PRITCHARD v NEW ZEALAND POLICE [2021] NZHC 2821

PRITCHARD v NEW ZEALAND POLICE [2021] NZHC 2821 [21 October 2021]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-015[2021] NZHC 2821BETWEEN ADRIAN REGAN PRITCHARDAppellantAND NEW ZEALAND POLICERespondentHearing: 13 October 2021Appearances: P Jensen for the Appellant (audio only) I Murray for the Respondent (AVL)Judgment: 21 October 2021JUDGMENT OF GRICE J(conviction and sentence appeal)[1] As a result of an incident on the evening of 14 March 2020, Adrian Regan Pritchard, 49 years old, was convicted of the assault of a six-year-old child. He was initially charged with assault of both the child and the child's father.[2] I summarise the factual background based on the findings in the District Court.[3] At 9:00 pm Mr Pritchard, a man who worked as a counsellor in addiction services, attended the house of the child's mother after she had called for his assistance. The mother was to collect clothing from the house before going to stay at another address for the night. Shortly after Mr Pritchard arrived at the house, so did the child and the child's father, who were angry at Mr Pritchard and began yelling at him. At some stage the child ran up to Mr Pritchard's car and kicked it. In response, Mr Pritchard swore at the child, and attempted to punch him. His blow did not connect because the grandmother was able to pull the child out of the way. The child's fatherbecame aggressive and placed himself between Mr Pritchard and his vehicle. Mr Pritchard pushed the father out of the way to get to his vehicle. Mr Pritchard then drove away.District Court decision[4] The charges were determined in a judge-alone trial in the District Court on 9 June 2020. 1 His Honour heard evidence from four witnesses: the child's grandmother, the child's mother, the child's neighbour, and Mr Pritchard.[5] His Honour accepted the evidence given by the mother and grandmother and rejected the contention that they had colluded in any way.2 The Judge was further assisted by the neighbour's evidence, in particular, by the neighbour's testimony that she heard a man say "you fuckin little cunt". 3 His Honour said that those words gave weight to the evidence given by the mother and grandmother. The Judge noted Mr Pritchard's denials but, in respect of the charge of assaulting the child, found him guilty. In making that decision, the Judge said:[29] So therefore, in respect of the charge of assaulting [the child], a child aged six years, I find that to be proven. It is my view and I find that Mr Pritchard, whether it was because he was angry or had become incensed for whatever reason, got out of his vehicle, swore at [the child] and then took a swing at him. Even though he did not connect with his punch I am satisfied to the standard required that he did intentionally apply force. Therefore, on the assault on a child I find Mr Pritchard guilty of that offence.[6] The Judge found Mr Pritchard not guilty of the charge of assaulting the child's father as he accepted Mr Pritchard had acted in self-defence. 4 Mr Pritchard applies to this Court for the District Court conviction to be overturned or, in the alternative, for his sentence to be changed to a discharge without conviction.1 Police v Pritchard [2020] NZDC 10637.2 At [27].3 At [28].4 At [32].SubmissionsAppellant[7] Mr Jensen, for Mr Pritchard, says that the trial Judge erred in his consideration of the evidence. Mr Jensen submits that the Judge did not give sufficient consideration to the appellant's evidence as to the relevant facts that evening. In his submission, the narrative relied upon by the Judge in convicting Mr Pritchard of assault does not make sense in light of Mr Pritchard's testimony. Mr Jensen also submits that the Judge ought to have further questioned the reliability of the other witnesses' evidence. On this basis, I infer that he submits the conviction be overturned.[8] In his oral submissions Mr Jensen referred to further matters, including whether a witness should have been called and criticising the police for not calling a witness. Neither of those matters were put forward as grounds for appeal nor do they appear to have any substance. I put those to one side.[9] Alternatively, Mr Jensen submits that Mr Pritchard ought to be discharged without conviction. He submits that the seriousness of the offence is at the very bottom of the scale and the consequences of the conviction on the appellant have been direct and considerable. In his submission, the consequences of the conviction for Mr Pritchard have been all out of proportion in the circumstances, especially in light of his line of work. On that basis, Mr Jensen submits that this Court ought to grant Mr Pritchard a discharge without conviction.Respondent[10] As a preliminary issue, Mr Murray, for the police, submits that the appellant has submitted evidence in support of his conviction appeal that cannot be considered. An application to adduce fresh evidence has not been made nor, in his submission, could the evidence be introduced even if an application had been made as it was available at the time of trial.[11] Mr Murray does not oppose the introduction of fresh evidence for the purposes of appealing to this Court seeking a discharge without conviction.[12] In relation to the Judge's interpretation of the evidence before him, Mr Murray submits that His Honour made an orthodox analysis and there was no error in his assessment of the evidence. It is Mr Murray's submission that the Judge was entitled to prefer the evidence of the three prosecution witnesses who all support the narrative in which Mr Pritchard attempted to punch the child.[13] As to whether Mr Pritchard ought to be discharged without conviction, Mr Murray submits that the Court ought to dismiss the application. In his submission the offending is moderately serious and the consequences of conviction for that offence are not such that they are wholly disproportionate as to outweigh the gravity of the offending.Law on appealConviction appeal[14] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a "miscarriage of justice has occurred for any reason".[15] A "miscarriage of justice" is defined in s 232(4) as "any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity". As demonstrated by the legislation, and reiterated by the Supreme Court, not every error or irregularity causes a miscarriage of justice. Importantly, "a miscarriage is more than an inconsequential or immaterial mistake or irregularity". 5[16] A "real risk" that the outcome was affected exists when "there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong".6 This standard means that "an appellant does not have to5 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].6 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].establish a miscarriage in the sense that the verdict is actually unsafe" but that there is a real possibility the verdict would be unsafe. 7Discharge without conviction[17] An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.8 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred: 9(a) by virtue of a material error by the sentencing judge in entering a conviction; or(b) as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act 2002.[18] Section 106 of the Sentencing Act 2002 provides that if a person is charged with an offence is found 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".[19] The application of s 106 is guided by s 107 which provides as follows:107 Guidance for discharge without convictionThe 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.[20] As stated by the Court of Appeal in R v Hughes, s 107 "provides a gateway through which any discharge without conviction must pass".107 Sungsuwan v R, above n 6, at [110].8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].9 At [12].10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].[21] The Court noted that such an appeal is not an appeal against the discretion of the Court: 11[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.[22] The approach to be adopted by an appeal court in relation to s 107 has been summarised as: 12[28] An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.[23] More recently, the Court of Appeal, speaking of the s 107 test, said: 13[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;(b) identification of the direct and indirect consequences of conviction; and(c) a determination of whether those consequences are "out of all proportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a "real and appreciable" risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.11 R v Hughes, above n 10, at [11].12 Denden v Police [2014] NZHC 1814 (footnotes omitted).13 Prasad v R [2018] NZCA 537 (footnotes omitted).[24] In terms of the gravity of the offence, the Court of Appeal has summarised the correct approach to take as follows: 14[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).[25] When considering the direct and indirect consequences of conviction on a defendant, the Court of Appeal stated that: 15The 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 consequences.[26] The Court of Appeal recently confirmed in R v Smyth that: 16[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.[27] Once the Court is satisfied that the disproportionality test has been met pursuant to s 107, it may then determine whether to order the discharge. 17DiscussionPreliminary matters[28] Neither party commented on whether the application should be heard out of time. However, it is clear from the documents surrounding the minute from this Court dated 16 August 2021 that the application was unopposed.18[29] I grant leave to appeal.14 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (footnotes omitted).15 DC (CA47/2013) v R [2013] NZCA 255 at [43].16 R v Smyth [2017] NZCA 530.17 Z (CA447/2012) v R, above n 14, at [21]; and R v Hughes, above n 10, at [8]–[12].18 Pritchard v Police HC Te Whanganui-a-Tara | Wellington CRI-2021-441-015, 16 August 2021.[30] As to the admission of fresh evidence, I agree with Mr Murray that the evidence contained in paragraphs [1]–[10] of Mr Pritchard's affidavit is not fresh. 19 It was capable of being obtained at the time of trial. As a result, it does not pass the test outlined in Lundy v R and should not be admitted.20 Mr Jensen proceeded in his written submissions that he accepted the evidence was not fresh but was an analysis of the material before the Court. The material also referred to whether Mr Pritchard's wife should have given evidence (although she had not been present at the altercation) or been in Court (she was excluded because of COVID-19 restrictions) and whether the police should have called another witness. These are matters of submission and, in any event, are not relevant to the appeal. The material referred to is inadmissible.[31] An application has not been made to adduce the remainder of the affidavit as fresh evidence but, if it had been made, the respondent does not oppose its admission.[32] I admit the evidence in paragraphs [11]–[17] of Mr Pritchard's affidavit.Did the Judge err in his interpretation of the evidence?[33] The Judge carefully reviewed the evidence he heard and was required to make a credibility finding. He did so as follows:[27] Notwithstanding Mr Pritchard's strenuous denials that he swore or that he swung at [the child] I have formed the view, based on the evidence, that he did assault [the child]. The reason I do this is that I have heard today credible evidence from [the grandmother] and from [the mother]. I do not accept that they have colluded in any way. There were some consistencies in their evidence but there were also some inconsistencies, but in those inconsistencies they were not to such a degree that it made their evidence unbelievable.[28] But what assists me further is the evidence of [the neighbour] who was a disaffected party, who is not part of the [family] household. She was listening and observing, particularly because of the loud noises that she could hear. She recognised that there was trouble afoot, called police and then went specifically to watch and observe. Her clear evidence is that she heard the voice of a man say, "You fuckin little cunt." Given that she was there to observe, as I have said, I accept absolutely that what she says happened, happened. If those words were spoken then that gives credibility to and lends weight to the evidence given by [the grandmother] and [the mother].19 The affidavit was dated 20 September 2021.20 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].[34] There was ample evidence upon which the Judge could have based his conclusion. That is not really contested. Rather it is the Judge's preference for the evidence of the three witnesses, including that of two eyewitnesses, rather than that of the defendant which is the basis for appeal. The Judge made no error in his assessment and the findings were open to him.[35] I dismiss this ground of appeal.Discharge without conviction[36] The police have indicated they do not oppose the further evidence being adduced for this purpose although no formal application has been made. I treat the filing of the evidence as the formal application and give leave for it to be adduced in relation to the discharge without conviction only.[37] The police have laid out the basic principles in relation to the consideration of an application under s 107, which was set out by the Court of Appeal in the case ofZ v R. 21 It requires the Court to undertake a three-step analysis to consider:(a) The gravity of the offending: the Court should consider all the aggravating and mitigating factors relating to the offending and the offender.(b) The direct and indirect consequences of conviction for the offender.(c) Whether those consequences are out of all proportion to the gravity of the offending.[38] Then remains a residual discretion as to whether to grant the discharge. Rarely, if ever, is a discharge refused once the three-stage process has been successfully undertaken, as this Court said in Blythe.21 Z (CA447/2012) v R, above n 14, at [27].[39] Mr Murray submits that the offending is moderately serious and that there are no personal mitigating factors to reduce that seriousness. Mr Jensen submits that there was a certain degree of provocation, the blow did not actually reach the child and he notes that Mr Pritchard was only present at the scene of the incident in response to a request from the child's mother for help. It is also clear from Mr Pritchard's affidavit that he has made some progress in reforming his life and that this conviction has and will continue to set him back significantly in that respect.[40] The sentencing Judge was reasonably lenient given that a custodial sentence of up to two years could have been imposed and instead Mr Pritchard was asked to pay reparations of $500. I accept the submission of Mr Murray to the extent that the offending was not at the very lowest end of the possible range. Nevertheless, the sentence indicates the Judge did not consider it was a serious assault but, at the same time, it relates to an assault on a six-year-old child, which by its nature has some significance.[41] I now turn to consider the effect of the impact of a conviction on Mr Pritchard and his chosen career. The Court must consider "not just those consequences that 'would inevitably or probably occur', but all those where there is a real and appreciable risk that such consequences would occur". 22[42] The appellant has filed an affidavit setting out the alleged consequences as "the conviction has had a tremendous negative effect on the family. It took the wind right out of my sails. It stopped my career path dead". The letters to which he refers in his affidavit are:(a) a letter from Mr Andrew John Lamont, deputy chairman of "It Takes Time Trust Incorporated" dated 13 August 2021. Mr Lamont says his organisation is a charitable trust and incorporated society. It was seeking funding to employ Mr Pritchard on a permanent basis as an addictions counsellor but said it would be prevented from doing so if he was unable to achieve registration and would be prevented from22 Chowdhery v Police [2021] NZHC 1061 at [27]; citing Alshamsi v Police HC Tāmaki Makaurau | Auckland CRI-2007-404-62, 15 June 2007 at [20].employing him under the Vulnerable Children's Act 2014. He further gave a personal view of Mr Pritchard as having completed punishment for his crime and indicated he was suffering "further undue emotional, physical and financial hardship' when Mr Pritchard had genuinely tried to rise above his mistakes from the past and benefit others stuck in a cycle of addiction abuse. The letter indicated that Mr Pritchard was studying for his diploma in Addictions Counselling and would be unable to achieve registration as an addictions and mental health counsellor with the conviction.(b) an undated letter from Mr Sean Robins on the letterhead of the Department of Corrections, Hastings Community Probation. This was a reference to Mr Pritchard care of the "It Takes Time Trust". It indicates he was impressed with Mr Pritchard's enthusiasm for supporting individuals that would not be considered by most other agencies due to their offending history. Mr Robins said he had placed several offenders with Mr Pritchard since commencing at the Community Work Agency in Hastings. He said he found Mr Pritchard in his role to be professional and open to communication with both Probation and the offenders and the result was a very successful completion of a substantial number of community work hours. Mr Jensen explained that Mr Pritchard had located and encouraged offenders serving community work to do their community work hours and had been successful at that.[43] There is no further detail provided about what sort of registration Mr Pritchard seeks and what the requirements for such registration would be in so far as his previous history was concerned. There was no evidence from the registration body or the membership organisation which would apparently likely not grant registration to Mr Pritchard.[44] It does appear that Mr Pritchard has demonstrated an ability over recent times to keep clear of offending. There was a careless driving conviction in 2014, however, for present purposes that is not directly relevant. The history before that includes a2005 conviction for common assault which appears to be a minor matter. Before this, dating back from 2002 there are numerous convictions, including some serious convictions involving violence. I have some sympathy for Mr Pritchard's argument that he has left his past behind him and the present conviction is largely isolated. He has achieved a great deal since 2002, which he is now concerned has been put in jeopardy.[45] However, the offending, while not at the serious end of the range, is nevertheless moderately serious and involves a child. The evidence adduced does not support the fact that the consequences for Mr Pritchard's career will be out of all proportion to the gravity of the offence. I accept there will be some consequences. Employers will no doubt be put on guard, however, the circumstances of the offending can readily be explained by Mr Pritchard.[46] On the evidence I am not satisfied that the conviction would end his career and his prospects of working in the addictions field. The evidence produced falls well short of establishing that.[47] I must come to my own view of the merits as the matter of a discharge without conviction was not considered in the District Court. That was not addressed in argument in any detail. Nevertheless, in my view, the direct and indirect consequences of a conviction are not out of all proportion to the gravity of the offence.[48] The application for a discharge without conviction fails.Conclusion[49] I grant leave to appeal out of time.[50] I decline the admission of the affidavit evidence as it relates to information that was available at the time of trial, namely paragraphs [1]–[10] of Mr Pritchard's affidavit.[51] I admit the remainder of the affidavit evidence in relation to the application for a discharge without conviction.[52] I decline the conviction appeal on the basis that the trial Judge made no error in interpreting the evidence before him.[53] I dismiss the application for a discharge without conviction._____________________Grice J