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High Court of New Zealand Decisions |
Last Updated: 9 April 2018
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
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CRI-2018-485-3
[2018] NZHC 404 |
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BETWEEN
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AIDEN LESLIE NGARONGA HARLEY
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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20 February 2018
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Counsel:
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S J Fraser for Appellant
K J Draper for Respondent
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Judgment:
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13 March 2018
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JUDGMENT OF GRICE J
[1] The appellant appeals against his conviction on a charge of injuring with intent to injure under s 193 of the Crimes Act 1961. The maximum penalty for the offence is a term of imprisonment of three years. The District Court on 13 December 2017 refused to discharge him without conviction under s 106 of the Sentencing Act 2002.1
[2] The issues on appeal are:
(a) Was the Judge predisposed to declining the application for discharge without conviction?
HARLEY v NEW ZEALAND POLICE [2018] NZHC 404 [13 March 2018]
(b) Did the Judge mistake the scope of the s 106 application to extend beyond the assault charge for which it was sought, to the two other driving charges?
(c) Was the threshold for the application met in all the circumstances – particularly considering the appellant’s youth, remorse and the steps taken after the offending to rehabilitate himself?
[3] Discharges without conviction are dealt with in ss 106 and 107 of the Sentencing Act 2002. These provide:
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.
(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.
(4) [Repealed]
(5) Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.
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.
[4] It is common ground that the approach to s 106 requires an identification of the factors operating under s 107, the gravity of the offence and the consequences of conviction in order to make an assessment of whether the conviction “would be out of all proportion to the gravity of the offence”.2 If that threshold is met the Court may then decide whether or not to exercise its discretion under s 106. Counsel referred me to a number of cases on this point.3 The discretion under s 107 is a matter requiring judicial assessment. On appeal the normal appellate principles apply, including that the appellant has the onus of satisfying the appeal court it should differ from the decision under appeal.4
Issue 1: Predetermination or bias
[5] The first issue is that the judge predetermined the sentence. Mr Fraser had two arguments:
(a) The District Court Judge gave a sentencing indication to Mr Harley, which was recorded in the written record of appearance. That indication was given without submissions or evidence from Mr Harley and in the course of a call over. Mr Harley, who was represented by counsel at the call over, was then asked by the Judge to stand down to consider the apparent futility of applying for a discharge without conviction.
(b) The same Judge then heard the s 106 application on 13 December and declined it. I understand she then went on to impose the same sentence she had mentioned on 17 November 2017. The subsequent sentence is not the subject of this appeal.
2 Sentencing Act 2002, s 107.
4 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[6] Mr Fraser argued the combination of the unrequested sentencing indication on 1 November 2017 and the fact that the application was then declined by the same judge makes the decision look predetermined. Therefore, it is submitted she made an error. The appellant says the application should have been heard by a different judge.
[7] As the argument developed before me, the allegation evolved to suggest “apparent bias” based on the Judge’s indication that she had made up her mind on 1 November 2017. The second part of the argument was that it was unlawful to give a sentencing indication, without following the required formalities.
Did the judge give a formal sentencing indication?
[8] The court record notation by the presiding judge following the appellant’s advice to the Court through counsel that he would enter a guilty plea in relation to the charge of assault on 28 June 2017 reads (insofar as it is relevant):
... no conviction entered @ counsels request: no indication given:
[9] It then shows that directions were made for restorative justice to be explored, for access to documents, and for Mr Harley to attend a non-mandated family violence programme. Restorative justice was to be potentially explored at the first monitoring date.
[10] After appearances by the appellant on 9 August, 4 September and 20 September 2017, the handwritten entry relevant to this appeal appears on 1 November 2017:
Completed Te Korowai Aroha Programme – 13 sessions R.J. could not go ahead Indicated I would deal with the charges and fines today with convictions, 40 hours (W, disqualification – very lenient sentence taking into a/c completed Te Korowai Aroha Programme, G plead and (?) aged 19. Indicated in my view little likelihood of success of s 106 Application and (?) could end up with increased sentence. PTO5
[11] There is then a notation which indicates the matter was adjourned to 13 December 2017, with the appellant’s application or submission to be filed and
served by 29 November 2017 and opposition to be filed and served by 6 December 2017. That entry is signed by the District Court Judge who later sentenced the appellant.
[12] The matter came back before the Court on 13 December 2017. On that date, the s 106 application was declined and the Judge noted that the reasons were to be dictated. It is the decision of the Judge on the s 106 application made by her on 13 December 2017 which is before me on appeal.6 The subsequent Judge’s sentencing notes were not provided to me.
[13] Sentencing indications are commonly given before a guilty plea is entered or the matter goes to trial. They enable the defendant to make an informed decision as to whether to continue with a not guilty plea. The rationale is that the defendant is likely to receive a discount for a timely guilty plea. A sentence indication should only be given if requested by the defendant.7 Its purpose is to inform a defendant of the likely sentence, not to place pressure on a defendant to plead guilty. An indication will only be given if the Court is satisfied that it has sufficient information available for that purpose.8 A summary of facts, list of previous convictions and a copy of any victim impact statement will usually be before the Judge.
[14] The sentencing indication procedure is now set out in legislation, but it started out as a practice in the summary and indictable jurisdictions of the District Court. It is a process which gives clarity and certainty about the actual jeopardy a person faces if they plead guilty. An informed decision about a plea can then be made.
[15] Formal sentence indications are governed by ss 60 to 65, s 115(2), s 116 (the sentence indication is binding on the judicial officer that gave it in the absence of further information), s 245 (right of appeal against sentence not affected by sentence indication) and s 252 (a defendant receiving a sentence indication is not entitled to withdraw his or her guilty plea if a more severe sentence form that indication is imposed on appeal) of the Criminal Procedure Act 2011.
6 New Zealand Police v Ngaronga, above n 1.
7 Criminal Procedure Act 2011, s 61(1).
8 Criminal Procedure Act 2011, s 61(2).
[16] There is nothing in those provisions that indicate that the Judge may not provide the defendant with an early idea as to how the matter might be dealt with on a guilty plea. What has occurred here is short of a sentence indication, and therefore does not operate as a one. For instance, it does not bind the Judge on sentencing and there was no suggestion here that the Judge considered that she was so bound.
[17] The handwritten notes of the Judge do not suggest that she was making a formal sentence indication. Counsel for the defendant was present and confirmed the notes reflect what she said at the time.
[18] I do not consider in those circumstances that the Judge acted unlawfully or was otherwise in error.
Predetermination or apparent bias by the sentencing judge
[19] Turning to the issue of whether the judge showed predetermination requires a consideration of the legal position concerning apparent bias.
[20] Whether a judge appears to show predetermination has been described as an aspect of judicial “misconduct” in court. Examples of this type of judicial behaviour which have provided grounds for appeal usually involve extreme situations where the Judge in question clearly indicates a strong view about either the defendant or the strength of their case. An example of such misconduct was the Judge saying that he would dismiss an application before he had heard it.9
[21] In a case involving allegations of the latter variety, the High Court of Australia said that sometimes judicial interventions and observations can exceed what is a fair and reasonable expression of tentative views.10 Whether this is so is necessarily a matter of judgment. The High Court affirmed in that case that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not generally amount to partiality or bias. I am of the view that this case falls into that category.
9 Antoun v R [2006] HCA 2; [2006] 224 ALR 51(CA) per Glesson CJ at [21]-[22].
[22] I note that counsel’s submissions on this point on appeal centred around reference to both the District Court and the High Court’s recusal guidelines.
[23] Counsel for the defendant was reluctant to advance this matter an allegation of bias (or apparent bias). Rather he formulated it as the Judge having made up her mind already and to that extent she either had predetermined, or appeared to predetermine, that Mr Harley would not get a discharge without conviction on the assault charge and further what his ultimate sentence would be. This, counsel indicated, was an allegation short of apparent bias. In support of this submission on predetermination he pointed to the court recusal guidelines (promulgated under s 217 of the District Court Act 2016). Section 217 provide as follows:
217 Recusal guidelines
The Chief District Court Judge must, in consultation with the Chief Justice, develop and publish guidelines to assist Judges to decide if they should recuse themselves from a proceeding.
[24] The District Court Recusal guidelines provide as follows:11
2.1 The guiding principle is that a Judge is disqualified from sitting if in the circumstances there is a real possibility that in the eyes of a fair-minded and fully informed observer the Judge might not be impartial in reaching a decision in the case.
2.2 The test is a two-step one requiring consideration of:
2.3 The test requires ascertainment of, first what it is that might possibly lead to a reasonable apprehension that the Judge might decide the case other than on its merits and, secondly, whether there is a logical and sufficient connection between those circumstances and that apprehension.
[25] First, a Judge must consider what might possibly lead to a reasonable apprehension that the Judge might decide the case on grounds other than its merits. In
11 District Court Resual Guidelines (Ministry of Justice), The District Courts of New Zealand
<www.districtcourts.govt.nz> at 2.
the current case, the circumstances advanced are that the Judge appeared to have predetermined the result by commenting on the likelihood of success of the s 106 application and that the sentence could be increased if a s 106 application was pursued. There is no apparent bias indicated in those comments alone, which were made in the course of a busy call over list. A fair-minded reasonable observer in those circumstances would have heard the words as a comment on the options available. Reinforcing that fact, the Judge then went on to request submissions for the hearing of the application and for sentencing. In the circumstances, it was a helpful, if robust, indication to the defendant about his options. The matter then proceeded to a hearing on a later date.
[26] The second step is to look at whether the comments in light of the surrounding circumstances lead to a reasonable apprehension that the Judge may not be impartial. Here, the apprehension would be based on the view had she made up her mind to reject any application for a discharge without conviction as it related to Mr Harley. The Judge’s notation on the court file records that she referred to the “likelihood of [the] success” of the discharge without conviction application. This is not disputed. That she then asked for submissions on the application suggests she was maintaining an open mind. There was no suggestion that the defendant’s counsel had any concern about the Judge predetermining the issue. The comments complained of need to be assessed in light of the circumstances that existed at the time they were made. It is not irrelevant to the circumstances that the defendant was represented throughout. There is no suggestion that there was an application made for the Judge to recuse herself either on 1 November or at the time she dealt with the application under s 106 on 13 December. In those circumstances, I do not consider that there would be a reasonable apprehension she might not be impartial.
[27] While not relevant to consideration of the above test, a perusal of the judgment on the application for the s 106 application for a discharge without conviction shows the Judge carefully considered all relevant factors in reaching her conclusion. I put that to one side.
[28] As there is no suggestion that there is any other reason the grounds for “apparent” or actual bias I conclude that this head of appeal is not made out.
Issue 2: Did the Judge misapprehend the charges for which the discharge without conviction was sought?
[29] This next ground of appeal raised is that the Judge misapprehended the charge to which the s 106 application related. The submission is that she considered all three charges being faced by the appellant, rather than just the assault. The other charges against Mr Harley were driving related.
[30] The judgment of 13 December 2017 on its face makes it clear that the Judge was dealing with the assault charge only. The Judge first referred to details of the assault,12 and then the victim impact statement.13 She then correctly focuses on the assault charge as follows:14
[20] Turning now to an assessment of the gravity of your offending. I am of the view that your offending in relation to the assault with intent to injure charge is moderately serious. That is because it was a prolonged assault and included you continuing to assault the victim while you were driving her against her will and when you had consumed alcohol in breach of the zero alcohol limit for drivers under 20.
[21] I accept that offending could be seen to be impulsive and reckless after drinking which may reflect your age at the time which was 18 at the time. It is however relevant, in my view, that while you were on bail for the assault charge and the driving with excess breath alcohol charge, you then drove while suspended which on any view was a premeditated offence as you knew you were suspended and drove anyway.
[31] The Judge then considers the mitigating factors as follows:15
[22] There are a number of mitigating factors relating to you. They are that you are now aged 19. You have no previous convictions. You entered guilty pleas at the earliest opportunity. You were willing to go to restorative justice, but a restorative justice conference could not be convened. You have completed 13 sessions of non-violence counselling with Te Korowai Aroha. You have also done nine hours’ voluntary community work at St Vincent de Paul in Hamilton. I note that you had previously been working on Transmission Gully, but you lost your job due to the fact that you lost your licence.
[23] There are, however, some aggravating factors relating to you personally. In particular, that you previously completed diversion for a theft offence in 2015 and the infringement or matters and fines you have incurred which I have already referred to.
12 New Zealand Police v Ngaronga (Harley), above n 1, at [8]-[14].
13 At [15].
14 At [20]-[21].
15 At [22]-[28].
[24] Taking all those matters into account, I agree with the police submission that the assault was a moderately serious assault for the reasons I have referred to.
[25] In relation to the direct and indirect consequences of a conviction, I accept that the conviction for assault with intent to injure in particular, may have an impact on obtaining employment, although every day I see numerous people in this Court who obtain work on Transmission Gully that have numerous serious convictions for violence, dishonesty and other things.
[26] You have said in your affidavit that you would like to join the New Zealand Army and you are seriously considering if you can get work as a miner in Australia. Obviously, these convictions would have an impact on your ability to join the Army, but as far as I am aware they would not have any impact on your ability to travel to Australia and to obtain employment as a miner.
[27] Turning now to the disproportionality test. S 107 requires that a discharge must not be granted unless the direct and indirect consequences of a conviction are out of all proportion to the gravity of the offence.
[28] Taking into account all the matters I have considered, I am not satisfied that if you are convicted of these offences the direct and indirect consequences of a conviction would be out of all proportion to the gravity of your offending.
[32] The Judge indicated that the application for a discharge without conviction was declined and she proceeded with the sentencing.
[33] The Judge was clearly dealing with only the assault charge in relation to the application for a discharge without conviction. While the driving charges, including the alcohol charge, were part of the background of the assault, she was focussed on the assault charge when she was considering the legal steps for an application for discharge without conviction.
[34] I agree with the Judge’s approach, and the appeal therefore fails under this head.
Issue 3: Did the Judge fail to take into account the appellant’s youth and other relevant factors?
[35] The third head of appeal which I now consider contends that the Judge failed to sufficiently take into account relevant factors including the defendant’s youth when assessing the consequences of a conviction for him.
[36] It was advanced that the following factors should have been considered when assessing the consequences of conviction under s 107 of the Sentencing Act:
(a) Age;
(b) Remorse;
(c) The defendant’s capacity for rehabilitation.
[37] The discretion under s 106 of the Sentencing Act cannot be exercised unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.16
[38] The three-step analysis considers:17
(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] The Court of Appeal has confirmed in assessing the gravity of the offence the aggravating and mitigating factors relevant to the offender must be taken into account in addition to the features of the offence.18
[40] In this case, the Judge considered the gravity of the offending as “moderately serious”.19 She commented on the prolonged assault which continued while the appellant was driving the complainant against her will. She accepted that the offending could be seen as impulsive and reckless which may reflect the appellant’s age at the time, which was 18.
16 Section 107 of the Sentencing Act 2002.
17 Section 107 supra.
18 Z (CA477/12) v R [2012] NZCA 599 at [27].
19 NZ Police v Ngaronga (Harley), above n 1, at [20].
[41] I am of the view that her assessment of the offending was correct. She then considered the mitigating factors relevant to the offender. These included:
(a) His young age of 18.
(b) The lack of previous convictions.
(c) His willingness to go to restorative justice and the completion of 13 sessions of non-violence counselling with Te Korowhai Aroha as well as nine hours voluntary community work at St Vincent De Paul in Hamilton.
(d) His previous history of working in Transmission Gully, a job he lost when he lost his licence.
(e) His consideration of a future career in the New Zealand Army or as a miner in Australia. Nothing concrete in relation to his career plans had been put forward because, as counsel submitted, he was still in the course of deciding his future.
[42] Her Honour also took into account the fact that the appellant had previously completed diversion for a theft offence in 2015 and also had a number of fines which at that stage had not been dealt with.
[43] I am satisfied the Judge carefully identified the relevant mitigating factors which were personal to Mr Harley. I am also satisfied that the Judge accorded the appropriate weight to those factors in her overall assessment. I do not consider the Judge erred in this process.
[44] I turn to the second part of the s 107 test which requires an assessment of the direct and indirect consequences of the conviction to the appellant.
[45] A “real and appreciable” risk that a consequence will ensue is all that is required.20 The Court is entitled to consider the likelihood of the consequence materialising.
[46] This is not a situation where the appellant has decided to embark on a career where the consequences of the conviction may prevent the appellant from either entering training or being registered. He points to a possible career in the New Zealand Army or going overseas to Australia. There was no specific evidence before me as to the impact that the conviction would have on either of those career choices. However, the Judge commented that as far as she was aware the convictions would not have any impact on his ability to travel to Australia and to obtain employment as a miner.21 No issue was taken with that comment on appeal.
[47] I do not consider on the information available that Mr Harley’s conviction will pose an insurmountable barrier to his future career options, and therefore that factor cannot properly be regarded as a “real and appreciable risk”. The stigma which flows from a conviction such as this will be significant for Mr Harley, particularly given his age, but that stigma is a consequence which flows from this type of conviction. It applies to most young people facing convictions. Mr Harley’s age in itself does not make the consequences of conviction out of all proportion to the gravity of the offending.
[48] I do take notice of the particular matters relating to the development of the adolescent brain, which were emphasised by Mr Fraser in this case. Those were referred to, relying on psychiatrist’s evidence, in Churchward.22 I am satisfied, however, that in this case the Judge put appropriate weight on the youth of the offender in the circumstances.
20 DC CA47/2013 v R [2013] NZCA 255 at [43].
21 New Zealand Police v Ngaronga (Harley), above n 1, at [26].
22 Churchward v R [2011] NZCA 531.
Result
[49] The appeal against refusal to grant a discharge without conviction under s 106 of the Sentencing Act 2002 is dismissed.
Grice J
Solicitors:
S J Fraser, Wellington for Appellant
Crown Law Office, Wellington for Respondent
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