BROWN v NEW ZEALAND POLICE [2019] NZHC 2348

BROWN v NEW ZEALAND POLICE [2019] NZHC 2348 [17 September 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-24[2019] NZHC 2348BETWEEN COLLIER BROWNAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2019Appearances: G J Denize for the AppellantF E Cleary for the RespondentJudgment: 17 September 2019JUDGMENT OF CULL J[1] Mr Brown appeals both his conviction and the decision declining his s 106application. He was found guilty of two charges of resisting arrest in a judge alonetrial at the District Court at Napier.1 On 6 May 2019, Mr Brown was sentenced to a$70 fine, and the Judge declined Mr Brown's application for a discharge withoutconviction.2[2] Mr Brown appeals his conviction on the ground that the District Court Judgeerred in his assessment of the evidence. In his appeal against the decision declininghis s 106 application, he alleges the Judge failed to consider relevant mitigatingfactors.1 New Zealand Police v Brown [2019] NZDC 17303 [Conviction decision]; Summary Offences Act1981, s 23(a); maximum penalty three months' imprisonment or $2,000 fine.2 New Zealand Police v Brown [2019] NZDC 13033 [Section 106 decision].Factual background[3] The charges subject to this appeal arise from an incident in October 2018.Other charges arose from the same incident (dangerous driving, prohibited driving,possession of cannabis and failing to stop for flashing lights) but those charges weresevered and transferred to Tauranga.[4] Mr Brown was 17 years old at the time of the offending. On the morning ofthe 27 October the appellant was driving in his Ford Falcon in Napier. The appellantwas prohibited from driving and was under the influence of cannabis. Forapproximately 20 kilometres the appellant led Police on various high-speed chasesfrom the north of Napier to the north of Hastings. At several points Mr Brown wasdriving at speeds in excess of 150 kilometres per hour. At various points Policepursuits were called off due to public safety concerns.[5] At approximately 9.30 am, Constable Palmer was patrolling in the Flaxmerearea when he was notified via radio that Police were in pursuit of a fleeing driver, MrBrown. Constable Palmer drove to an intersection off the Flaxmere expressway andspotted Mr Brown's vehicle. Constable Palmer commenced pursuit, with his flashinglights and sirens activated. Constable Marshall had been following Mr Brown'svehicle in an unmarked police car, without lights and sirens in order to report MrBrown's position. Mr Brown was followed for approximately two kilometres byConstable Palmer and Constable Marshall. Mr Brown then pulled his car over ontothe shoulder of the road. Constable Palmer then parked his vehicle directly behind MrBrown's vehicle.[6] Constable Marshall parked his patrol car directly in front of Mr Brown'svehicle on an angle so as to block the front of the vehicle. The patrol car wasapproximately 10 cm from Mr Brown's car.[7] Constable Palmer got out of his vehicle and approached Mr Brown. Mr Brownthen forcefully accelerated, closing the gap between his car and Constable Marshall'scar. Once Mr Brown's car came into contact with Constable Marshall's patrol car hisback tyres began to spin.[8] Constable Palmer then smashed the front driver door of Mr Brown's car withhis baton and reached through the window to grab the keys from the ignition.Constable Marshall then sprayed pepper spray on Mr Brown's face. Mr Brown thenmoved towards the passenger side door. Constable Marshall opened the driver's doorand grabbed Mr Brown, pulling him back out of the car and onto the ground. MrBrown continued to struggle and kick at the officers while he was on the ground. Heswore at them, telling the officers to "fuck off". The officers handcuffed Mr Brownand marched him over to Constable Palmer's patrol car. Mr Brown continued tostruggle against them and refused to get into the car. The officers pushed him into thevehicle.Conviction appealDistrict Court decision[9] After outlining the charges, the Judge outlined the non-contentious facts. Theywere that Mr Brown had been pursued by police in a high-speed chase and had cometo a complete stop, before being blocked in position by two police patrol vehicles. TheJudge then turned to a consideration of the competing accounts of the facts.[10] The Crown case was that on the first charge, Mr Brown resisted ConstablePalmer by accelerating heavily and driving into the front police car, causing the wheelsof his car to skid and attempted to climb over the front passenger to get out thepassenger door when Constable Marshall used OC spray against him. As to the secondcharge, Mr Brown resisted Constable Marshall by struggling on the ground and/orrefusing to enter Constable Marshall's patrol vehicle. Both Constable Marshall andConstable Palmer gave evidence to that effect.[11] The defence case was that, on the first charge, Mr Brown did not accelerateheavily, but came to a stop. Further, Mr Brown did not attempt to climb over the frontpassenger to get out, but to protect his girlfriend, who was sitting in the passenger'sseat. As to the second charge, Mr Brown struggled on the ground due to the effects ofthe OC spray, not to resist arrest. Finally, Mr Brown says he did not struggle to avoidgetting into the police vehicle.[12] The Judge also noted the photographic evidence produced that indicated thatMr Brown's car was in physical contact with the unmarked patrol car.[13] In considering the differing accounts and respective credibility of thewitnesses, the Judge gave weight to the events leading up to the alleged resistance:[7] We know from Mr Brown's own evidence that he had been drivingdangerously, he has apparently pleaded guilty to that in another Court. Weknow that he wished at that stage to get away from the police, he has told usthat in evidence. That sets the tone.[12] This was a situation where the police have been taken on a 20 oddkilometre adventure by a suspected 17 year old driver in a very powerfulsports saloon and it was appropriate that the police should act quickly andpositively to bring that conduct to an end. That is not to condone excess policeforce but to shed an air of reality on a situation which otherwise might assumean air of unreality.[14] The Judge noted the "evidence of the two officers coincided in all elementsmaterial to the allegation of obstructing both of them".3 As for Mr Brown, "[t]he bestthat can be said for the defendant is that his recollection of matters was hazy as a resultof the deployment of OC spray, of his earlier consumption of cannabis and his desireto escape the police".4[15] The Judge concluded he was satisfied as to the officers' account of the facts,and held both charges proven accordingly.Approach to appeal[16] An appeal against conviction in a Judge-alone trial is governed by s 232 of theCriminal Procedure Act 2011. This appeal is brought under s 232(2)(b):232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—3 Conviction decision, above n 1, at [14].4 At [15].(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred.(c) in any case, a miscarriage of justice has occurred for anyreason.(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[17] The Supreme Court recently re-examined the approach to assessment ofevidence for conviction appeals in Sena v New Zealand Police.5 The Court held thatappeals in such cases should proceed by way of rehearing in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.6First ground of appeal against conviction: that the Judge erred in his assessment ofthe evidence.[18] Ms Denize for Mr Brown submits that the District Court Judge erred inconcluding Mr Brown resisted arrest by accelerating the vehicle after he had pulledover. She submits the oral evidence from Constables Marshall and Palmer wasinconsistent with the photographic evidence and the damage to the front policevehicle.[19] Constable Marshall's evidence was that he parked his patrol car directly infront of Mr Brown's vehicle on an angle so as to block in the car and prevent it frommoving. The patrol car was approximately 10 cm from Mr Brown's car. ConstablePalmer got out of his vehicle and approached Mr Brown. Constable Marshall'sevidence was that at that point, Mr Brown's vehicle began to accelerate. As Mr5 Sena v New Zealand Police [2019] NZSC 55.6 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.Brown's car closed the gap and was hard up against Constable Marshall's car, MrBrown's wheels began to spin:Q. Constable Marshall, your evidence earlier was that you estimated 10centimetres?A. Yes.Q. A 10 centimetre movement, so you saying that the vehicle hastravelled forward 10 centimetres?A. Approximately.Q. Approximately and you're saying that the rear left wheel was smokingand that was caused when it had previously been on the tar seal, is thatcorrect?A. Yes, it began spinning, smoking, moving left, pivoting left off my carand the[n] moved into the grass where it kicked up dust and such.[20] Constable Marshall said there was only minor damage to the front of hisvehicle from the impact: a small bit of paint transfer and a small ding. ConstablePalmer's evidence was consistent with that account:Q. Was his vehicle stationary at that time or not?A. Immediately as the other constable pulled his car in front which therewasn't a very big gap but he ran into the side of it and so his vehiclewas kind of sliding as the wheels were spinning, it was partially onthe grass.Q. Had the green vehicle been stationary at that place at any time?A. Yes, yes.Q. And then moved again?A. Yes.[21] Constable Marshall gave evidence there was only minimal damage. I considerit is a reasonable inference that if Mr Brown accelerated for only 10 centimetres, itwould result in a light impact, and consequently, only minor damage. The cars are justtouching in the photograph produced. The only alternative theory as to why the carsare touching is that Constable Marshall's car overshot the distance as he pulled over,scraping the side of his car as he did so. However, there is no evidence of scratchesor scrapes on Constable Marshall's car. Finally, Mr Brown himself admitted inquestioning from the Judge that he did not feel Constable Marshall's car hit his ownas he pulled up:Q. And the car that blocked you in front did that hit your car at that time?A. It was really close, like he was real.Q. Did it hit your car or not?A. I'm not too, I can't answer, I don't know.Q. Did you feel it hit your car?A. No.[22] I find it was open to the Judge to accept the Constables' evidence and concludeMr Brown accelerated his vehicle.[23] Ms Denize further submits the Judge erred in finding Mr Brown attempted tofight off the officers on the ground after he had been dragged out of the car. She arguesthat rather, Mr Brown was thrashing on the ground from the effect of the pepper spray.She says Mr Brown's evidence was consistent with that. But as the Crown points out,the fact that Mr Brown's evidence was consistent with this theory is far fromconclusive. Constables Marshall and Palmer gave a different account. On theirevidence, Mr Brown fought them off while he was on the ground outside the car.Constable Marshall said Mr Brown tried to push the officers away and yell at them.Constable Marshall applied an arm bar and restrained him with his knees untilhandcuffs were put on him.[24] With diametrically opposed evidence from the witnesses, the Judge's findingwas one of credibility. The Judge made adverse credibility findings against Mr Brown,noting his recollection was hazy at points and that he was under the influence ofcannabis at the time of the offending. I find it was open to the Judge to make thosefindings. I also bear in mind the Supreme Court's comments on the limitation onappeal judges:7[38] Since it is an appeal, it is for the appellant to show that an error hasbeen made. Further, in assessing whether there has been an error, an appellatecourt must take into account any advantages a trial judge may have had.7 Sena v New Zealand Police, above n 5 (footnotes omitted).Because of this, where the challenge is to credibility findings based oncontested oral evidence, an appellate court will exercise "'customary'caution". There are two main, overlapping, reasons for this.[39] The first is that a slow-paced trial, at which the evidence emergesgradually, provides a good opportunity for evaluating the strengths andweaknesses of a case. In assessing the plausibility of what is said by thewitnesses, the judge has the advantage of being also able to form a view as towhat sort of people they are. This is an appreciable consideration despite thenow well-recognised difficulties with demeanour-based credibilityassessments.[40] The second consideration, in effect the other side of the coin to thefirst, is that appellate judges dealing with a case on the basis of a written recordof what happened at trial and the submissions of counsel are unlikely to be aswell-placed as a trial judge to determine contested questions of fact based oncontested oral evidence. For instance, what a witness means may beconveyed, at least in part, by gesture or intonation, something which will notbe apparent on the written record. More generally, the appellate process inwhich appellate judges are taken, sometimes rather selectively, to the aspectsof the evidence on which counsel rely does not replicate the advantages of atrial judge which we have just described.[25] Finally, Ms Denize submits the Judge erred in finding Mr Brown was reluctantto enter the police car. Whatever view is taken of this evidence, the two charges wereproven with the finding Mr Brown accelerated the vehicle and struggled with theofficers when he was on the ground. It was therefore, not necessary to make thisfinding on the evidence, in order to find the two charges were proven.[26] I do not uphold this ground of appeal.Second ground of appeal against conviction: bias and unfairness[27] Ms Denize submits that the Judge's interjections in cross-examination gave ageneral impression of bias. She points to several points in the transcript where theJudge asked his own questions of both the prosecution and defence witnesses.[28] A judge is empowered to ask any question of a witness "that, in the opinion ofthe judge, justice requires".8 In determining whether to exercise the discretion a judgeshould take into account the defendant's right to a fair trial, the need to let counselpursue their examination and cross-examination of witnesses and the possibility thatjudicial questioning could cut across a defence which a defendant wishes to rely on8 Evidence Act 2006, s 100.but which may not be apparent to the judge.9 The Court of Appeal's comments inTahere v R are instructive in this regard:10[36] a Judge may not intervene so as to cause a reasonable observer tothink the court partial as between the parties. Interventions may convey thatappearance where they indicate that the Judge has become an advocate, or thatthe evidence for a party on a controversial point ought to be believed, or not.Nor should interventions detract from the party's orderly presentation of itscase or prevent an accused from offering an account in his or her own way inthe witness box. A judge who intervenes frequently or at length must take careto avoid conveying the wrong impression, but the number of interventionsmatters less than their impact on the parties' cases and any impression theyconvey to the reasonable observer about the judge's attitude toward theparties.[29] The Court of Appeal has held that there must be more latitude afforded tojudges in choosing to intervene in a judge-alone trial as "such a Judge wants to becertain of the facts before coming to a decision on guilty or otherwise".11[30] But particular caution is required when a judge questions a defendant who haselected to give evidence in a criminal trial.12 Overall, the question is whether theconduct of the judge (in either failing to intervene or intervening excessively)interfered with the right of the defendant to a fair trial or gave rise to a reasonableapprehension of bias.13[31] I do not consider the Judge's questioning gave an impression of bias. Thequestions were directed at clarifying the witnesses' accounts of the evidence. Forexample, the Judge asked Constable Marshall further questions as to the contactbetween Mr Brown's car and Constable Marshall's car:Q. Let me clarify this point and up to this point. His vehicle had becomestationary with a car parked close behind it?A. Yes, that's right, Sir.9 M v R [2015] NZCA 183 at [33].10 Tahere v R [2013] NZCA 86 at [31] (footnotes omitted).11 EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA) at 149 per Cooke P, citingWilson v Collector of Customs HC Auckland, M 604/79, 28 June 1979, cited most recently in ChiefExecutive of Ministry of Social Development v L [2018] NZHC 2528.12 R v Molioo [2008] NZCA 333, Holland v R [2010] NZCA 279; Beckham v R [2012] NZCA 290;and Tahere v R, above n 10.13 Adams at TP25.06; and Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216, at [84]–[86].Q. You angled across the front of him?A. Yes, sir.Q. So that your left front panel was in the way of his right front panel?A. Yes, sir.Q. Were those two panels in contact with each other at the time youstopped your car?A. No, Sir.Q. What distance between you would there have been do you think?A. Um, 10 centimetres, Sir. It was small, if that.Q. If that?A. Yep.Q. 10 centimetres. The photographs depict the two vehicles apparentlyin contact.A. Yes, sir.Q. How did that come about?A. From the defendant driving into my vehicle, Sir.[32] This line of questioning relates to issues that had been already covered inConstable Marshall's evidence in chief. It is evident the Judge was seeking to clarifythe witness' account of what happened. On another occasion, the Judge asked a followup question to clarify the witness's day-to-day experience:COUNSEL:Q. In your day-to-day duties as a constable, you would not usually usepepper spray when you are dealing with offenders, would that becorrect?A. No.THE COURT:Q. Constable, how often have you deployed pepper spray this year?A. I don't believe I have this year, Sir.Q. How many days have you been on duty this year approximately?A. Monday to Friday every week, give or take a few days.[33] The only area where there might be some apprehension of bias is during MsDenize's cross-examination of Constable Palmer. Ms Denize pursued a line ofquestioning about the Constables' restraint of Mr Brown after he was pulled from thecar:Q. With that number of police officers involved smashing a window of acar, pepper spraying the driver, putting him on the ground and hand-cuffing him there was tension involved, would you agree with that?A. Yes I'm not too sure what you mean by tension. He was probablytense, we were probably tense, you know.Q. It wasn't a relaxed situation.A. No, it wasn't relaxed, no.THE COURT:Q. It was a situation that presented some policing imperatives I wouldhave thought.A. Sure.Q. Would that be fair to say?A. Yes.Q. That you had to act resolutely?A. Yes.Q. And quickly?A. It would have been a situation if he stopped his car and got out of hiscar with his hands up and, you know.Q. Or if he had been pulled over for a driver licence check?[34] This passage does give the appearance that the Judge believed the officers hadacted reasonably in their response to Mr Brown. However, overall I do not considerthere was any inappropriate questioning of the Police Officer or questioning that gavean impression of bias, particularly following the answers elicited in cross-examination.[35] There was a further matter raised in relation to the Judge's questioning of MrBrown himself, to which Ms Denize took objection. At one point there was animateddiscussion as to whether Mr Brown was hit by the officers after he had been pulledfrom the car. There was questioning by the Judge of Mr Brown's description that hewas "bashed":COUNSEL:Q. They said you were kicking out at them?A. No.Q. Well, you weren't complying, you just didn't put your hands behindyour back and said hand-cuff me, did you?A. They chucked me on the ground and like forced me to, they, I don'tknow.Q. Your words were "They were bashing me".A. They were.Q. I put it to you they were restraining you trying to get the hand-cuffson.A. This is far out, I got scars on my head and shit and I have bruises onmy ribs, obviously he's bashed me. Obviously, he's done something.Q. Well, again, I put it to you if you were getting bashed like you say andbashed is quite an emotive word, that you would have more injuriesthan what is in your photograph.A. So, is that not a bash? Is that not a bash?THE COURT:Q. No, well, just tell me this. From the time you were stood up with yourhands cuffed behind you was there any more bashing after that?A. After I was stood up?Q. After you were stood up and got your hands behind you and you'rewalking to the police car.A. No.Q. No more bashing.A. No. It was while I was on the ground and when I was in the car.Q. You weren't bashed at the police station?A. No.[36] I consider that this passage shows the Judge clarifying with Mr Brown whetherhe was hit by the Police after he was handcuffed. Overall, I do not consider areasonable person would impute bias from the Judge's questioning or that amiscarriage of justice occurred. Ms Denize relied on the Court of Appeal's judgmentin Kane v R, to submit that the Judge's questioning of the defendant here amounted toa miscarriage of justice.14 The facts of that case were different.[37] First, the questioning in Kane was in the context of a jury trial. This was aJudge alone trial, and the Judge is the finder of fact. Second, the Judge in Kane wentbeyond asking questions of clarification. It was accepted that his questions amountedto cross-examination of the witness. At several points in Kane, the Judge's disbeliefof the witness is made very apparent, and those passages are highlighted in thedecision.15 Here, I do not consider the Judge's questioning of the witness was in thenature of cross-examination. He adopted the defendant's robust terminology by theuse of the defendant's word "bash" and attempted to clarify with him when hemaintained he was hit.[38] Ms Denize further submits the Judge's interventions had a "chilling effect" onthe ability of counsel to put the appellant's case to the prosecution witnesses. She saysthe Judge's questioning prevented counsel from questioning the officers about the lackof skid marks on the photos on the basis the appellant would not be calling a trafficexpert and denied her the opportunity "to properly highlight inconsistencies with theProsecution witnesses' evidence and the photos" in the exhibit.[39] In the passage referred to by Ms Denize, it is correct that the Judge curbed MsDenize's questioning of the witnesses on the lack of skid-marks in the photographbecause the questioning sought opinion evidence, for which the witnesses were notqualified. A witness may only state an opinion if that opinion is necessary to enablethe witness to communicate what they saw or heard.16 Ms Denize contends theiranswers did not require technical expertise but related specifically to their account asto what they say they saw. I am unable to uphold this submission. To permit Ms14 Kane v R [2019] NZCA 328.15 At [12].16 Evidence Act 2006, ss 24–25.Denize to ask these witnesses why the photographs did not evidence any skid markson the ground was to invite speculation. The witnesses' attempt to explain, withoutexpertise in photographs, would inevitably result in inadmissible opinion evidence,which the Judge would have had to put aside.[40] Finally, Ms Denize submits that no allowances were made for the appellant'syouth. The judge-alone trial was Mr Brown's first trial and it was submitted there was"no accommodation made for the appellant's youth". Ms Denize referred to theInternational Convention on the Rights of the Child, but did not address whatallowances ought to have been made at the hearing. Although Ms Denize referred tothe Judge's questioning again in this context, I do not consider any miscarriage ofjustice arose from the Judge's questioning, as Mr Brown was forthright in hisresponses to the Judge's questions and there were no matters raised before me todemonstrate that Mr Brown was under duress or disadvantaged in some material way.[41] This ground of appeal is also dismissed.Section 106 sentence appealDistrict Court decision[42] After a few preliminary comments as to case management, the Judge notedcounsel for Mr Brown had provided material related to policy considerations forcriminal procedure on 17 year olds and general research on adolescent development.17The Judge explained this material did not take on authoritative proportions in thecontext of the test following a s 106 application. The central issue, regardless of thatmaterial, was whether the consequences of the conviction entirely outweighed theculpability of the offending.18[43] Turning to as assessment of the gravity of the offending, the Judge noted theoffending took place in the context of a highly dangerous and lengthy car chase. Heconcluded "[t]his was a moderately serious incident of resistance arising out of a very17 Section 106 decision, above n 2, at [6].18 At [7].serious incident of driving fault and wilful driving disobedience and it is not to beminimised". 19[44] As to the consequences of a conviction, the Judge observed there was theproposition of a general stigma but "that of course depends on the nature of theoffence these particular offences of resisting constables while executing their dutyare at the bottom of the criminal code".20 There were no other specific consequencespointed to.[45] The Judge concluded that, overall, "the whole of his behaviour seen in contextdoes justify a criminal record" and he was not satisfied the threshold for discharge wasmet.21Approach to appeal[46] The appeal against the decision declining the s 106 application is brought underss 231 and 248 of the Criminal Procedure Act 2011. An appeal against the refusal togrant a discharge without conviction is a composite appeal against conviction andsentence.22 The basis for determining an appeal against a refusal to grant a dischargewithout conviction is whether a miscarriage of justice has occurred:23(a) by virtue of a material error by the sentencing judge in entering aconviction; or(b) as a result of an error by the judge in applying the principles ofdischarging an offender without conviction under s 107 of the Act.[47] As stated by the Court of Appeal in R v Hughes, s 107 "provides a gatewaythrough which any discharge without conviction must pass".24 The Court noted thatsuch an appeal is not an appeal against the discretion of the Court:2519 Section 106 decision, above n 2, at [10].20 At [7].21 At [14]–[15].22 Jackson v R [2016] NZCA 627 at [6]-[16].23 At [12].24 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].25 At [11].[11] The decision as to whether the test under s 107 has been met is not amatter of discretion. It is a matter of fact requiring judicial assessment, whichcan be subject to appeal on normal appellate principles ... The discretionarypower of the court to discharge without conviction under s 106 arises andexists only if the court is satisfied that the s 107 threshold has been met.[48] The approach to be adopted by an appeal court in relation to s 107 has beensummarised as:26[28] An appeal against a refusal to grant a discharge without conviction is byway 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 confirmedthe application of an Austin, Nichols approach in criminal appeals where thedecision 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 cometo its own view of the merits; the weight the appellate court gives to theoriginal decision is a matter of judgment; and that deference to the assessmentof the original decision-maker is not necessary, even where the assessmentrequires a value judgment. If the appellate court considers that the originaldecision is wrong, it must act on that opinion.Relevant law[49] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, the court "may discharge theoffender without conviction, unless by any enactment applicable to the offence thecourt is required to impose a minimum sentence". The application of s 106 is guidedby s 107:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[50] More recently, the Court of Appeal, speaking of the s 107 test, said:27[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;26 Denden v Police [2014] NZHC 1814 (citations omitted).27 Prasad v R [2018] NZCA 537 (citations omitted).(b) identification of the direct and indirect consequences of conviction;and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.Analysis[51] Ms Denize submits the Judge erred in failing to consider several mitigatingfactors. She notes the Judge ought to have considered Mr Brown's personalcircumstances. She cites Mr Brown's youth, his relatively unstable home life, the factboth his parents have criminal convictions and his father has drug and alcohol issues.Mr Brown left school at 14 and has smoked cannabis regularly since the age of 14.[52] The Judge did not explicitly consider Mr Brown's youth or those personalcircumstances when assessing the gravity of the offending. This was an error — inassessing a discharge without conviction application the first step is for the court toassess the gravity of the offending. In doing so the judge must take into account allaggravating and mitigating factors of the offending and the offender.28[53] I consider the District Court Judge erred in assessing the gravity of theoffending as moderately serious. Leaving aside the mitigating factors for one moment,the nature of the offending is at the most serious end of the scale for this kind ofoffending. The attempts to resist were continuous, despite verbal warnings andattempts on the part of the officer to control Mr Brown. The broader context of theoffending cannot be ignored. Mr Brown's resistance followed a lengthy, dangerouscar chase at high speeds, under the influence of cannabis. Measured against that, Iaccept that his youth and difficult personal circumstances take the nature of theoffending to a moderate to low level.[54] Turning to a consideration of the consequences of a conviction, Ms Denizesubmits the charge of resisting police carries a stigma and is likely to have a28 Prasad v R, above n 27, at [11].detrimental effect generally on his future dealings with police and future employment.She does not put forward any specific consequences of a conviction.[55] Overall, even assessing the seriousness of the offending as moderate to low, Ido not consider the consequences of a conviction are "all out of proportion" to thegravity of the offence. They are no more than the ordinary consequences of aconviction, in fact, the consequences Mr Brown will already be facing as a result ofhis other convictions for the same set of offending.[56] In the circumstances I do not consider this warrants the exercise of the Court'sdiscretion to grant a discharge without conviction.[57] I dismiss the appeal.Cull JSolicitors:Elvidge & Partners, Napier for the Respondent