HINTZ v NEW ZEALAND POLICE [2019] NZHC 2805

HINTZ v NEW ZEALAND POLICE [2019] NZHC 2805 [31 October 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2019-412-000010[2019] NZHC 2805BETWEEN JOEL NIKOLI HINTZAppellantAND NEW ZEALAND POLICERespondentHearing: 23 October 2019Appearances: G L Turkington for AppellantC Power for RespondentJudgment: 31 October 2019JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 31 October 2019 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 31 October 2019[1] On 7 November 2017, the appellant, Joel Hintz, pleaded guilty to a charge ofinjuring in circumstances that if death had occurred, he would have been guilty ofmanslaughter.1 He now appeals that conviction, seeking that his guilty plea be setaside and the charge remitted to the District Court for rehearing.1 Crimes Act 1961, s 190.[2] Mr Hintz acknowledges that an appeal against conviction after a guilty pleahas been entered will only be allowed in exceptional circumstances. However, in thiscase, despite being advised by experienced counsel, Mr Turkington submits that thecircumstances in which Mr Hintz entered his guilty plea produced a miscarriage ofjustice.2 This is because:(a) Mr Hintz was "substantially impaired" when he entered a plea of guilty;(b) he had a clear defence of self-defence to the charge;(c) he was inadequately advised of such a defence; and(d) that, at least, a discharge without conviction should have been appliedfor.A further ground was introduced in submissions and focused on at hearing, which wasthat the summary of facts was not agreed upon before the plea was entered.[3] Mr Hintz says that these factors, either individually, or in combination, gaverise to a miscarriage of justice, and warrant the appeal being allowed.Leave to appeal[4] The appeal is brought well out of time, being filed on 1 March 2019, and morethan a year after the conviction was entered and Mr Hintz sentenced. Mr Hintzexplains his delay in lodging the appeal saying that initially he did not understand therewas anything he could do. However, after newspaper coverage of his conviction andat the urging of his parents, he consulted a lawyer in June 2018. Mr Turkingtonadvised that a medical report was required for the appeal and Mr Hintz was unable tosee a psychiatrist until late January 2019 because of a shortage of qualified mentalhealth assessors. His appeal was filed as soon as reasonably practicable after thepsychiatric report was completed.2 As required by s 232(2)(c) of the Criminal Procedure Act 2011.[5] Leave is opposed by the respondent, noting that the appeal could have beenfiled at an earlier date.[6] However, as the respondent accepts, the question of whether leave should begranted depends on whether it is in the interests of justice in the particular case.3 Thatrequires consideration of the wider interests of society and the finality of decisions tobe balanced against the interests of the individual applicant. In my view, Mr Hintz hasreasonably explained the delay in filing his appeal, and no prejudice arises to therespondent in the appeal being filed out of time. In these circumstances, I consider itis proper that the appeal is considered on its merits. Accordingly, leave is granted.Facts of the offending[7] At the time of the incident which led to the charge, Mr Hintz was a 20-year-oldstudent near the end of his study towards a Bachelor of Commerce in Agriculture atLincoln University. He had travelled to Dunedin with friends to meet withLincoln University lecturers for a field trip. On the evening of Saturday 8 April 2017,he and some friends attended a student party on Queen Street in Dunedin. At the partyMr Hintz said he saw two people fighting, although the victim said he and the otherperson were simply play wrestling.[8] According to the police summary of facts, Mr Hintz approached them and,without warning, punched the victim once in the mouth with a closed fist. Mr Hintzhas disputed this version from the outset. On his account, when he saw the fight, hewent over to try and break it up and it was the victim who suddenly took a swing athim and hit him in his face. He then retaliated with a single blow on the victim'smouth. As a result of the punch, the victim received damage to his front tootheventually requiring a false tooth to be fitted.[9] Affidavits from four of Mr Hintz's friends support his account and record thatthe victim and his friends yelled abuse at Mr Hintz as he left, which he ignored.3 R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA); and R v Lee [2006] 3 NZLR 42,(2006) 22 CRNZ 568 (CA).Further threats were also sent by text to a friend of Mr Hintz from a friend of thevictim.Events following the offending[10] The victim made a statement to police on 12 April 2017 in which he claimedhe was struck without warning by a single blow from Mr Hintz.[11] On 11 July 2017, Mr Hintz was interviewed by the police at Lincoln PoliceStation. He provided a statement in which he said the victim struck him in the faceand "the adrenaline took over and I punched him back", adding that he did so inself-defence. The Lincoln police indicated to Mr Hintz that the matter was unlikely togo any further.[12] However, on 28 August 2017, Lincoln Police advised Mr Hintz that theDunedin police had issued a summons for his appearance in the Dunedin District Courton 3 October 2017. The summons provided that the charge was "injured by unlawfulact" without more.[13] Mr Hintz says this news had a profound and distressing effect on him. He hadthree exams to sit in October and November 2017. He says he became depressed,unable to sleep, missed meals and attention to his daily activities dropped off. Heplayed for the Canterbury provincial rugby team and found it hard to concentrate onthe demands of training and playing. He did not tell his parents as he did not wantthem to know he was in trouble with the police, particularly his mother, who wassitting nursing exams.[14] In September 2017 he consulted solicitors, Radich & Co., who obtained thesummary of facts and charge sheet on 27 September. Mr Hintz maintained that thesummary of facts wrongly recorded that he punched the victim first. The only otherperson the police had interviewed was the person the victim was wrestling or fightingwith, who supported the victim's account. Although the summary of facts states thatMr Hintz punched the victim "without warning" it also records Mr Hintz's explanationat the end of the document saying "the defendant stated in explanation that he believedthe two males in front of him were fighting. He attempted to separate them, and thevictim took a swing at him so he punched him once in the face with his right hand".[15] Due to late disclosure, the matter was adjourned in the District Court until20 October 2017. Mr Hintz had an exam scheduled that day. He applied for anaegrotat which was eventually granted in January 2018, but he says this contributed tohis stress over that time.[16] Mr Hintz forwarded to his lawyer a statement from a friend and witness whosupported his version of events, along with records of threatening text messages sentfrom the victim's associate.[17] On 17 October 2017, his lawyers advised that self-defence had a reasonableprospect of success and diversion was a possibility. Mr Hintz however advised thathe had previously been granted diversion in 2016 on charges arising out of his wavinga knife out a car window. There was also discussion between Mr Hintz and his lawyerabout potential negotiations to downgrade the charge to common assault.[18] Mr Hintz drove from Lincoln to Dunedin to appear in the District Court on20 October 2017. His lawyers had instructed a criminal barrister, Mrs Anne Stevensto represent him on the day.4 The matter was adjourned for one week until27 October 2017 to enable negotiations to continue. His lawyers contacted the policerequesting that the summary of facts be amended to show that he did not initiate theincident and asked if it was possible for him to be discharged without conviction andto pay reparation. The police responded saying they did not have time to reconsiderthe summary of facts before the next appearance and it was premature to indicatewhether they would oppose a discharge without conviction.[19] Mr Hintz drove from Lincoln to Dunedin on 27 October 2017. Mrs Stevensadvised him the police agreed to consider diversion and the matter was furtherremanded until 7 November 2017 so Mr Hintz could meet with police. He wasconcerned about the cost, being a student with limited income, and was advised that if4 Now Anne Stevens QC.he was granted legal aid he would not be able to choose his counsel. He chose toremain with his lawyers, rather than apply for legal aid.[20] Mr Hintz again drove from Lincoln to Dunedin on 6 November 2017 to meetwith police and discuss the option of diversion. He was alone, as his friends had examsand could not accompany him. This was the same day as another exam, which he hadto discuss with his lecturer and then sit on 7 December 2017. He met with police onthe morning of 6 November where the discussions were positive and he was advisedthat he needed to arrange to have $5,000 available in court on 7 November 2017 for areparation order.[21] However, late on the same day, the police advised Mr Hintz's lawyer thatdiversion would not be granted because he had already received diversion in 2016.Further, he was told the cost of dental treatment in Australia where the victim was nowliving was likely to be in excess of $10,000.[22] Mr Hintz says the effect on him of this last-minute change in circumstance wasoverwhelming. He felt he had lost everything. He was already fatigued as a result oflack of sleep and inattention to diet as well as ongoing exams. That evening he advisedhis lawyers by email that he was going to enter a guilty plea.[23] He appeared in court on 7 November 2017. Mrs Stevens appeared forMr Hintz again. She advised him of his options regarding a self-defence argument, orapplying for a discharge without conviction. However, Mr Hintz says he had limitedcomprehension of his options, and his focus was on resolving the proceedings asquickly and inexpensively as possible. Knowing that further arguments would takemore time and cost, Mr Hintz decided to have the matter dealt with on the day.[24] His current lawyer, Mr Turkington, says he "simply gave up", that he was"unable to consider his options" and was "a broken man".District Court hearing[25] The record of the hearing on 7 November 2017 before Judge MacDonaldindicates the Judge was concerned about some matters not being resolved and atvarious points, he suggested the case be deferred to address these issues.[26] First, the Judge suggested that the matter be remanded so that restorativejustice could be pursued, but Mrs Stevens advised the victim did not wish toparticipate. The next issue was uncertainty about whether the victim was eligible forACC to repair the damaged tooth and therefore how much Mr Hintz would be requiredto be paid by way of reparation.[27] The Judge then referred to Mr Hintz's explanation of what had occurredrecorded in the summary of facts, which was that the victim took a swing at him andenquired whether the victim accepted that. Mrs Stevens responded saying that whilethe victim did not accept that he swung at the appellant, that was the appellant'sexplanation. At that juncture, the Judge asked whether she wished him to stand thematter down, presumably to address that issue. She responded saying that she hadhoped the matter could be dealt with by way of a reparation order. However, the Judgenoted that if the figure for reparation was not sorted out, he could not deal with it thatday. On the basis that the prosecutor would try and get "some agreement on thereparation" and a copy of the victim impact statement for the Judge, the matter wasstood down to be recalled in the afternoon.[28] In the afternoon, Mrs Stevens handed up a number of references Mr Hintz hadprovided to her, confirming his good performance as a student at Lincoln Universityand various sporting and leadership roles he had held. After explaining Mr Hintz'sversion of events and discussing his good character, Mrs Stevens asked the Judge todeal with the matter by entering a conviction and making a reparation order. Shediscussed the serious implications of a conviction for Mr Hintz, particularly in termsof travelling to play rugby, to support her submission that nothing more thanconviction and reparation should be imposed. Further questions ensued about theamount of reparation and whether the victim was eligible for ACC. Given that a finalfigure for the cost of dental work would not be known until after 20 March thefollowing year, and noting that Mr Hintz was "anxious to get this matter resolved",Mrs Stevens confirmed that he was prepared to offer $10,000 in reparation which theprosecution was prepared to accept. In light of the agreement on that figure, the Judgesaid he was "prepared to sentence on that basis", although commenting "it'sunsatisfactory".[29] In sentencing Mr Hintz, the Judge noted that the summary of facts which hadbeen read out "recites your claim that the victim took a swing at you" which the police"do not accept" and noted that "it is one of those situations where I could remand thematter, so we could hear evidence on that to resolve the conflict, but I sense that neitherside wants that to happen". In any event, Mr Hintz was sentenced on the basisproposed by his lawyer in that he was convicted, ordered to pay court costs of $130.00and ordered to pay $10,000 in reparation to the victim, to be met by an immediatepayment of $5,000 and the balance within 28 days.This application[30] Mr Hintz now wishes to vacate that guilty plea. In support of his applicationhe has filed an affidavit which outlines events leading to his decision to plead guilty,along with affidavits from family members and friends which attest to his mental stateat the time of entering the plea. There are also affidavits from friends who were presentat the Dunedin party who confirm his version of events regarding the assault.[31] Mr Hintz has also consulted a psychiatrist, Dr Justin Barry-Walsh, whointerviewed him on 31 January 2019 and provided a report for the Court.Dr Barry-Walsh says it appears Mr Hintz was "driven by a wish to have the matterresolved speedily so that he could end the distress he was experiencing". He notesthat the gap in time of 15 months between Mr Hintz pleading guilty and being assessed"makes it difficult to accurately reconstruct his mental state at the time". However, heconsidered "the high level of anxiety, mood disturbance and associatedsymptomatology were substantially impairing his psychosocial function". He says "atthe time he pleaded guilty Mr Hintz's capacity to rationally and dispassionatelyconsider his situation and make decisions was substantially impaired".[32] Mr Hintz's affidavit also outlines the actual and potential consequences of theconviction. He has represented Canterbury and Wellington in rugby at a national leveland is a world champion weightlifter. He has international aspirations and wishes torepresent New Zealand at the highest level. He records his concerns about the effectof the conviction on his selection and his ability to travel to represent New Zealand.He had an offer to play rugby for a Japanese team between November 2018 andJanuary 2019, but his conviction resulted in the offer being withdrawn. He also hadto withdraw from a programme to become an adventure guide in Canada as aconviction was unacceptable for work there.Principles governing the vacation of a guilty plea[33] An application to vacate a guilty plea is dealt with as an appeal againstconviction. Section 232 of the Criminal Procedure Act 2011 provides that theHigh Court may only allow an appeal against conviction if satisfied that the trial judge"erred in his or her assessment of the evidence to such an extent that a miscarriage ofjustice has occurred", or that "a miscarriage of justice has occurred for any reason."A miscarriage of justice means any error, irregularity, or occurrence in or in relationto the trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.5 In this section, a trial includes a proceeding in which theappellant pleaded guilty.6[34] In R v Merrilees, the Court of Appeal stated:7[35] It is often the case than an offender pleads guilty reluctantly, butnevertheless does so, for various reasons. They may include the securing ofadvantages through withdrawal of other counts in an indictment, discounts onsentencing, or because a defence is seen to be futile. Later regret over theentering of a guilty plea is not the test as to whether that plea can be impugned.If a plea of guilty is made freely, after careful and proper advice fromexperienced counsel, where an offender knows what he or she is doing and ofthe likely consequences, and of the legal significance of the facts alleged bythe Crown, later retraction will only be permitted in very rare circumstances.5 Section 232(4).6 Section 232(5).7 R v Merrilees [2009] NZCA 59.[35] In R v Le Page, the Court of Appeal stated that a miscarriage of justice relatingto a guilty plea will be indicated in "at least three broad situations", to which a fourthwas added in R v Merrilees:8(a) where the appellant did not appreciate the nature of, or did not intendto plead guilty to, a particular charge;(b) where, on the admitted facts, the appellant could not in law have beenconvicted of the offence charged;(c) where the plea was induced by a ruling which embodied a wrongdecision on a question of law; and(d) where trial counsel erred in advising as to the non-availability of certaindefences or potential outcomes, or where counsel wrongly induced adecision to plead guilty under a mistaken belief or assumption that notenable defence existed or could be advanced.[36] However, as the Court of Appeal said in Whichman v R more recently:9[36] The overriding consideration [is] whether the plea has produced amiscarriage of justice. This protean juristic concept is given modest definitionin s 232(4) of the [Criminal Procedure Act 2011]. It is not to be thrust into anover-defined straightjacket. The categories of exceptional circumstancesjustifying a vacation of plea after entry of a guilty plea are neither closed norcomplete SubmissionsAppellant's submissions[37] Mr Turkington, for Mr Hintz, submits that there were a number of problemswith the circumstances of Mr Hintz's guilty plea, such that there has been amiscarriage of justice and the plea should be set aside and the matter sent back to theDistrict Court for rehearing.8 R v Le Page [2005] 2 NZLR 845 (CA) at [17]-[19]; R v Merrilees, above n 7, at [34].9 Whichman v R [2018] NZCA 519 (footnotes omitted).[38] Mr Turkington submits that Mr Hintz was substantially impaired on the day of7 November 2017 and was not in a fit state to enter a plea. Mr Hintz was undersignificant stress after diversion was declined "at the eleventh hour", the reparationfigure discussed ballooned from $5,000 to $12,000 overnight, and there wasdiscussion of the proceeding going on for months more. Exam pressure, fatigue, poordiet, lack of understanding of the court process, lack of social support and financialconcerns compounded this stress and inability to fully appreciate what was happening.[39] Mr Turkington submits that the Judge accepted Mr Hintz's guilty plea,knowing that a factual dispute had not been resolved and Mr Hintz did not accept thesummary of facts. Counsel cites Mowbray v R, where the failure of either defencecounsel or the Judge to initiate a disputed facts hearing under s 24 of the SentencingAct 2002 meant that Mr Mowbray "was arguably sentenced on an assessment ofmaterially greater culpability than was justified".10[40] Mr Turkington submits that Mr Hintz had an arguable defence of self-defence.Mr Hintz does not need to prove self-defence would inevitably succeed, or even behighly likely to succeed.11 What is required is a defence that has a realistic prospectof success, variously described as an "arguable", "tenable", "credible" or "discernible"defence.12 Four affidavits from witnesses have been filed supporting Mr Hintz'sversion of events.[41] Furthermore, he says Mr Hintz did not understand what was required for adischarge without conviction.[42] In all the circumstances, Mr Turkington submits that Mr Hintz's response tothe environment in which he found himself on 7 November 2017 went beyond thenormal distress, pressure and agitation that might be felt by an accused in his situation.He submits Mr Hintz's mental and emotional state was such that his ability to make arational decision on how to plead was substantially impaired and as such his plea10 Mowbray v R [2018] NZCA 560 at [26].11 Joshi v R [2015] NZHC 2022 at [22]-[23].12 Cooper v R [2013] NZCA 551 at [20], citing Hancock v R [2012] NZCA 292 at [31]; Keegan v R[2010] NZCA 247 at [61]; Iulio v Police HC Auckland CRI-2008-404-239, 17 February 2009 at[21]; and R v Ericson [2007] NZCA 18 at [25].cannot be said to have been made by his free choice, fully understanding the facts onwhich his plea was made and the consequences of entering that plea.Respondent's submissions[43] Mr Power, for the respondent, produces affidavits from Mr Hintz'stwo lawyers, Ms Miriam Radich of Radich & Co and Mrs Stevens, both of whom wereinvolved in representing Mr Hintz in these proceedings. Both lawyers say Mr Hintzwas advised of and understood his options relating to self-defence and a dischargewithout conviction, but his concerns in pursuing those alternative options were thetime, cost, delay, and exposure of his actions to his parents.[44] Mr Power says that the grounds relied upon by Mr Hintz do not fit neatly intoany of the four recognised categories for setting aside a conviction on a guilty plea. Itappears Mr Hintz relies on the cumulative effect of all of the circumstances to suggesta miscarriage of justice has occurred, similar to the approach taken in Leeder vChristchurch District Court.13 In that case the Court found:14The ultimate question was whether it was necessary in the interests of justiceto adopt the unusual course of allowing withdrawal of a plea of guilty, enteredin the context of a sentencing indication hearing, and by an accused who hadthe benefit of competent and experienced counsel. To answer that question inthis instance the Judge also had to go on and decide whether in justice a pleacould be allowed to stand which was entered in the face of an unfavourablesentencing indication and to the surprise of experienced counsel, when therewas a reasonably arguable defence, and when a psychiatrist was of the opinionthat Mr Leeder was suffering from a serious depressive illness with entry ofthe plea being behaviour consistent with that illness. To my mind the judgmentdoes not demonstrate that there was a consideration of the cumulative effectof these factors.[45] However, Mr Power rejects the submission that Mr Hintz's ability to make arational decision on how to plead was substantially impaired, saying it is problematicgiven Mr Hintz's approach to the proceedings seems consistent from the outset. Hispriority was to deal with the proceeding as quickly as possible and at low cost, withoutexposure to his parents. Mr Power submits his decision to plead guilty was onereasonably available to him and did not come as a surprise to experienced counsel.13 Leeder v Christchurch District Court [2005] NZAR 18 (HC).14 At [62].Emails from Mr Hintz to his lawyer some two weeks before he pleaded guilty indicatehis understanding that a conviction would likely affect his ability to travel and careerprospects. Mr Power recognises the stress Mr Hintz was under, but submits that hismental impairment was not at a level observed in other cases where the Court has beenprepared to set aside a guilty plea.[46] Mr Power submits that Mr Hintz was competently advised and demonstratedhis understanding of the proceedings through his discussions with his lawyers. BothMs Radich and Mrs Stevens confirm that the option of seeking a discharge withoutconviction was discussed and clearly contemplated throughout the proceedings.Mr Power also submits that Mr Hintz has not demonstrated that the consequences ofthe conviction are out of all proportion to the gravity of the offending, such that adischarge without conviction would have been appropriate.[47] In response to Mr Hintz's submission that he has an arguable defence ofself-defence, Mr Power refers the Court to Penniket v R, where the Court of Appealstated:15The existence of a defence at the time of the guilty plea, even a possibly viabledefence, is not enough to allow a change of plea. There may be defences thatcould be run, but which are put to one side because they are unlikely tosucceed, or carry other disadvantages. In the absence of material counsel error,such decisions cannot be revisited on appeal save in rare circumstances. Thesole fact that a possible defence was known to exist at the time the appellantpleaded guilty does not on its own show a miscarriage of justice.[48] Mr Power acknowledges that Mr Hintz could have pursued a self-defenceargument but does not accept that the argument had the strength asserted by counselfor Mr Hintz. Mr Power submits that rather than acting in self-defence, it is possibleto infer from evidence and affidavits that Mr Hintz was retaliating when the adrenalintook over. He submits Mr Hintz's decision to plead guilty and accept a potentiallylower sentence than he might have received if found guilty at trial was understandablein all the circumstances.15 Penniket v R [2016] NZCA 154 at [8].[49] Accordingly, Mr Power submits that Mr Hintz has failed to demonstrate that amiscarriage of justice has occurred, and that if leave is granted, the appeal should bedeclined.AnalysisWas Mr Hintz so mentally impaired when he entered a plea of guilty that his pleashould be set aside?[50] The evidence of Dr Barry-Walsh is uncontested. He observes that Mr Hintz'saccount, and the accounts provided by family and friends through affidavits, areconsistent with him being in a "highly anxious state" at the time of the court case. Hesays "this state is understandable in the context of the circumstances he was dealingwith". He notes that "despite these difficulties Mr Hintz was still able to pass hisexams indicating that his functioning wasn't grossly impaired". He says "hisdescription of wishing to resolve the matters at that time, with an intolerance tocontinuation of court process is psychologically understandable and plausible". Heconcludes that while Mr Hintz was not unfit to stand trial in terms of the CriminalProcedure (Mentally Impaired Persons) Act 2003, his capacity to act rationally anddispassionately was substantially impaired.[51] I accept that Mr Hintz was under stress at the time and that these feelings wereexacerbated by the disappointment of the option of diversion being removed at theeleventh hour, along with the significant increase in the cost of reparations.[52] However, the option to plead guilty was not discussed only in thosecircumstances. It was an option which was traversed, along with other options, rightfrom the outset. When he first consulted lawyers, his options were discussed and thenset out in an email to him of 17 October. In it, the preferred option of defending thecharge on the ground of self-defence was recorded. It was also recorded that theremay be the opportunity for diversion but noting that that was "unlikely" given that hehad already obtained diversion for a previous offence. He was advised that despitethere being "a decent chance of advancing a self-defence argument", there would be"time and cost involved". The other alternative was to "simply plead guilty at thisstage and to have matters dealt with by way of a plea in mitigation for sentencing".[53] The fact these options had been discussed with him was supported by theevidence that his lawyers communicated with the police to explore whether they wouldsupport a discharge without conviction if he paid reparations, noting that he was"considering pleading guilty". Furthermore, on 25 October, Mr Hintz emailed hislawyers saying "I'm thinking pleading guilty [sic] and just hoping like hell the Judgewill take it easy on me". He noted "if I was to have this on my record, what would itmean for travel? (I realise America and Canada are probably off the cards)". On thenight of 6 November, he confirmed to his instructing solicitors that he was "going toplead guilty".[54] Thus, while there is no doubt that Mr Hintz was in an anxious and stressedstate by the time of his last court appearance on 7 November 2017, the various optionsand their advantages and disadvantages had been traversed over the three weeksleading to that appearance. The option to plead guilty was not, as in Leeder, asurprising decision made in the heat of the moment, but rather, was an option that hadbeen discussed right from the outset.[55] Mr Hintz is an intelligent young man, as demonstrated by his academic record,and I consider he did understand the advantages and disadvantages of the options beingproposed over this period. For this reason, opting to plead guilty under the increasedstress which Mr Hintz felt following the advice that diversion would not be available,was insufficient to render the ensuing conviction a miscarriage of justice.Did he appreciate the availability of the self-defence option and the option to seek adischarge without conviction?[56] As is evident from the discussion above, Mr Hintz's lawyers explained boththe option of defending the charge on the ground of self-defence and of seeking adischarge without conviction. As Ms Radich says in her affidavit:We both agreed that, on the face of it, there was a reasonable basis for theappellant to advance a defence of self-defence. We confirmed this advice inwriting to the appellant. The appellant was interested in considering thisfurther and advised us that he could provide witness statements. We receivedone witness statement from a friend of the appellant and some text messages.[57] However, she goes on to say that "we advised the appellant that there wouldbe time and cost involved with defending the charges". The appellant was concernedabout time, cost, delay and exposure of his actions to his parents. He also wanted tobe able to go on a planned holiday overseas with his family with the matter behindhim. Thus, although he was advised of the defence of self-defence, both on the phoneand in writing, and he provided some corroborating evidence in relation to theidentified defence, in the end he did not want to incur the cost of pursuing this avenue,in favour of concluding the matter quickly.[58] In terms of a discharge without conviction, Ms Radich says it, too, wasconsidered and her firm sought the support of the police to that outcome which wasnot forthcoming.[59] Ms Stevens also explained to Mr Hintz that one of the options was to seek adischarge without conviction. She says she "explained the legal test and that anapplication, submissions and a supporting affidavit are required". She also explainedthe necessity for a further court appearance and the likely costs. Again, he rejectedthat option because he wanted matters finalised.[60] While Mr Hintz acknowledges that his lawyers talked about the issue ofself-defence and about a discharge without conviction, he said in evidence "I didn'tactually understand what a discharge without conviction was". That said, he agreedhe understood that a discharge without conviction could be given because he wasaware of the Losi Filipo case.16 He also appreciated that a conviction would haveconsequences for his rugby career having referred to that in an email to his lawyers.The option had been discussed with him in sufficient detail for his lawyer to makeenquiries of the police as to whether they would support that option.[61] He also acknowledges that he discussed that option with Mrs Stevens, althoughhe says "I didn't understand what an actual discharge without conviction was until thedate of my last court hearing".16 A case involving a young Wellington rugby player whose discharge without conviction on assaultcharges obtained some media profile in mid-2016, but which was overturned on appeal in ajudgment dated 27 October 2016 (Police v Filipo [2016] NZHC 2573).[62] I am satisfied from the evidence that, despite Mr Hintz's statements to thecontrary, he had a reasonable understanding of what a discharge without convictionwas. He also undersood that the only route to avoiding conviction was either diversion(which he knew could be rejected because he had already received diversion), orpleading guilty and applying for a discharge without conviction, which Mrs Stevenstold him would involve a delay and further affidavits. In light of that, he chose toplead guilty hoping to get a sentence of reparation payments alone. Indeed, inevidence he acknowledged that "obviously I'd been given options" and thatMrs Stevens told him that a discharge without conviction would cost "more time, moremoney, [and he would] have to come back". His response was "let's just get this done,and I'll deal with the consequences, and let's just hope like hell the Judge takes it easyon me".[63] I am satisfied that Mr Hintz was adequately advised on his legal options bothby his instructing lawyers and by Mrs Stevens. However, he chose not to pursue eitheroption to stem further cost, prevent the need to return to Dunedin yet again, and toavoid the risk that such a course may fail in any event. This ground does not warrantsetting aside the conviction on the basis there was a miscarriage of justice.What impact did the failure to have the summary of facts amended have?[64] The last, and, by the hearing, primary ground on which Mr Turkington reliedto say there had been a miscarriage of justice was the argument that the summary offacts was not agreed.[65] During the negotiation phase, Mr Hintz's lawyers asked for the summary offacts to be amended so that the paragraph which said that Mr Hintz punched the victimonce in the mouth without warning would instead read:The defendant thought the victim and his friends were fighting and tried toseparate them. The victim swung at the defendant. The defendant retaliatedand punched the victim once in the mouth [66] That change meant that the appellant's explanation contained at the end of thesummary of facts could be deleted as it was now reflected in the facts as alleged.[67] However, the police response was that they did not have time to have thedisputed facts checked before the next appearance. No further steps were taken toamend the summary of facts.[68] Mrs Stevens had been careful to tell Mr Hintz's lawyers that she wanted anyissues over the summary of facts to be sorted before she entered a plea. Mr Hintzaccepted that he knew that the police had not agreed to change the summary of facts,but then suggested that he did not understand that when pleading guilty, it would be tothe unamended summary of facts saying, "I didn't understand the process of that".[69] The tension between the police summary of facts and Mr Hintz's explanationtroubled the District Court Judge, who offered to remand the matter so that evidencecould be heard to resolve that conflict, but as "neither side wants that to happen", heproceeded to sentence on the basis agreed between the prosecutor and Mrs Stevens.[70] Mr Turkington's argument on this issue is that s 24(2) of the Sentencing Act2002 requires any factual dispute in the summary of facts to be resolved prior tosentencing. It states:If a fact that is relevant to the determination of a sentence or other dispositionof the case is asserted by one party and disputed by the other,-(a) the court must indicate to the parties the weight that it wouldbe likely to attach to the disputed fact if it were found to exist,and its significance to the sentence or other disposition of thecase:[71] Similarly, r 5A.1 of the Criminal Procedure Rules 2012 provides that at thetime a guilty plea is entered, the prosecution and defence must resolve any disputeover the summary of facts and, if it is not resolved, seek an indication in accordancewith s 24 of the Sentencing Act.[72] Mr Turkington submitted that the Judge imposed a conviction in the knowledgethat the conflict had not been resolved and that Mr Hintz did not accept the policesummary of facts against him.[73] However, when he put that proposition to Mrs Stevens, she disagreed. Sheacknowledged that efforts had been made to have the summary amended, but thatMr Hintz was aware these were unsuccessful and he understood that the unamendedsummary was what he was pleading guilty to. In respect of Mr Hintz's explanationwhich was recorded in the summary of facts, Mrs Stevens said it was simply "hisexplanation to the police", noting that "defendants' explanations are often inconsistent with the actual elements of the charge". She noted that Mr Hintz was not advancingself-defence and she had explained to him that the statement he made to the policewhere he said that "the adrenalin then took over and I punched him back" did not assisthim in that regard.[74] In short, he knew there had been no amendment to the summary of facts whenhe pleaded guilty to them and he admitted the facts as the police set them out.[75] In my view, the summary of facts was problematic. While it is, as Mrs Stevenssays, common for the summary of facts to record the defendant's explanation given topolice at the time, that may be inconsistent with the facts as advanced by the policefor the purpose of the charge. It is then unclear what relevance the defendant'sexplanation has to the factual matrix for sentencing.[76] However, I do not consider the inconsistency in this case has a bearing on theconviction. On either scenario, Mr Hintz accepts he hit the victim; the only query iswhether the punch was unprovoked or provoked. Mr Hintz's explanation included inthe summary of facts does not, as Mr Turkington suggests, effectively deny the chargebecause he hit in self-defence. In the circumstances where he had agreed to pleadguilty to an assault, the only ambiguity was as to whether the punch was provoked orunprovoked. That would be an issue on a sentence appeal, where the sentence imposeddepended on which version of facts prevailed, and is the risk that s 24 is designed toaddress. However, here the sentence was imposed on the basis sought by Mrs Stevensand appeared not to turn on whether the attack was provoked or unprovoked.[77] In these circumstances, I do not see how the ambiguity as to culpability canundermine the conviction or lead to the conclusion that there was a miscarriage ofjustice. Mr Hintz acknowledged that he was responsible for an assault and he choseto plead guilty to that, rather than defer matters and incur further costs by taking anyfurther steps, including a disputed facts hearing. Importantly, no issue is taken withthe sentence imposed as it is what was sought by his lawyer, which underscores thefact that a disputed facts hearing was not required. The failure to have one thereforedoes not affect the conviction.Is there a miscarriage of justice when looked at in the round?[78] Although I have addressed each ground of appeal individually, I also now lookat the matter in the round to consider whether the combination of circumstances wassuch that a miscarriage of justice occurred.[79] In my view, that threshold is not met. I am satisfied that Mr Hintz was awareof his options, both from his instructing lawyers and from Mrs Stevens. While he wasno doubt feeling under pressure and anxious, and those feelings will have influencedhis decision to plead guilty, he did so knowing that he could:(a) seek a discharge without conviction; or(b) defend the charge based on self-defence.He was also aware of the possible downsides of a conviction, being an effect on hisability to travel and career prospects.[80] It is understandable that now he has the support of family members and hasrevisited the option of defending the charge, he regrets the decision he made.However, regret over the choice made is insufficient to reach the threshold for settingaside a conviction. Thus, even considering the cumulative effect of the factors whichled to Mr Hintz's decision, I am not satisfied that a miscarriage of justice has occurred.[81] Accordingly, the appeal is dismissed.Solicitors:Gary Turkington, Barrister, WellingtonRPB Law, Dunedin