WHAKATAKA v NEW ZEALAND POLICE [2022] NZHC 2908

WHAKATAKA v NEW ZEALAND POLICE [2022] NZHC 2908 [7 November 2022]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2022-416-8[2022] NZHC 2908TUAHINE HIRINI WHAKATAKAvNEW ZEALAND POLICEHearing: 3 November 2022Appearances: N J Wright for AppellantL A Marshall for Respondent (via VMR)Judgment: 7 November 2022JUDGMENT OF McQUEEN J[1] Mr Whakataka seeks leave to appeal a decision of the Gisborne District Courton 1 August 2022 to discharge an assault charge without conviction under s 106 of theSentencing Act 2002.1 The appeal is brought on a question of law on the basis that noorder was made according to s 106(3)(c). The question of law posed by Mr Whakatakais:Is it correct in considering the phrase "order the court is required to make onconviction", pursuant to section 106(3)(c) of the Sentencing Act 2002, torestrict the meaning of "required" to "mandatory"?[2] Mr Whakataka says that the answer should be "No". He appears to be seekingcourt-ordered psychological intervention under s 106(3)(c), alongside the dischargewithout conviction.1 Police v Whakataka [2022] NZDC 14410.Background[3] Mr Whakataka originally faced Judge-alone trial on two charges of indecentassault.2 During this trial, he was discharged of the first charge of indecent assaultpursuant to s 147 of the Criminal Procedure Act 2011. On the second charge, the Judgefound that the element of indecency had not been proved but held the included chargeof assault simpliciter3 was made out.4[4] Mr Whakataka was sentenced on 1 August 2022.5 Counsel for Mr Whakatakaapplied for a discharge without conviction under s 106 of the Sentencing Act. TheJudge granted the discharge without conviction and made an order under s 106(3)(b)that Mr Whakataka pay an emotional harm payment of $400 to the victim.6[5] A psychological report obtained by the Court recommended that if the matterwas dealt with in the absence of discharge without conviction, there could be benefitsto Mr Whakataka from seeing a Department of Corrections psychologist.7 The Judgeconsidered adjourning the sentencing to allow a psychologist or psychiatrist to assistMr Whakataka, and once that process was complete, then considering the s 106discharge. However, he concluded that it was in the interests of justice to bring thematter to a close in the interests of the state, Mr Whakataka and the victim.8 The Judgerecorded Mrs Wright's submission that he could order such assistance from apsychologist or psychiatrist together with the discharge without conviction butconcluded that power did not exist".9Relevant law[6] Section 106(3) provides for additional orders a court can make whendischarging an offender without conviction:10(3) A court discharging an offender under this section may—2 Crimes Act 1961, s 134(3).3 Section 196.4 R v Whakataka [2022] NZDC 8050.5 Police v Whakataka, above n 1.6 At [30].7 At [17].8 At [20].9 At [18]–[19].10 Emphasis added.(a) make an order for payment of costs or the restitution of anyproperty; or(b) make an order for the payment of any sum that the court thinksfair and reasonable to compensate any person who, through,or by means of, the offence, has suffered–(i) loss of, or damage to, property; or(ii) emotional harm; or(iii) loss or damage consequential on any emotional orphysical harm or loss of, or damage to, property:(c) make any order that the court is required to make onconviction.[7] Most relevant to this appeal is the discretion for the court to make any order itwould have been required to make had the offender been convicted (with nodischarge).11Approach to Appeal[8] This appeal is brought under s 296(3)(b) of the Criminal Procedure Act 2011,which permits appeals, with the leave of the appellate court, on questions of lawagainst a ruling by the trial court that arise:12in the determination of the charge (including, without limitation, a conviction,an acquittal, the dismissal of the charge under s 147 or a stay of prosecution).[9] The Court of Appeal has recently explained the scope of appellate review unders 296 as follows:13In R v Smyth the Court held that a question of law arises for s 296 purposeswhen there is:a) a misdirection of law apparent in the decision;b) oversight of a relevant matter or consideration of an irrelevantmatter; or11 Sentencing Act, s 106(3)(c).12 The Court of Appeal has confirmed that this includes a question of law arising from a dischargewithout conviction: see R v Smyth [2017] NZCA 530 at [7]; and R v Malu [2017] NZCA 546 at[9].13 R v Cleaver [2020] NZCA 397 at [12], citing R v Taulapapa [2018] NZCA 414 at [17] (footnotesomitted).c) a factual finding unsupported by any evidence or an omission todraw an inference of fact which is the only reasonably possibleone on the evidence.We add that an error of law may also arise when a decision is plainly wrong.[10] This is perhaps an unusual case. It is not an appeal brought by a defendant thatdischarge without conviction was wrongly refused, nor an appeal by the prosecutorthat a discharge without conviction was wrongly granted. Mr Whakataka was granteda discharge without conviction but still seeks to bring an appeal on a question of lawon the basis that the Judge was wrong not to make an additional order of counsellingor psychological supervision on the basis that there was no power for him to do so.This appears to me to involve a potential "misdirection of law apparent in thedecision", as contemplated by the Court of Appeal in (a) above.Leave to appeal out of time[11] The application seeking leave to appeal was not brought within 20 workingdays of the date of the ruling being appealed against. Accordingly, Mr Whakatakaapplies for an extension of time for filing the application.14 An application for anextension of time will only be granted when it is in the interests of justice to do so andextension of time applications routinely reduce to the reasons for delay and the meritsof the proposed appeal.15[12] Mrs Wright submits that the appeal was out of time by less than two weeks andwas caused by difficulties in communicating with Mr Whakataka, noting that hestruggles to communicate as a result of the two strokes he has suffered and that acommunication assistant was no longer available to assist as the proceedings in theDistrict Court had concluded. Mrs Wright also submits that the appeal raises a novelpoint that is significant for Courts operating under the Te Ao Mārama vision.16[13] The respondent submits that the appeal is misguided as a plain reading of s 106is a complete answer to the question raised and leave to appeal out of time shouldtherefore be declined.14 Criminal Procedure Act 2011, s 298(4).15 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [114].16 See Ministry of Justice "Te Ao Mārama" <www.justice.govt.nz>.[14] It is convenient to consider the merits of the appeal before reaching aconclusion on the application for an extension of time.The merits of the appeal[15] Mrs Wright, counsel for Mr Whakataka, submits that the District Court Judgeimplicitly limited the meaning of "required" in s 106(3)(c) to "mandatory" orders, thepractical effect of which is that Mr Whakataka will not have any input from aDepartment of Corrections psychologist. She says that a contextual approach shouldbe taken to interpreting s 106(3)(c) to allow orders to be made alongside a dischargewithout conviction. Mrs Wright submits that in the present case, it is in the bestinterests of the victim and the community that Mr Whakataka have psychologicaloversight to prevent him from reoffending.17[16] In support of her submissions, Mrs Wright refers to the legislative history ofs 106, with specific reference to s 19 of the Criminal Justice Act 1985 and cls 95 to 97of the Sentencing and Parole Reform Bill 2002. She notes that the Justice andElectoral Committee did not comment on the wording of cl 97(3)(c), the equivalent ofs 106(3)(c), but the wording changed from "penalty" to "order". Mrs Wright says thatthis legislative history supports a conclusion that Parliament did not intend for themeaning of "required" to be restricted to "mandatory".[17] Finally, Ms Wright contends that the vision of Te Ao Mārama will not beachieved if a broader reading of s 106 (3)(c) is not accepted by the courts. Mrs Wrightsays the courts' approach to sentencing has evolved over time and this is anotheropportunity for the courts to be proactive. Mrs Wright submits that if this Court wasunwilling to adopt the interpretation of s 106(3)(c) she contends for, it would be opento require that the discharge without conviction was available "so long as" counsellingwas completed.[18] I do not accept Mrs Wright's interpretation of the legislative history of s 106of the Sentencing Act. The legislation, and the legislative history, plainly support the17 Relying on s 27 of the New Zealand Bill of Rights Act 1990 and the United Nations Conventionon the Rights of the Child.view that an order under s 106(3)(c) can only be made where the order would havebeen mandatory upon conviction.18[19] To demonstrate, cl 97(3)(c) of the Sentencing and Parole Reform Bill states:(3) A court discharging an offender under this section may—(c) by order, impose any other penalty that the court is required byany enactment applicable to the offence to impose on conviction.[20] Similarly, s 106(3)(c) of the Sentencing Act states:(3) A court discharging an offender under this section may–(c) make any order that the court is required to make onconviction.[21] The operative words in both the Bill and the Act as enacted are "the court isrequired" "to impose" or "to make" on conviction. In this respect, the changesbetween the Bill and Act are purely semantic. If the change in wording was intendedto reflect a change in legislative intention as contended for by Mr Whakataka, Iconsider this would have been plainly stated in the Select Committee reports thatMrs Wright refers to. Instead it is clear that s 106 enables the Court only to imposeorders that are mandatory upon conviction; not orders that are merely discretionary.[22] I accept that the concerns that underpin this appeal are well-intentioned, in thatthey reflect a desire to help Mr Whakataka personally and protect the victim andcommunity more widely from any possible reoffending as well as promoting theimportant vision set out in Te Ao Mārama. But these concerns cannot override theclear meaning of s 106(3)(c).[23] Accordingly, I consider the question of law Mr Whakataka seeks the Court toanswer in the negative is doomed. The import of the legislation is plain. The appealis not meritorious, and it would not be in the interests of justice to extend the time for18 See also Simon France (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuters) at[SA106.08].filing the application.19 For completeness, given my conclusions above I also wouldhave not granted Mr Whakataka leave to appeal the question of law under s 296 of theCriminal Procedure Act.Result[24] The application for an extension of time to seek leave to appeal on a questionof law is declined.McQueen JSolicitors:Crown Solicitor, Gisborne for Respondent19 I note that I consider the reasons for delay in bringing the appeal inadequate in that the additionaltwo weeks taken to file the appeal do not seem to me to have been likely to make any differenceto counsel's ability to obtain instructions from Mr Whakataka.