OCTOBER v NZ POLICE [2023] NZHC 326

OCTOBER v NZ POLICE [2023] NZHC 326 [28 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000420[2023] NZHC 326BETWEEN HAL WAYNE OCTOBERAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2023Appearances: A H Waalkens KC and S Courtney for AppellantW Fotherby and J Gibson for RespondentJudgment: 28 February 2023JUDGMENT OF VENNING JAppeal against conviction and sentenceThis judgment was delivered by me on 28 February 2023 at 11.45 am.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandSandi Anderson & Partners, AucklandCounsel: A H Waalkens KC, Auckland[1] Hal October admitted assaulting a protestor at a pontoon at the Kennedy PointBoatharbour Limited's construction site. In a reserved decision delivered on 19October 2022 Judge J M Jelaš provided reasons for declining his application for adischarge under s 106 of the Sentencing Act 2002.1[2] Mr October appeals to this Court against that decision.Background[3] I take the background from the summary of facts, although as discussed below,the summary of facts is clarified in part by a video record of the incident. Mr Octoberwas the leader of an on-site team of security consultants employed by Kennedy PointBoatharbour Limited to monitor and protect the construction zone. At about 11.39 amon Wednesday, 7 July 2021, a confrontation between the security guards and protestersbroke out when several protestors climbed onto a pontoon within the constructionzone. The pontoon was surrounding the drill pipes. The victim, Michael Benzur, wasone of the protestors. Mr Benzur approached Mr October. They took a brief hold ofeach other in a short scuffle, swinging each other around. Mr Benzur then fell off thepontoon into the water. As Mr Benzur tried to climb onto the pontoon again MrOctober stepped forward and, using his right leg, kicked Mr Benzur to the right sideof his head. The kick struck Mr Benzur's cheek and neck causing him to fallbackwards into the water. He then steadied himself on the pontoon and gestured toMr October to do it again before climbing back onto the pontoon at which point hewas placed in a head lock by Mr October. As a result of the kick, Mr Benzur sustaineda sore neck. He also says he has suffered from anxiety.District Court decision[4] In dismissing Mr October's application for a discharge without conviction theJudge referred to the principles to apply.2 She then first addressed the gravity of theassault. After noting the summary of facts the Judge recorded that Mr Benzur hadaddressed the Court as to the impact of the assault on him. She then referred to Mr1 New Zealand Police v October [2022] NZDC 20516. Counsel advise the Judge subsequently finedMr October $800 and ordered him to pay reparation of $200 for damage to the victim's wetsuitand $200 for emotional harm.2 At [6].October's personal circumstances, and the references provided in his support. Shenoted that Mr October had said he was ashamed and embarrassed by the situation hefound himself in, and had subsequently completed both a conflict management courseand a six week anger and rage programme. He had also undertaken a tele-healthconsultation with a clinical neuropsychologist. However, having reviewed the videofootage of the incident the Judge concluded that the kick was deliberate and at the leastit disclosed a high degree of recklessness. She rejected any suggestion that Mr Octoberhad not appreciated his boot had connected with the victim. The Judge also rejectedsubmissions for Mr October that the victim had been obviously aggressive towards MrOctober beyond his presence on the pontoon.[5] Ultimately the Judge accepted the Police submission as to the gravity of theoffending. The Judge noted:3The speed of the kick combined with Mr October's standing position on thepontoon and the victim being in the water, made it impossible for the victimto take any evasive action to protect himself. The victim was therefore in avulnerable, non-threatening position at the time of the assault. Fortunately,the victim's physical injuries were minor – he was readily able to continuewith his protests after the assault.[6] The Judge concluded the offending was of moderate seriousness. Whileacknowledging Mr October's plea of guilty, and the steps he had taken afterwards, sheconsidered they carried less weight as this was Mr October's fifth conviction forassault.[7] The Judge then addressed the consequences of conviction.[8] At the age of 63, Mr October had pointed to two consequences. First, aconviction would jeopardise his licence and certification under the Private SecurityPersonnel and Private Investigators Act 2010 (PSPPIA). Second, convictions wouldinhibit his ability to travel overseas. The Judge accepted there was a real andappreciable risk that a conviction may well raise issues for Mr October's ability totravel and that his ability to continue working in the security industry would comeunder scrutiny. However, she was not prepared to accept the evidence of Mr Morrison,3 At [26].the CEO of New Zealand Security Association (NZSA) that revocation of MrOctober's licence was the likely outcome of a conviction. She considered theregulatory body was the appropriate body to consider that issue.[9] Standing back and looking at the matter overall the Judge did not consider theprospect of Mr October having his licence reviewed or the travel restrictions he wouldface were consequences disproportionate to the gravity of the offence. She noted MrOctober would have experienced travel restrictions in the past given his previousconvictions. While accepting his livelihood might ultimately be placed in jeopardy,that would be a result of the regulatory body's decision.[10] For those reasons she declined the application for discharge withoutconviction.Appeal points[11] In support of the appeal Mr Waalkens KC submitted the refusal was wrong inboth fact and law. Mr Waalkens submitted that the District Court Judge overstated thegravity of the offending by:(a) mischaracterising the offending to be more serious than it was;(b) minimising the mitigating factors; and(c) overstating the impact on the victim and understating his role in thealtercation.[12] Mr Waalkens characterised the offending as low level offending rather thanbeing of moderate seriousness. He submitted that, having overstated the gravity ofoffending, the District Court Judge subsequently erred in her assessment of whetherthe consequences of conviction would have been out of all proportion to the offending.Mr Waalkens submitted the Judge was wrong to consider that a discharge would usurpthe function of the regulatory authority, the Private Security Personnel LicensingAuthority (PSPLA) as that Authority is aware of the matter and will review MrOctober's actions whatever the outcome of the conviction. He submitted that, theJudge having found there was a real and appreciable risk of constraints on MrOctober's ability to travel, pursue security work overseas and on his ability to continueworking in the security industry generally, she was wrong to reject the reasonableconclusion that a conviction would, in all the circumstances, be disproportionate.Police response[13] Mr Fotherby submitted that the Judge correctly assessed the gravity of theoffending as moderate. He submitted that Mr October's actions were out of proportionto the risk posed by the victim and "the running kick was a callous and gratuitous nextstep after the protestor had been forcibly removed from the pontoon". Striking thehead was a significant aggravating factor in terms of an assault. As to the direct andindirect consequences, counsel noted that Mr October has four previous convictionsfor assault. By reference to the decision of Wylie J in Roberts v Police4 the Policesubmit that Mr October's offending was obviously and clearly relevant to anassessment of suitability to hold a licence and it would be wrong to conceal theconviction from the relevant Authority. The offending is exactly the sort of thing thePSPLA should have knowledge of.[14] Mr Fotherby took the Court through his analysis of the PSPPIA and submittedthat it was far from certain that Mr October would lose the right to practise as a securityconsultant as a result of the conviction.[15] As to overseas travel, counsel noted that Mr October had a contract to go toSouth Africa, Namibia and Tanzania, as well as Macau and China. Counsel submittedthat the consequences or effect on those contracts were speculative at present.[16] Overall, Mr Fotherby submitted that the consequences Mr October facedflowed naturally and predictably from his deliberate action and no injustice flows fromhis conviction.4 Roberts v Police (1989) 5 CRNZ 34 (HC).Analysis[17] The approach to an application for discharge is settled by Court of Appealauthority. The Judge correctly identified the principles in her judgment. The issue iswhether, on the facts of this case, she erred in her application of the principles.[18] An appeal against a refusal to discharge without conviction is an appeal againstboth conviction and sentence.5 As the appeal is under s 232(2)(b) or (c) of the CriminalProcedure Act 2011 it is for the appellant to satisfy the Court that a miscarriage ofjustice has occurred or if "for any reason" the Judge erred in applying the relevantprinciples.6 The appeal proceeds on the usual appellate principles.7[19] The first issue is whether the Judge was correct in assessing the gravity of MrOctober's actions in this case as moderately serious.[20] I consider the Judge erred in her assessment of the gravity of Mr October'sactions as moderately serious. In particular she failed to consider the full context ofthe incident and also failed to sufficiently take into account the steps taken by MrOctober after the assault.[21] While the assault did involve a kick to the head the background circumstancesof the assault are particularly relevant in this case. The background, which is apparentfrom the summary of facts but which is also given more colour by the video whichcaptured the incident and the lead-up to it, discloses provocative and aggressiveactions by a group of protestors directed towards the security officers, including MrOctober. The four security officers were outnumbered. During the incident a numberof the security officers were assaulted and two ended up being thrown and/or kickedoff the pontoon into the water. While Mr Benzur in this case was not responsible forany assault on the other security officers, he was actively involved in the incident andwas thus supporting and encouraging the other protestors. He then initiallyapproached Mr October before he and Mr October engaged in an arm wrestle,swinging each other around. Mr Benzur ended up being swung into the water.5 Jackson v R [2016] NZCA 627.6 Gaunt v Police [2017] NZCA 590 at [9].7 Doyle v R [2022] NZCA 307 at [15].Undeterred, Mr Benzur was attempting to climb back out of the water onto the pontoonto continue with his interaction with the security guards, including Mr October, whenthe assault occurred.[22] It is wrong to characterise the action of Mr October as the Police do in theirsubmission as a "running kick" to the head. On my review of the video that is notwhat occurred. While Mr October did move towards the victim and kick him, he didnot run towards him nor did he use any particular force in the kick to Mr Benzur'shead. It is obvious from Mr Benzur's immediate reaction that he was not seriouslyinjured or affected. Indeed the blow failed to dissuade him. His immediate reactionwas to gesture towards and actively goad Mr October to "do it again" beforeattempting to climb back onto the pontoon.[23] To consider the context of the assault (as disclosed by the CCTV footage) isnot to engage in a disputed fact hearing as suggested by the Police. While I agree withMr Fotherby's submission that the Judge was correct to reject Mr October's post factoanalysis of his intention at the time of the assault, the context of the assault as disclosedby the video was relevant (and indeed was considered by the Judge).[24] At [21] the Judge noted:The gravity assessment is based on the charge and the agreed summary offacts, not alternative narratives post-plea.While, as noted, the Judge is correct that the Court must proceed on the basis of thesummary of facts (and in this case, the uncontested CCTV record) the Court also hasto have regard to factors relevant to the appellant, including steps taken after theincident, and factor those into the gravity assessment. The gravity of the offence is tobe assessed by the culpability of the appellant's conduct determined on an overallassessment of the facts, rather than the nature of the charge.8[25] While noting the steps Mr October had taken, the Judge does not appear tohave factored them into the gravity assessment. Rather she dismissed them on thebasis that Mr October has previous convictions for assault. While the convictions are8 J (CA33/21) v R [2021] NZCA 690 at [36].relevant, they were all dealt with by way of fine and the last was in 2005, over 18 yearsago now.[26] While each case must be considered on its own facts the case of Northover vPolice suggests that serious assault will not necessarily always be characterised asmoderate, particularly where the defendant has taken steps to address the offending.In that case the Court accepted that in context, and having regard to the defendant'ssubsequent actions, the gravity of domestic assaults on children could be regarded asat a low level of seriousness.9 Similarly in GSM v Police,10 domestic assaults wereregarded as low to moderate.[27] The cases of Graham v Police and Singh v Police, relied on by Police, aredistinguishable.11 Graham involved much more force and resulted in serious injuriesrequiring hospitalisation. Singh involved a serious domestic assault without themitigating features of Northover v Police or GSM v Police. Relevantly in the presentcase also, Mr Benzur's physical injuries were obviously minor.[28] In the circumstances I agree with the submission for Mr October that in contextand taking account of Mr October's subsequent actions, the gravity of the offendingcan appropriately be seen as of low seriousness.[29] As to the consequences, Mr Waalkens placed less weight on the issue of MrOctober's ability to travel overseas than on the impact of a conviction on his ability towork as a security consultant.[30] The Judge noted that despite his previous convictions Mr October had beenable to travel overseas. However, as noted the convictions are historical with the lastbeing for an incident in 2005, over 18 years ago. A more recent conviction is morelikely to impact his ability to travel.[31] However, of more significance is the impact of a conviction on his ability towork.9 Northover v Police [2020] NZHC 167.10 GSM v Police [2017] NZHC 896.11 Graham v Police [[2013] NZHC 2575; and Singh v Police [2019] NZHC 417.[32] This is not a case of hiding the matter from the relevant disciplinary authority.The disciplinary authority is well aware of the incident. Mr October self-reported it.The incident also received publicity on national television. The PPSA will deal withthe matter after its internal review of Mr October's actions.[33] Mr Fotherby took some time traversing the relevant provisions of the PSPPIAto support his submission that a conviction would not necessarily prevent Mr Octoberfrom working as a security consultant. He noted the Judge did not accept MrMorrison's evidence that revocation of his licence was the likely outcome.[34] Despite Mr Fotherby's analysis of the PSPPIA, as Moore J noted in GSM vPolice,12 the issue for the Court is whether the risk of loss of his licence and ability towork as a security consultant is a real and appreciable one. A conviction for assault isnoted as a ground for disqualification under the PSPPIA: s 62(f)(vii) and cancellationof licence: s 79. While it is correct that the PPSA must also be satisfied because ofthe conviction the licensee is not a suitable person to hold a licence, a convictionclearly has serious consequences. A conviction would obviously be regarded moreseriously than a discharge without conviction. In light of Mr Morrison's evidence andthe provision of the PSPPIA I accept that there is clearly a real and appreciable riskthat Mr October will lose his licence if a conviction is entered. This is not a case(which the Judge seemed to consider it was) of the Court usurping the disciplinarybodies authority. As noted, Mr October has self-reported and the PPSA will considerhis future. As a statutory ground for disqualification a conviction would beparticularly damaging to Mr October's case.[35] In the circumstances of this case, taken overall, a conviction would be out ofall proportion to the gravity of the offending.[36] I am satisfied that the discretion should be exercised in Mr October's favour.Result[37] For those reasons the appeal is allowed.12 GSM v Police, above n 10.[38] On the charge of assault Mr October is discharged without conviction. Thesentence imposed in the District Court is set aside.__________________________Venning J