JAMES v NEW ZEALAND POLICE [2022] NZHC 3061

JAMES v NEW ZEALAND POLICE [2022] NZHC 3061 [23 November 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-124[2022] NZHC 3061BETWEEN TERRY IVAN JAMESAppellantAND NEW ZEALAND POLICERespondentHearing: 22 November 2022Appearances: M Faletanoai-Evalu for AppellantL Fiennes for RespondentJudgment: 23 November 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 23 November 2022 at 9.45 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Terry James pleaded guilty to a charge of misuse of a telephone.1 Hisapplication for a discharge without conviction was declined by Judge Callaghan in theDistrict Court at Christchurch.2 Mr James was sentenced to nine months supervision.He appeals that decision seeking a discharge in this Court.Background[2] On 6 May 2021, Mr James phoned the Ministry of Justice to discuss reparationhe was owed. He became frustrated with the situation and made the followingstatements:I'm just at the point where I'm just about to go into a mosque and startshooting you know I know that sounds pretty bad, but I haven't had aholiday, I'm suffering from cancer, I've got a bad heart and I'm just about togo into a mosque and start shooting because I'm really upset So, I reallyneed to think. I need to make a public announcement here, and maybe go toa mosque and start shooting as a public announcement.[3] Mr James ended the call when advised it was being recorded. When spoken toby police he stated he wanted to bring things to a head and the public needed to knowvictims are not getting what they are owed. He acknowledged what he said was wrongand that he needed to be reprimanded.[4] Mr James swore an affidavit which was provided to the District Court. Hestated a motorcycle he purchased for $10,000 was stolen from him about three yearsago. It was part of his retirement plan because he expected its value to increase. Thebike was not recovered but the offender was convicted. Mr James received weeklyreparation payments of $39 for some five months before they abruptly stopped. Hewas informed the offender was now paying reparation to a victim of more recentoffending. He understood this to be because the Ministry thought that victim'ssituation was worse than his own. He found this upsetting as he had come to rely onthe payment.1 Telecommunications Act 2001, s 112(1).2 Police v James [2022] NZDC 15444.[5] Mr James, who is 65, explained he suffers from a heart condition, bowelcancer, is legally blind and has suffered a stroke in the past. Alongside and as aconsequence of his physical health, Mr James has suffered from depression andanxiety. He said he has repeatedly been scheduled for surgery to remove the cancerbut has been informed there is a risk of him dying on the operating table and so hedelays the surgery. Understandably Mr James has experienced long periods of fixatingon his conditions. He said his quality of life has suffered and he struggles to completeday to day tasks.[6] About two months before his offending Mr James was the victim of an assaultat his home. He has since suffered from post-traumatic stress disorder, evidenced byflashbacks and vivid memories of the attack.[7] Mr James said he is aware what he said on the phone call was completelyinappropriate. He apologised for the stress his words must have caused. He explainedhe was at his wits end while under pressure due to his health and depression. Hewanted to say the most shocking thing that came to his mind and draw attention towhat he felt was an injustice. He again apologised. He did not make any effort todeny his actions. When arrested and taken to the cells, his cane and protective glasseswere taken from him. He understood this was something the police had to do butexplained he was helpless in an unfamiliar environment having to crouch over himselfto protect his eyes from fluorescent lights. He said he has experienced anxiety anddepression as a result of the court process.District Court decision[8] Judge Callaghan observed Mr James had not offended since 2013 and none ofhis previous convictions were relevant to the present charge. The Judge acceptedMr James was remorseful, did not intend to carry out his threats and was underextreme pressure due to his medical conditions and the non-payment of reparation.However, the Judge observed the threat was serious, alarming and inexcusableespecially considering the Christchurch mosque terror attack. The Judge noted thevictim had friends who were affected by the terror attack and that she was badlyaffected by the threats. The Judge considered public denunciation had to weigh in theassessment of the seriousness of the offending. The Judge assessed the offending as"not very serious but not less than serious".3 Later he observed this was "aconviction for an offence at a lower level in the criminal hierarchy".4[9] Turning to the consequences of conviction, the Judge accepted Mr James'health issues were matters he had to take into account. He noted there was somesuggestion Mr James may be unable to access residential care if convicted but theJudge did not expect that risk to eventuate. The Judge did not think a conviction formisuse of a telephone would generally stand in the way of one's general life in thecommunity. Mr James had not made out any real and discernible consequences ofconviction that would outweigh the seriousness of the offending, so the discharge wasdeclined.[10] The Judge considered submissions to the effect a sentence of supervision maybe difficult for Mr James due to his health issues but thought community correctionscould take into account his limitations. The Judge thought the only proposedcondition, to attend and complete any counselling or intervention to address offendingbehaviour, was appropriate. The Judge expressed sympathy for Mr James but thoughthe needed some help and guidance so imposed the sentence of supervision.Principles on appeal[11] A court may grant a discharge without conviction only if satisfied the directand indirect consequences of a conviction would be out of all proportion to the gravityof the offence.5 A series of steps are required to be undertaken when determiningwhether to grant a discharge without conviction:(a) first, the gravity of the offending must be assessed by considering theaggravating and mitigating circumstances of the offending andoffender;3 At [8].4 At [14].5 Sentencing Act 2002, s 107.(b) second, the direct and indirect consequences of a conviction must beidentified and a determination made as to whether they are out of allproportion to the gravity of the offending; and(c) finally, if the court is satisfied the statutory test is made out, it mustdecide whether to exercise its discretion to grant a discharge to thedefendant.[12] Appeals against a finding that the consequences of a conviction are notdisproportionate to the gravity of the offending proceed by way of rehearing. ThisCourt is required to make its own assessment of whether the statutory criteria has beenestablished.6 If I conclude a discharge without conviction should have been granted,then there will have been a material error by the sentencing Judge and a miscarriageof justice, in which case the appeal must be allowed.7SubmissionsAppellant's submissions[13] Mr Faletanoai-Evalu submitted the Court erred in assessing the gravity of theoffending as serious and failed to take into account Mr James' personal mitigatingfactors. He submitted the Judge erred in finding Mr James' personal factors could be"reflected in a merciful sentence". Mr Faletanoai-Evalu contended the Judge did nottake these factors into account in assessing gravity and, as a result, incorrectly assessedthe gravity of the offending as other than low.[14] Mr Faletanoai-Evalu acknowledged there was no direct evidence a convictionwould affect Mr James' mental health but submitted this court could make a commonsense assessment, relying on Seiuli v Police.8 It was submitted there is a real senseMr James is at a breaking point as demonstrated by his disproportionate and irrationaloffending. A conviction would be a significant consequence for someone who has not6 H v R [2012] NZCA 198 at [35]-[36].7 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2015) 28CRNZ 144 at [12].8 Seiuli v Police [2012] NZHC 2673 at [20].offended for some time and who cannot avail himself of the protection of the CriminalRecords (Clean) Slate Act 2004.9Respondent's submissions[15] Ms Fiennes, for the Crown, submitted the Judge's conclusion the offendingwas serious was made after his consideration of Mr James' mitigating features andacceptance these were relevant in assessing the gravity of the offending. In saying thiswas an available conclusion, she referred to the fact the threat was directed at avulnerable community, the respondent's lack of knowledge Mr James could or wouldnot carry out the threat and the fact the threat was intended to shock, harm and forcean outcome.[16] Ms Fiennes emphasised that, even if the Judge was incorrect in his assessmentof the gravity of the offending, the consequences of conviction would not be out of allproportion to the gravity of the offending. Ms Fiennes observed Mr James has acriminal history, including convictions for more serious offences, so this is not asituation where a conviction would result in Mr James acquiring a criminal historywhere previously he had none. No evidence was provided to support other allegedconsequences such as potential prejudice to accessing social services or adverseimpacts on Mr James' mental health.Analysis[17] The Judge described the offending as "serious" although "not very serious".10In reaching that conclusion he had particular regard to the impact it had on the recipientof the call, and the need to protect the "vulnerable community" that such racistcomments were directed at.11 However, it is also clear that the Judge took into accountMr James' remorse, lack of intention to carry out the threat and the fact that he, too,was under pressure given all the personal setbacks he was suffering from. In my view,the Judge did not conduct his assessment on the basis that the gravity of Mr James'offending was high. Indeed, he acknowledged it was at the lower end of the hierarchy9 Due to previously being indefinitely disqualified from driving, see Criminal Records (Clean Slate)Act 2004, s 7(1)(g).10 At [8].11 At [9].of criminal offending. I do not consider the Judge erred in his assessment of thegravity of the offending.[18] However, as the Judge observed and Mr Faletanoai-Evalu acknowledged, thereal difficulty for Mr James is that he cannot point to specific consequences ofconviction that are out of all proportion to the gravity of the offending. It is not enoughthat consequences outweigh the gravity of the offending.12 In my view, generalreferences to Mr James' mental health in connection with his ongoing health issues,especially when there is no direct evidence a conviction would affect these, are notsufficient to satisfy the threshold. The case of Seiuli referred to by Mr Faletanoai-Evalu related to the inference a conviction could eliminate a job applicant at an earlystage in times where the job market was tight.13 It does not suggest this court cansimply infer this conviction would have a consequence for Mr James' mental healthwhich is out of all proportion to the gravity of the offending, without supportingevidence.[19] While the general consequences associated with a first conviction can be outof all proportion to the gravity of offending in certain circumstances,14 Mr James isnot a first time offender. He has been convicted of 12 offences, including assault witha blunt instrument, driving with excess breath alcohol and driving while disqualified.Against that history I do not think an additional conviction for misuse of a telephonewould generally stand in the way of his life in the community in a manner which isout of all proportion to the gravity of his offending.[20] In the circumstances, I am satisfied the Judge correctly determined theconsequences of conviction were not out of all proportion to the gravity of theoffending and a discharge should not be granted.[21] No specific challenge was levelled at the Judge's sentence of supervision. Inmy view, this was an entirely appropriate sentence which may assist Mr James to12 R v Smyth [2017] NZCA 530 at [12].13 Seiuli v Police, above n 8.14 See, for example, J(CA32/21) v R [2021] NZCA 690 at [42]-[50].address the personal challenges he is facing and which contributed to this offending.Again, no error has been identified in the sentence imposed.Conclusion[22] The appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchPublic Defence Service, Christchurch