AEZH v Police [2016] NZHC 1279 (14 June 2016)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

AEZH v Police [2016] NZHC 1279 (14 June 2016)

Last Updated: 14 July 2016

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY S 201

_{OF THE CRIMINAL PROCEDURE ACT 2011.}

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000041 [2016] NZHC 1279

BETWEEN	AEZH Appellant
AND	NEW ZEALAND POLICE Respondent

_{CRI-2016-409-000043}

BETWEEN AEZH Appellant

AND NEW ZEALAND POLICE Respondent

Hearing:	14 June 2016
Appearances:	D J Matthews for Appellant AMS Williams for Respondent
Judgment:	14 June 2016

_{ORAL JUDGMENT OF GENDALL J}

[1] The appellant appeals against a decision of His Honour Judge Garland in the District Court dated 2 May 2016 declining his application for a discharge without conviction in respect of six charges of wilful trespass and six charges of offensive behaviour.

Background

_{[2] The facts were summarised by Judge Garland as follows:}

AEZH v NEW ZEALAND POLICE [2016] NZHC 1279 [14 June 2016]

[3] On 7 April 2014 he was trespassed from Westfield Mall, Riccarton, Christchurch. On 18 November 2014 he was trespassed from Farmers, Westfield mall. On those occasions the trespass notice was explained in full and the defendant acknowledged that he understood.

[4] On each day between 20 and 24 July 2015, the defendant entered the library at the University of Canterbury. On each occasion he approached students and asked them to put cellotape on his chest. On some of these occasions he also asked them to put cellotape on his penis, which offended some students. On numerous occasions the defendant entered the Westfield mall, approached other males and asked them to put cellotape on various parts of his body.

[5] On Thursday, 19 November last year, the defendant was in the mall and was recognised by security staff. As they approached him, he ran off and was stopped by police in Rotherham Street. He offered no explanation for his actions.

[6] On 19 October he entered the Farmer store, Westfield Mall. When approached by staff, he ran off.

[3] The appellant has been diagnosed with Asperger’s syndrome since the age of

10. A specialist report which I understand is dated back in 2004 observed communication problems with his parents, teachers and classmates. The appellant, it is said, isolates himself for most of the time and avoids eye contact when talking to others. The report also recognises situations whereby his behaviour deteriorates when he is under stress or in an unfamiliar environment. His father explains that immigrating to New Zealand in 2013, I understand from Malaysia, was partly to blame for what he describes as the appellant’s odd behaviour.

[4] A further report was prepared in 2012 when the appellant’s parents were worried about their son’s condition. Expert medical opinion confirmed that the appellant has a rigid pattern of thinking and is unable to learn and accept new ideas. He also has problems following instruction and communicating with others.

[5] In a letter written to the Christchurch District Court, the appellant’s father has apologised for the appellant’s offensive behaviour. The father plans to take the appellant back to Malaysia and, indeed, I am told from the Bar he is departing today. When he returns to Malaysia it is intended that the appellant can seek further treatment and be placed under close monitoring.

The District Court decision

[6] Turning now to the District Court decision, while Judge Garland there was sympathetic to the appellant’s condition, he refused to grant a discharge without conviction. His Honour was of the opinion that the only consequences of a conviction were general consequences that flow in the sense of embarrassment and stigma that might be attached. His Honour was not convinced on the evidence before him that a conviction would have a negative impact on the appellant’s mental health. His Honour was also not satisfied that the convictions would disrupt any future travel plans.

Law

[7] Sections 106 and 107 of the Sentencing Act 2002 govern the granting of discharge without conviction. In order for me to exercise this discretion, I must be satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.¹

[8] Appeals against a refusal to grant a discharge without conviction are not an appeal against sentence but rather a general appeal. This was explained in R v Hughes:²

[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.

[9] As the first appellate Court, I therefore need to consider the issues afresh.³

The decision in Z v R has established a three-stage approach to assessing whether a discharge of conviction should be granted.⁴ The steps are first, to identify the gravity of the offence, secondly, to identify the consequence of a conviction, and finally to

_{weigh those two to answer the proportionality inquiry under s 107.}

¹ _{Sentencing Act 2002, s 107.}

² _{R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.}

³ _{Austin Nichols & Co v Lodestar [2007] NZSC 103 at [4]- [5].}

⁴ Z v R [2012] NZCA 599, [2013] NZLR 142.

Gravity of the Offence

[10] As to the gravity of the offence, the six charges of offensive behaviour are punishable by fines alone. The offences of wilful trespass carry only a maximum penalty of three months’ imprisonment. Whilst in his decision Judge Garland noted the sexual connotations were of concern to the police, I accept counsel’s submission advanced before me that the appellant here was never charged with any indecent act related offences. The penalty attached to the offences in question here might be seen therefore as towards the bottom of the criminal spectrum.

The direct and indirect consequences of conviction

[11] Turning now to the direct and indirect consequences of conviction, the Court of Appeal in DC v R held that:⁵

The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequence.

[12] In my opinion, in this case Judge Garland did not err in law when his Honour concluded that there was insufficient medical evidence to support a firm contention that the convictions here would negatively impact the mental health of the appellant. I accept that all that is required is for the Court to be satisfied that there is a real and appreciable risk for such consequences to occur and, in assessing whether there is such a real and appreciable risk, the Courts are also entitled to take judicial notice of what may be seen as any direct and indirect consequences where appropriate. But in this case there is nothing before the Court regarding these particular aspects by way of independent evidence.

Section 107 balancing test

[13] Turning now to the s 107 balancing test, I am not satisfied in this case the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. On this it is interesting, however, to note that despite Judge Garland’s refusal to grant a discharge without conviction, he did proceed to

_{grant the defendant permanent name suppression, acknowledging that publication of}

⁵ DC v R [2013] NZCA 255 at [43].

the defendant’s name would cause extreme hardship, given his medical diagnosis. But I am satisfied, nevertheless, that name suppression here and issues of the stigma or consequences surrounding conviction are quite separate matters.

[14] I conclude generally that in this case there is no information that was placed before the District Court or, indeed, before this Court on appeal to inform the Court of the specific consequences of a conviction on the appellant. I find therefore the statutory requirements of s 107 have not been met and therefore this appeal should be dismissed. I am also satisfied that Judge Garland here made no error of law in declining to grant the appellant’s application for a discharge without conviction and that he correctly undertook a two-stage enquiry provided under ss 106 and 107 of the Act. He correctly, in my view, assessed the gravity of the offending here as low to moderate rather than extremely low as was submitted to me today by Mr Matthews, counsel for the appellant. I am satisfied Judge Garland was influenced to some extent by the fact that the offending in question involved quite unusual behaviour accompanied on occasions by some sexual connotations. The offending was also repeated on a number of different occasions despite numerous warnings being provided to the appellant. It clearly also caused offence to a number of members of the public. Finally, I am satisfied Judge Garland did take into account as a mitigating factor both the appellant’s age and his diagnosis with Asperger’s Syndrome.

[15] Lastly, I conclude that the appellant has put nothing before this Court, as I have said above, to enable me to be satisfied the consequences of a conviction would be disproportionate to the gravity of the repeated offending which occurred here.

[16] I bear in mind also that I am told the appellant is returning to Malaysia today for treatment for his condition and perhaps for possible permanent settlement there in the future. Travel issues relating to the conviction there, I am told, will not arise to any significant extent here.

Result

[17] In final conclusion I am satisfied that the direct and indirect consequences of

the appellant’s conviction here are not out of all proportion to the gravity of the

offending. The threshold test not having been met under s 107 in the exercise of discretion to discharge without conviction, therefore, it does not come into play. For all these reasons the appeal is dismissed. The permanent name suppression for the appellant remains however.

...................................................

Gendall J

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co, Christchurch