HAMMOND v POLICE [2019] NZHC 2452

HAMMOND v POLICE [2019] NZHC 2452 [27 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000212[2019] NZHC 2452BETWEEN MICHAEL HAMMONDAppellantAND NEW ZEALAND POLICERespondentHearing: 3 September 2019Appearances: T Simmonds for the AppellantJ Kang for the RespondentJudgment: 27 September 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 27 September 2019 at 2.30 pmRegistrar/Deputy RegistrarCounsel/Solicitors:Todd Simmonds, Barrister, AucklandMeredith Connell, Auckland[1] On 15 May 2019, Mr Hammond, a police officer, was convicted and sentencedin the Auckland District Court before Judge Thomas to a $500 fine on one charge ofcommon assault.1 Mr Hammond had pleaded guilty to the charge at an earlyopportunity and applied for a discharge without conviction.[2] He appeals the decision to decline his application for a discharge.Facts[3] The summary of facts records that Constable Hammond was a serving policeofficer acting in the execution of his duties on 17 August 2018, assisting with thepursuit of a fleeing vehicle. The road spikes deployed by him eventually brought thefleeing vehicle to a halt.[4] The victim was a 14-year-old boy who was one of the occupants in the fleeingvehicle. While the victim was arrested and being searched by a fellow officer,Mr Hammond took hold of the victim's rat's tail2 and pulled it back with sufficientforce to jerk his head back. With a Police-issue seatbelt cutter, he cut off the rat's tail.The victim suffered no bodily injury. When spoken to, Mr Hammond admitted cuttingthe hair and said, while searching the victim, he saw cords and cut his rat's tail withoutthinking.Relevant law[5] Section 106 of the Sentencing Act 2002 provides that the Court may dischargean offender without conviction following a plea or finding of guilt. Under s 107, thediscretion is to be exercised only if "the court is satisfied that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffending".1 Crimes Act 1961, s 196. Maximum penalty of one year's imprisonment.2 A rat's tail is a colloquial term for a length of hair that is designed to hang down the back of theneck and back.[6] The disproportionality assessment is to be made according to the three-stepapproach set out by the Court of Appeal in Z (CA447/2012) v R:3(a) the Judge must identify the gravity of the offending, including theaggravating and mitigating factors of the offending and the offender;(b) the Judge must identify the direct and indirect consequences for theoffender; and(c) the Judge must consider whether those consequences are out of allproportion to the gravity of the offending.[7] In considering whether a claimed consequence is out of all proportion to theoffending, it is not necessary for the Court to be satisfied that the consequence isinevitable.4 However, the likelihood (or unlikelihood) of the consequence occurringwill be an important factor, as discussed by the Court in Iosefa v Police:5[34] It is not necessary for the court to be satisfied that the identified directand indirect consequences would inevitably or probably occur. It is sufficientif the Court is satisfied there is a real and appreciable risk that suchconsequences would occur.[35] However, the nature and seriousness of the consequences and thatdegree of likelihood of their occurring will be material to the Court'sassessment of whether those consequences would be out of all proportion tothe gravity of the offence. In other words, the higher the likelihood and themore serious the consequences the more likely it is that the statutory test canbe satisfied.[8] That approach was recently affirmed by the Court of Appeal in Maraj v Police,where the Court found that "the likelihood of a risk materialising is a legitimateconsideration in the proportionality assessment".6[9] As I held in Holloway v Police (cited by the Crown), s 107 requires anevaluative assessment of the threshold criteria, as opposed to the exercise of a3 Z (CA447/2012) v R [2012] NZCA 599 at [27] and [28]. See also A (CA747/10) v R [2011]NZCA 328 at [22].4 Iosefa v Police HC Christchurch CIV-2004-409-64, 21 April 2005 at [34].5 At [34] and [35].6 Maraj v Police [2016] NZCA 279 at [30].discretion.7 An appeal against the proportionality test under s 107 proceeds thereforeon the Austin, Nichols approach: if an appellant can show that the first-instancedecision was wrong, he or she is entitled to a fresh assessment by the appellate court.8Gravity of the offending[10] Mr Simmonds, for Mr Hammond submits the Judge had regard to an irrelevantconsideration, which he describes as disputed, irrelevant, and highly prejudicialevidence that was put forward in the Police sentencing submissions, which led to thegravity of offending being overstated by the Judge.[11] Without criticism of the learned Judge, I agree. This arose because, instead ofrelying on the summary of facts, to which he had pleaded guilty, Mr Hammond soughtto paint a picture of the offending in a somewhat more favourable light. Theprosecutor replied by filing a number of statements suggesting the opposite. Thosestatements strayed materially further from the summary of facts than the appellant's.I do not go into the detail on either side. The material put forward by the prosecutorwas strongly disputed by the defence. Judge Thomas made no ruling as to whether itwould be allowed in and he was careful to limit his comments in his judgment. But Ihave no doubt he would have been influenced in labelling the offending as serious, bythe additional "evidence". I also note statements in the judgment such as, "this waseffectively for your own entertainment or gratification in some way", two referencesto Mr Hammond's action as "gratuitous", and one to it being "selfish".[12] Mr Simmonds argues, and the Crown fairly accepts, that the sentencing shouldbe on the basis of the summary of facts and not on the basis of statements on each sidewhich are disputed and not part of the summary to which Mr Hammond pleaded guilty.I treat any statements falling outside the summary of facts as inadmissible.[13] On that basis, recognising the seriousness of the offending coming from anofficer of the law and the consequential damage to the rule of law, but also that this7 Holloway v Police [2017] NZHC 2562 at [19].8 Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co v Stichting Lodestar [2007]NZSC 103, [2008] 2 NZLR 141 at [16].was intentional, but one-off offending, I would categorise it as moderate-leveloffending.[14] To be clear, I would categorise the offending as being at a low level, but for thevery material additional element of Mr Hammond's being a member of the Police.The charge of common assault is, as the Judge said, at the lower end of violent offencesand the victim suffered no physical harm. However, offending undertaken by a swornpolice officer on a member of the public in the execution of that police officer's dutyis a significant aggravating factor.[15] Taking account of Mr Hammond's early guilty plea, lack of previousconvictions, prior good character, and remorse, I consider the overall gravity ofoffending reduces from moderate to low. On the material before me (including a 2018email from the Superintendent of Police commending and thanking Mr Hammond),he has an outstanding record with the Police prior to this offending. Also, I considerit material that Mr Hammond is 26, which is still a relatively immature age. He hashopefully learnt a very significant lesson. He has written a letter of full apology to thevictim.[16] I therefore consider the Judge was wrong to assess the gravity of offending asmoderate and that he did have regard to an irrelevant consideration in doing so.Direct and indirect consequences of a conviction[17] The direct and indirect consequences of a conviction will vary according to thecircumstances of the offender. There needs to be a "real and appreciable" risk thatsuch consequences will occur.9[18] The appellant submits the Judge failed to acknowledge there was a real andappreciable increase in risk that the appellant would be dismissed from the Policefollowing the entry of a conviction.[19] Again, I agree.9 DC (CA47/2013) v R [2013] NZCA 255 at [43].[20] There is no question, as the Judge noted, that, conviction or no conviction, theappellant could still face dismissal from his employer, who knows about the offence.[21] However, if that risk increases materially as a consequence of a conviction, theCourt needs to take that into account. I consider the Judge did acknowledge the riskincreases (and implicitly that it increases materially), but he then dismissed the pointas "speculative".[22] This is confusing a need to prove something will happen (or as Mr Kang putit, that it is "determinative"), with being satisfied there is a real and appreciable risk,or in a case like this, a real and appreciable increase in an existing risk. I considersuch an increase in risk is established on the evidence. The appellant swore onaffidavit to that effect, and there is no contradictory evidence.Consequences not out of all proportion to the offending[23] I therefore have to determine whether the consequences of conviction wouldbe out of all proportion to the gravity of the offence.[24] I have assessed the overall gravity of offending as low, after taking into accountthe very significant mitigating features.[25] The Police will quite properly follow standard procedure and conduct anemployment investigation with full knowledge that Mr Hammond has pleaded guiltyto the offence, taking into account any other material they consider relevant, includingpresumably the statements referred to earlier to which I have not had regard.[26] However, I consider it would be out of all proportion to the low gravity ofoffending for a conviction to materially influence that decision in this case.Conclusion[27] For the reasons outlined above, the appeal is allowed. The conviction andsentence are set aside and the application for discharge without conviction granted.--------------------------------------------------Hinton J