Mellsop v Police [2016] NZHC 317 (29 February 2016)

Last Updated: 8 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-401 [2016] NZHC 317

BETWEEN	PETER ROGER MELLSOP Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 February 2016
Appearances:	Appellant in person J Murdoch & T Bellingham for Respondent
Judgment:	29 February 2016

_{JUDGMENT OF DAVISON J}

Solicitors:

Meredith Connell, Auckland

MELLSOP v POLICE [2016] NZHC 317 [29 February 2016]

Introduction

[1] On 6 November 2012, the appellant, Mr Peter Mellsop, was sentenced to 100 hours’ community work on one charge of aggravated assault and one charge of escaping from police custody. Prior to being sentenced that same day, he had requested and had been given a sentence indication by the Judge at the District Court, Manukau, after which his case was stood down to enable him to take legal advice from his counsel and to consider his pleas in light of the sentence indication that had been given to him.

[2] The Judge had indicated that, if he decided to enter guilty pleas, she would be prepared to sentence him that day. Having taken legal advice, Mr Mellsop then entered guilty pleas to two charges. Firstly, a charge of aggravated assault, laid under s 192 of the Crimes Act 1961 and, secondly, a charge of escape from police custody laid under s 120 of the Crimes Act 1961.

[3] A third charge of disorderly behaviour, laid pursuant to s 4(1)(a) of the

Summary Offences Act 1981, was withdrawn on entry of those guilty pleas.

[4] Mr Mellsop now appeals against his conviction of aggravated assault. The appeal is brought out of time.

Background

Summary of facts

[5] The summary of facts leading to the charges against Mr Mellsop is as follows. On the night of 23 June 2012, Mr Mellsop was in an intoxicated state. He left his own property and approached his neighbour’s car, tampering with it by interfering with the wing mirrors and windscreen wipers. His neighbour attempted to restrain him. An argument then ensued in the course of which Mr Mellsop shouted and screamed, causing another neighbour to alert the Police.

[6] Mr Mellsop then returned inside his house and smashed his television set onto the floor of the lounge. His neighbour, again, attempted to restrain him and another struggle ensued.

[7] A Police Sergeant, Sergeant Scott, arrived at the property. Mr Mellsop demanded that he leave his property. Sergeant Scott said that he was entering the property pursuant to s 317 of the Crimes Act. Mr Mellsop responded violently, as put in the summary of facts, “flailing his arms and struggling with his neighbour while yelling abuse at the Police”. Following a warning, Sergeant Scott attempted to arrest Mr Mellsop but he broke free twice. Sergeant Scott then attempted to spray him with Oleoresin Capsicum Spray (OC spray) but was unsuccessful because of Mr Mellsop’s quick movements.

[8] Mr Mellsop then ran to the kitchen and picked up a large kitchen knife. Turning to face Sergeant Scott, while standing less than two meters away, he, again in the words of the summary, “swung the knife back and forward in stabbing and slashing motions”. At the same time, Sergeant Scott deployed the OC spray, which connected onto Mr Mellsop’s face and upper body. Mr Mellsop continued to move the knife around. Mr Mellsop then ran from his address and went to an address in Sandringham. He then contacted the Police and was subsequently arrested.

[9] In explanation to the Police, Mr Mellsop said he had been drinking and was in an intoxicated state. He said he felt jealous of his neighbour; and that he had escaped because he was scared of the Police.

Procedural background

[10] On 25 June 2012, when he appeared in Court, Mr Mellsop was remanded on bail without plea until 6 November 2012. As I have already noted, on 6 November

2012, he was given a sentence indication by Judge Kieran. That same day, guilty pleas were entered on one charge of aggravated assault and one charge of escaping lawful custody. A charge of disorderly behaviour was withdrawn. He was sentenced to 100 hours’ of community work and an order was made for the destruction of the knife. He has since served his sentence.

[11] On 7 December 2015, a little over three years following his convictions, Mr

Mellsop filed a notice of appeal against his conviction of aggravated assault.

Submissions

[12] The basis of his notice of application for leave to appeal is that he did not have a knife in his possession. He said in his notice “I said I did not have a knife when questioned by Police. I will repeat this claim.”

[13] On 13 February 2016, Mr Mellsop filed submissions in non-prescribed form stating:

(a) in June 2012, the Police planted false evidence at his flat;

(b) he had pleaded guilty solely because he “felt guilty” or was remorseful about what had happened, but did not intend to plead guilty in a legal sense;

(c) he is appealing “41 months after the incident because I have learnt that I have a right to do this”;

(d) he feels he has been subjected to unfair treatment; and

(e) he has been dealing with mental health problems since 2009.

[14] In his oral submissions to the Court this afternoon, he has repeated that latter point as an explanation for the delay in bringing his application for leave to appeal and his notice of appeal.

[15] Ms Murdoch, for the Crown, submits, first, that the appeal should not be heard out of time and, secondly, even if Mr Mellsop is granted leave to appeal, the appeal is meritless. In her submission, Mr Mellsop appreciated the nature of the charges against him at the time he entered his guilty pleas because:

(a) He was represented by counsel at the time of entering his pleas.

(b) He entered guilty pleas five months following his first appearance.

Therefore, there was ample time for him to consider his pleas and the consequences of entering those pleas.

(c) The sentence indication was given to Mr Mellsop on the basis of an agreed summary of facts (which made clear mention of Mr Mellsop’s use of a knife); and he entered his guilty pleas following what was indicated to him at the hearing by way of a sentence indication.

(d) Mr Melsop’s ability to plead was not impacted by his mental health

issues at the time.

[16] Ms Murdoch rejects Mr Mellsop’s position that the knife was planted in his flat by the Police. She relies on the agreed summary of facts which makes reference to the use of knife and the photograph contained in the material presented to the Court of the knife located in the kitchen on the floor, where it was found by the Police after the incident. Ms Murdoch notes that the agreed summary of facts was not taken issue with by Mr Mellsop at the time that he entered his pleas.

Extension of time to appeal

[17] Since convictions against Mr Mellsop were entered before 1 July 2013, namely on 6 November 2012, this appeal is brought under s 123 of the Summary Proceedings Act.¹

[18] The principles governing the exercise of the discretion to extend the time for appeal under s 123 are set out in the decision of Cleggs Ltd v Department of Internal Affairs:²

(i) That the onus is on the applicant to show special circumstances why the decisions and sentences should not stand;

(ii) That the discretion is given essentially for the purpose of avoiding miscarriages of justice;

¹ _{Criminal Procedure Act 2011, s 397.}

² Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984 at 2.

(iii) That all the circumstances of the particular case should be considered in deciding whether sufficient grounds have been shown; but

(iv) That one of the matters which must be established is that there is a real likelihood that an appeal would succeed if leave is granted; some of the authorities going to the stage that the likelihood must extend to the point of establishing a probability of success.

[19] The touchstone is the interests of justice in the particular case. In Isherwood v R, the Court of Appeal said:³

A balancing of all relevant interests is required. These include the public interest in finality of decisions and the individual’s interest in having the conviction or sentence reviewed, bearing in mind that an appeal may be brought as of right if it is filed within time. Also relevant are the strength of the proposed appeal, the length of the delay and the explanation for it, the prejudice to the Crown from the delay (in particular, the difficulty in conducting a retrial) and the effect of reopening the case on the victim(s). And there may be other factors as well in particular cases.

[20] This appeal is brought out of time by just over three years. Mr Mellsop’s reason for the length of the delay is founded principally upon his health in the meantime. He is saying that his mental health has been such to contribute to the delay. He has also mentioned in his papers that he has recently learnt that he is able to bring an appeal. Other than those reasons, no further detailed explanation has been provided.

[21] As to the merits of the appeal, Mr Mellsop challenges the facts on which the charge of aggravated assault was laid – namely, that he did not use a knife to attempt to apply force to Sergeant Scott. Mr Mellsop faces two difficulties with this proposition. Firstly, as Ms Murdoch has submitted, Mr Mellsop agreed to the summary of facts on which a sentence indication was accepted and, indeed, that same summary of facts was that upon which the sentence proceeded following his entry of guilty pleas.

[22] The summary of facts makes clear reference to Mr Mellsop swinging the knife back and forward, “in stabbing and slashing motions”. That is corroborated by the statement of Sergeant Scott as well as the photographic evidence of the knife said

to have used by Mr Mellsop being shown on the floor in the kitchen where located by the Police.

[23] The second difficulty faced by Mr Mellsop is that there are only limited circumstances in which the Court will entertain an appeal against conviction when a guilty plea has been entered.

[24] Overall, and as I will discuss in some detail further in this decision, my view is that there are no real prospects of success on this appeal. Mr Mellsop has not provided any evidence in support of his claims that he was not guilty and did not intend to plead guilty; that he had been let down by incompetent counsel (to the extent of the consequences of entering guilty pleas were not explained to him); and that the evidence against him had been fabricated by the Police. There is nothing to support any of those propositions.

[25] Given the lack of any real explanation for the length of delay, I consider this is a case where the interests of justice point toward the need for finality.

[26] In all the circumstances, I am satisfied that leave to appeal out of time should not be granted. In the event that I am wrong about that, I now turn to consider the substance of this appeal.

Substantive appeal

[27] As the Court of Appeal stated in R v Le Page, it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a guilty plea.⁴ The Court outlined three broad situations where a miscarriage of justice will be indicated:

(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

(b) where, on the admitted facts, the appellant could not in law have been convicted of the offence charged; and

(c) where the plea was induced by a ruling which embodied a wrong decision on a question of law.

[28] In all the circumstances, I am in no doubt that this case does not fall within the categories identified by Le Page.

[29] Mr Mellsop was not self-represented at the time of entering his pleas. He was represented by counsel, Ms Sellars, and there is nothing to suggest he had not been given adequate and competent legal advice. I note the Court of Appeal’s comment in Le Page that:⁵

where an accused is represented by counsel at the time a plea is entered, it

may be difficult indeed to establish a vitiating element...

[30] I accept Ms Murdoch’s submission that Mr Mellsop had ample time to consider entering his pleas. I also accept that Mr Mellsop did not take any issue with the summary of facts (where reference to a use of knife is clearly made) at the sentence indication hearing, or on the occasion of entering pleas the same day.

[31] I am satisfied that Mr Mellsop understood that he was entering guilty pleas and not that he was conveying to the Judge that he felt guilty. I refer to the Judge’s comment in these words:

So Mr Mellsop, I am entering guilty pleas now to the other charges, you understand that? The aggravated assault and the escaping from custody. Standing you down until a little later so you can talk to your probation officer and I can be sure that you are suitable for the sentence I have indicated, thank you.

[32] That statement makes it abundantly clear that the Court was taking care to ensure that Mr Mellsop was well aware of the implications of what was taking place and that he had time to consider his position and take advice before making a decision as to how he chose to proceed.

[33] Mr Mellsop has not sworn an affidavit setting out the circumstances in which he came to enter his guilty pleas. So far, his version of events has been inconsistent. For example, in an email to the Registry which sets out his wish to apply for legal aid (the application was rejected), Mr Mellsop said:⁶

I plead [sic] guilty at [t]he Auckland District Court under duress.

[34] In his written submissions, dated 13 February 2016, he says:

I asked [his then lawyer] to [enter guilty pleas]. She told me I could enter not guilty. I don’t understand the meaning of that. Because to me not guilty means that I don’t feel guilty.

I felt if I told the lawyer to say I said I’m not guilty then that would mean I

am not remorseful or repenting and would cause the judge to imprison me.

[35] That his counsel, Ms Sellars, told him he was able to plead not guilty negates any suggestion of duress; rather, it shows counsel’s endeavour to ensure that Mr Mellsop fully understood the options that were open to him, and indicates that she was willing to act as his lawyer and counsel in defending the charges if that was what he chose to do.

[36] I also note that, from the transcript of the sentence indication hearing, the Police considered that a charge of assault with a weapon was suitable given the (agreed) summary of facts but that it was reduced to a charge of aggravated assault “if the defence and my learned friend would like to resolve the charges today”. The fact that Mr Mellsop accepted the sentence indication that same day demonstrates to me that the decision to plead guilty was not only informed but was made in circumstances where he knew it would be in his best interests to do so.

[37] My view is that Mr Mellsop appreciated the nature of the charges against him and that his decision to plead was either informed by the sentence indication or a recognition that his account was unlikely to be believed at trial (noting his comment at his interview that he was intoxicated and could not recall the series of events that took place). Either way, Mr Mellsop’s comment that he entered guilty pleas because he wished to demonstrate remorse suggests to me that he appreciated the advantage

which would accrue to him from guilty pleas. This, again, suggests that his decision was an informed one.

[38] Mr Mellsop says he has mental health issues which he has been dealing with since around 2009. In my view, this is not a case where the Judge failed to take into account whether the defendant’s ability to enter a plea was affected by impairment or lack of capacity. I have read the letter written by Ms Sarah-Jane Longman, a Forensic Court Liaison Nurse, dated 28 August 2012. The letter is addressed to the Presiding Judge. It outlines Mr Mellsop’s history of contact with Community Alcohol and Drug Services (CADS) “dating back to 2007” as well as a history of contact with Community Mental Health Services. Ms Longman said that Mr Mellsop has “a previous diagnosis of psychosis NOS (not otherwise specified)” and that:

Currently the defendant is informally receiving care from St Lukes Community Mental Health Services. He is in regular contact with his key worker... he is currently prescribed an antipsychotic medication.

[39] I agree with Ms Murdoch’s submission that the Judge was clearly alert to his mental health issues at the time Mr Mellsop entered his pleas and, in the circumstances, the Judge was satisfied there were no issues arising in relation to fitness to plead. There is nothing that suggests Mr Mellsop had a low level of comprehension such that he was unable to understand the implications of his entering guilty pleas on the day upon which they were entered.

[40] Finally, it is worth noting that the essence of this appeal requires Mr Mellsop to show that he did not appreciate the nature of, or did not intend to plead guilty to, the charge of aggravated assault. The elements of the charge are that:

(a) he assaulted another person; and

(b) it was done with intent to avoid the arrest of himself, the commission or attempted commission of any imprisonable offence.

[41] In my view, the focus of Mr Mellsop’s appeal has been somewhat misguided and distracting. His point is not that he did not, at any point, assault Sergeant Scott

or any other person in his attempt to avoid arrest but rather, that he did not use a knife to assault another person. In both his oral submissions and written submissions, Mr Mellsop has failed to address the real issue of this appeal; being whether or not, at the time of entering his pleas, he intended to admit his guilt to the charge of aggravated assault more generally. By focusing on the use of a knife or lack of, he has failed to address other aspects of the agreed summary of facts which also support the elements of the charge and I address that point next.

[42] The Police case against Mr Mellsop (as per the agreed summary of facts) was that he assaulted Sergeant Scott using a knife. Even if Mr Mellsop is right to say that he was not, at any time during the incident, in the possession of a knife (which I reject), nevertheless I am satisfied that there was an assault in circumstances where Mr Mellsop “responded violently”, to use the words of the summary of facts, either with the Police or the victim in an attempt to avoid arrest. Mr Mellsop’s explanation that he was not being restrained by his neighbour but was rather being comforted; and his statement that he simply “opened the door politely” before being pepper- sprayed without cause is not, in my assessment, a credible narrative at all. Mr Mellsop has not shown that a miscarriage of justice will result if his conviction is not overturned.

Conclusion

_{[43] For those reasons, the appeal against conviction is dismissed.}

Davison J