judicial assessment under s 107 are likely to be, or at least to be included in, the factors that inform the exercise of the court’s discretion under s 106. So, in practice, a favourable exercise of the s 106 discretion is likely to follow from a decision that the s 107 test is met and the factors informing both stages will overlap to a large degree.

(emphasis added)

[16] The first step is to determine whether the threshold requirements of s 107 of the Act have been met. As the Court of Appeal has made clear, the disproportionality test in s 107 acts as a gateway or pre-condition to the exercise of the discretion to discharge conferred by s 106. Only if the Court were satisfied that the “direct and indirect consequence of a conviction would be out of all proportion to the gravity of the offence” can consideration be given to a discharge. Nevertheless, the Court of Appeal acknowledged that in many cases the factors to be taken into account will be identical on both limbs of the inquiry.

[17] I agree with the District Court Judge that the offending was serious. There are three aspects, in particular, on which I rely:

(a) The first is that Mr Hickey entered a domestic dwellinghouse without invitation. That amounted, in colloquial terms, to a home invasion. Occupants of houses should be able to feel safe from intrusions of that type.

(b) The second is that, on his own evidence, Mr Hickey made a deliberate decision to go to the house and to confront those present.

(c) Third, Mr Hickey made a deliberate decision to take the wheel-brace into the house.

[18] In those circumstances, I agree with the District Court Judge’s assessment that the s 107 threshold has not been met. Even though there is now evidence of actual job loss, the fact that employment may be lost if behaviour of this type occurs, will often be a consequence.

[19] I have also taken into account the sympathetic approach articulated by the victim. Nevertheless, despite the empathy for Mr Hickey’s position evoked by her statement, a discharge without conviction cannot be seen as an appropriate community response to offending of this type.

Result

[20] For those reasons, the appeal is dismissed.

Post-script

[21] I do, however, add a postscript.

[22] It is clear from the evidence before me that this behaviour was out of character. It was triggered by events that left Mr Hickey in an emotional state. The

fact that he responded as he did and undertook actions which cannot be countenanced by the law, is mitigated by his subsequent attempts to obtain counselling for anger management concerns and the success that the counselling appears to have had.

[23] It is likely that a responsible employer would look more carefully at the circumstances in which offending occurred and any factors mitigating its nature to determine whether conduct has occurred that justifies dismissal. The mere fact that a conviction has been entered simply demonstrates that the Court does not regard certain consequences as being out of proportion to the gravity of the offending.

[24] On any view, the sentence imposed by Judge de Ridder was lenient and reflects the nature of the circumstances that gave rise to it and the attempts at rehabilitation undertaken by Mr Hickey. The availability of these reasons for dismissing the appeal may be helpful to a future employer considering whether to

_{employ Mr Hickey, in a trade at which it appears he excels.}

P R Heath J

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[1] R v Hughes [2009] 3 NZLR 222 (CA).