Clements v Police [2014] NZHC 989 (13 May 2014)

Last Updated: 22 May 2014

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2013-488-000059 [2014] NZHC 989

BETWEEN	RODNEY JOHN CLEMENTS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 May 2014
Appearances:	Appellant in Person M A Jarman-Taylor for the Respondent
Judgment:	13 May 2014

_{[RESERVED] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 13 May 2014 at 5.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

CLEMENTS v POLICE [2014] NZHC 989 [13 May 2014]

Introduction

[1] Mr Clements appeals a conviction entered against him by Judge E P Paul in the District Court at Whangarei on 4 December 2013.

[2] Following a defended hearing, Judge Paul found that Mr Clements had intentionally damaged a garage roller door, the property of a Ms Robyn Coutts and another person. Mr Clements was convicted, ordered to come up for sentence if called upon within nine months, and ordered to pay reparation of $915, at the rate of

$10 a week.

[3] Mr Clements has filed a notice of general appeal. The appeal appears to be an appeal against conviction. The grounds stated in the notice of appeal are as follows:

On a clean record I got unnecessarily convicted as a result of noise by neighbour and there was no alternative to action done at time. Ignored by courts was provocation and on reasonable grounds as case notes. Conviction based on intent to damage (was no intent to damage, only to attract attention).

The notice of appeal goes on to state that the appeal relates to the admissibility of evidence given at the hearing, a challenge to a factual finding, and the exercise of a discretion.

Factual Background

[4] At the relevant time – May 2013 – Mr Clements lived in a flat in a property in Armstrong Avenue, Whangarei. There was a garage on an adjoining property, which was in close proximity to Mr Clements’ flat.

[5] The adjoining property was owned by Ms Coutts and another person. It was let out to tenants.

[6] Mr Clements is a care worker. He had been working during the night of 3–

4 May 2013. On the morning of 4 May 2013, he came home and tried to get some sleep. Loud music started coming from the garage at approximately 2.00 pm. According to Mr Clements, loud music had previously come from the garage on a

number of earlier occasions, and he had endeavoured to raise his concerns with the relevant authorities.

[7] On the afternoon of 4 May 2013, Mr Clements said that he simply “couldn’t stand it any further”. At about 4.55 pm, he went outside, and picked up a steering wheel lock. It was a relatively heavy item. He then leant over the relatively low boundary fence between the two properties, and began banging the steering wheel lock against the garage roller door. Mr Clements said that he was trying to attract the attention of the garage’s occupants, and get somebody to turn off the stereo. He said that after an initial bang or bangs on the door, he kept on banging the door, “probably for six or seven more times”.

[8] Mr Clements was then approached by a Mr Wakelin, who was visiting the property with his children. There was a brief argument between Mr Clements and Mr Wakelin. The argument came to an end when Mr Clements fell over. Mr Clements says that Mr Wakelin pushed him. Mr Wakelin denied this. He said that Mr Clements threatened him with the steering wheel lock and that he tried to take it off him to avoid any attack.

[9] When the police arrived, they spoke to Mr Clements. He told them that his neighbours would not stop playing loud music in the garage, and that because nobody else would do anything, he had had to deal with it himself. He accepted that he had walked across his drive, and banged on the garage door with the steering wheel lock.

[10] Mr Clements’ actions resulted in damage to the garage door. One of the owners of the property, Ms Coutts, gave evidence before Judge Paul that there was nothing wrong with the garage door prior to the incident. She had had a look at the garage door after she was informed of the incident. She said that the garage door would have to be replaced, and that it could not be repaired. The replacement cost was $915. Ms Coutts did, however, confirm that the garage door still went up and down at the time of the hearing, and that the tenants could use it if they wished to do so.

[11] Diversion was initially considered. According to the court file, following an intimated guilty plea, Mr Clements was directed to pay $915 reparation, and perform

20 hours’ service to the community at the Maunu Cemetery. Mr Clements was, however, unable to comply with this direction. He still had cracked ribs from the fall and he provided a medical certificate saying that he could not mow lawns at the cemetery.

[12] On 16 September 2013, Judge de Ridder directed Mr Clements to complete the diversion by the time of the next call (7 October 2013) and advised him that if he did not do so, a conviction would be entered.

[13] When the matter was called on 7 October 2013, counsel who had been retained up until that point sought and obtained leave to withdraw, and Mr Clements, appearing on his own behalf, entered a plea of not guilty. The matter proceeded to a defended hearing. That hearing took place in front of Judge Paul on 4 December

2013.

Judge Paul’s Decision

[14] Judge Paul referred to the charge faced by Mr Clements – namely intentional damage under s 11(1)(a) of the Summary Offences Act 1981. He then referred to the evidence called by the police. He noted that counsel then appearing for Mr Clements had cross-examined Mr Wakelin about the circumstances of the altercation between Mr Clements and Mr Wakelin, but observed that it mattered little, because Mr Clements had not been charged with assault. Rather, he had been charged with intentionally damaging the garage door.

[15] Mr Clements accepted that the garage roller door had been damaged. That was clear from photographs which were produced in evidence. The Judge considered that he needed to determine on the evidence whether that damage was done intentionally, or recklessly.

[16] The Judge noted Mr Clements’ evidence that he was not aware that he was causing the damage at the time, and that he was striking at the door from his side of the fence, and not the garage side. The Judge considered that it was unlikely in the

extreme that Mr Clements could not have been aware of the damage. He noted that photographs produced in evidence showed that there was a degree of accuracy in the blows to the door. They were all in a relatively small area. He rejected Mr Clements’ assertion that he did not know where he was striking the door, given the confined area of damage. The Judge accepted that Mr Clements was frustrated, and that there was a background to the events which took place. He considered that Mr Clements’ neighbours were inconsiderate. He noted that Mr Clements, on his own evidence, had reached desperation point on the day in question, and that he had taken matters into his own hands. He noted the evidence that Mr Clements banged on the door with the steering wheel lock, and that when he got no response, he continued to strike the door. The Judge considered that Mr Clements must have placed some force behind the blows to inflict the damage to the door. He noted as follows:

Perhaps after one or two hits, one could forgive him if damage was done, but after several [...] hits of that door, if he did not intend to damage it he certainly knew full well that using a heavy wheel lock on a garage door was likely to cause damage and was clearly reckless...

The Judge rejected Mr Clements’ assertions that he was not aware that he could have

been damaging the door, given his actions.

[17] Judge Paul concluded that Mr Clements had, as a minimum, acted recklessly, and that he had done so without lawful justification or excuse. While the Judge had sympathy for Mr Clements’ position, he was satisfied that he had taken the law into his own hands. He found the charge proved to the requisite standard, entered a conviction against him and made the various orders I have referred to above.

The Appeal

[18] The information is dated 24 May 2013. It was laid in accordance with the Summary Proceedings Act 1957, and pursuant to s 397 of the Criminal Procedure Act 2011, the matter has to be dealt with under the law that was in force at the time the information was laid.

[19] Section 115 of the Act conferred a right of appeal in respect of any conviction, and recorded that an appeal could be against the sentence passed and the conviction or against the conviction only or against the sentence only.

[20] Pursuant to s 121(1), this court was required to hear and determine every general appeal, and make such order in relation to it as it thought fit. Without limiting the generality of the power conferred by subs (1), the court could exercise any of the powers referred to in other provisions in the section. Section 121(2) dealt with appeals against conviction, and s 121(3) dealt with appeals against sentence.

[21] It was trite law that, under the Act, where there was an appeal against conviction, the appellant had the onus of satisfying this court that it should differ from the original decision. The court was required to come to its own view on the merits.¹ This court had to be conscious that it was the lower court which saw and heard the witnesses, and that it could well have an advantage over this court, in assessing their credibility.² Where there was an appeal against sentence, this court would not intervene where the sentence was within the range that could properly be justified by accepted sentencing principles. This court would not embark on the sentencing exercise afresh, nor substitute its opinion for that of the sentencing Judge, unless there was an error in principle.

Submissions

[22] Mr Clements appeared on his own behalf. He accepted that he had caused the damage to the roller door, and he offered his apologies for that damage. However, he reiterated his assertion before Judge Paul that he had not intentionally caused the damage. He said that he wanted to attract the attention of the persons in the garage playing the stereo, and that it took a long time for them to respond and turn the stereo down. He posed the following question to me:

When a person defends his right to have a reasonable state of quiet on his patch and the authorities don’t seem to be able to offer any useful support, to keep ... intensely noisy 17 year olds from turning up loud stereos and such like – what is one to do?

¹ _{Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).}

² R v Munro [2008] 2 NZLR 87 (CA) at [76]–[84].

He expressed concern that the 17 year old, and Mr Wakelin, who he asserted had assaulted him, had got off “scot free”, whereas he had had a conviction entered against him. He emphasised that the entire episode had caused him considerable stress, injury and expense. He was adamant that counsel who appeared on his behalf had sought a discharge without conviction, albeit not in writing. He argued that the consequence of a conviction was disproportionate. He stressed that he has never been convicted of an offence before and that he does not want a conviction entered against him now.

[23] Ms Jarman-Taylor, for the police, referred to s 11(2) of the Summary Offences Act. She noted that the Judge had found that Mr Clements must, at the least, have been reckless as to whether or not his actions were damaging the roller door. She noted that Judge Paul had expressly addressed the issue in his judgment, that he had clearly explained his findings, and that they were findings which were open to him on the materials which were before the court. She submitted that the elements of the charge were proved, and that there had been no miscarriage of justice. In relation to sentence, she put it to me that the appeal in its terms is not an appeal against sentence, and further, that there is nothing on the court file to suggest that there was any request for a discharge without conviction. Further, she asserted that there was no evidence before Judge Paul on which he could have been properly satisfied that a discharge without conviction was appropriate. She submitted that the appeal should be declined, and that both the conviction and sentence should stand.

Analysis

[24] Relevantly, s 11 on the Summary Offences Act provides as follows:

11 Wilful damage

(1) Every person is liable to imprisonment for a term not exceeding

3 months or a fine not exceeding $2,000 who intentionally—

(a) damages any property; or

(b) sets on fire any tree or other vegetation.

(2) For the purposes of subsection (1), a person does an act intentionally if he does it intentionally or recklessly, and without lawful justification or excuse or claim of right.

...

[25] There are three elements to the offence: (a) that property was damaged;

(b) that the act causing the damage was done either intentionally or recklessly; and

(c) that the act causing the damage was done without lawful justification or excuse or claim of right.

[26] There was no dispute before Judge Paul that the garage roller door was damaged. The damage was clear from photographs which were produced in the course of the hearing. The photographs showed an area of damage on the side of the garage door, closest to the boundary fence, and perhaps half-way up the height of the garage door. There appeared to be two lines of damage, one above a rib on the garage door, and the other below the rib. Both areas of damage covered an area of perhaps 30 centimetres in length, and 20 centimetres in height. Although there is nothing on the transcript of evidence in this regard, at the hearing of the appeal, Mr Clements told me that the marks above the rib were already there, and that they were caused by him on an earlier occasion when he tried to get the occupier of the garage to turn down his stereo. The marks below the rib were the more significant of the two sets of marks. It appeared from the photographs that the skin of the roller door may have been perforated in more than one place. The dents, marks and perforations, were within a relatively confined area.

[27] It was also clear from the transcript of evidence that Mr Clements hit the garage door with a heavy steering wheel lock on quite a few occasions and that he inflicted the damage. This was not denied by Mr Clements before me.

[28] Mr Clements gave evidence at trial, and repeated at the appeal hearing, that he did not intend to damage the garage door. It may well be that he did not set out to damage the door. It is, however, clear from s 11(2) that recklessness will suffice. A person hitting a garage roller door with a relatively heavy object, such as a steering

wheel lock, must appreciate that his or her actions would be likely to cause damage. If a person is reckless whether or not his or her actions cause damage, then pursuant to s 11(2), that person has intentionally damaged the door.

[29] Having considered the evidence, and the photographs, I conclude that Judge Paul was correct when he found that Mr Clements was, at the least, reckless as to whether or not he was causing damage to the garage roller door.

[30] I also consider that Judge Paul was correct when he found that Mr Clements had been provoked by his neighbours’ actions, and that his neighbours were inconsiderate. However, provocation is not a defence to a charge such as this, although it may be relevant in mitigation when sentence is being considered. There was no lawful justification, or excuse or claim of right. Mr Clements simply took matters into his own hands.

[31] In my judgment, the elements of the offence set out in s 11(1) were made out. The appeal in relation to conviction is dismissed.

[32] I now turn to the question of sentence.

[33] As I have noted, the notice of appeal filed does not expressly challenge the sentence imposed by Judge Paul. However, s 120 of the Summary Proceedings Act provided that, on the hearing of any general appeal, no objection to any defect in the notice of appeal was to be allowed, unless the court was of the opinion that the respondent had been substantially prejudiced thereby. Further, the court could direct or allow the notice of appeal to be amended on such terms as to costs or otherwise, as it thought fit.

[34] Ms Jarman-Taylor did not suggest that there was any prejudice to the police, if I were to treat the appeal as also being an appeal against sentence, and in my view, it is appropriate to do so.

[35] As noted by Ms Jarman-Taylor, there is nothing on the court file to indicate that a request for a discharge without conviction under s 106 of the Sentencing Act

2002 was made. Mr Clements asserted that his counsel did raise the issue orally before Judge Paul. Even if I assume that this happened, there are difficulties in Mr Clements’ position.

[36] Relevantly, s 106 of the Sentencing Act 2002 provides as follows:

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.

...

[37] Section 107 in turn provides as follows:

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.

[38] As can be seen, the latter section requires consideration of three factors: (a) the gravity of the offence;

(b) the direct and indirect consequences of a conviction; and

(c) whether those consequences are out of all proportion to the gravity of the offence.

[39] Only if the court is satisfied that the s 107 threshold is met, does it then have a discretion to discharge under s 106.

[40] The words “is satisfied” in s 107 mean that the court is required to make up its mind on reasonable grounds. It does not require proof beyond reasonable doubt. Further, the court does not need to be satisfied that “the identified directions and

consequences would inevitably or probably occur”. It is sufficient if the court is

satisfied that there is “real and appreciable risk that such consequences will occur”.³

[41] There is nothing in the transcript of evidence on which Judge Paul could be satisfied that a discharge without conviction was appropriate. Mr Clements asserted before me that his employment might be at risk if he has a conviction. The only reference to Mr Clements’ employment before Judge Paul was Mr Clements’ assertion that he had a very hectic schedule day as a part-time care worker. There was no evidence of what the consequences of a conviction would be for Mr Clements.

[42] An appeal against a refusal of a discharge without conviction is by way of rehearing with the appellate court making a judicial assessment in accordance with its own opinion. As the Court of Appeal noted in R v Hughes:⁴

[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... 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.

[43] Mr Clements told me in the course of giving his submissions that his ongoing employment as a care giver could be at risk if the conviction stands. There was, however, no application to adduce further evidence at the hearing of the appeal, or affidavit evidence filed. The Crown did not have the opportunity to consider or respond to Mr Clements’ belated assertions.

[44] While I share Judge Paul’s view that Mr Clements is entitled to some sympathy for the predicament he found himself in, there is no satisfactory evidential basis on which I, on appeal, can be satisfied that there is a real and appreciable risk and that any serious consequence could occur if the conviction were to be upheld. There is, therefore, no basis on which I can conclude that the s 107 threshold has

_{been met.}

³ _{Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]}

⁴ R v Hughes [2009] 3 NZLR 222 (CA).

[45] It cannot be said that the sentence imposed by Judge Paul was manifestly excessive, or that there was any error in principle. Were I to order a discharge without conviction now, I would simply be substituting my view for that of Judge Paul, in circumstances where Mr Clements has failed to properly put before either this Court or the District Court evidence sufficient to meet the s 107 threshold.

[46] Accordingly, on the materials before me, I conclude that the appeal must be dismissed, and I so hold.

Wylie J