DICKIN v NEW ZEALAND POLICE [2023] NZHC 760

DICKIN v NEW ZEALAND POLICE [2023] NZHC 760 [5 April 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2023-419-7[2023] NZHC 760IN THE MATTER of an appeal against conviction and sentenceBETWEEN WADE DICKINAppellantAND NEW ZEALAND POLICERespondentHearing: 30 March 2023Appearances: T Sutcliffe for the AppellantP Noorland for the RespondentJudgment: 5 April 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 5 April 2023 at 2:00 pm.Registrar/Deputy RegistrarSolicitors: Hamilton Legal (Office of the Crown Solicitor), HamiltonCounsel: T Sutcliffe, Hamilton[1] On 7 November 2022, Wade Dickin was convicted and discharged on a chargeof intimidation by hindering the complainant's use of his motor vehicle by grabbinghis car keys and throwing them away.1 He was acquitted of a charge of assault withintent to injure. Mr Dickin's oral application for discharge without conviction inrespect of the intimidation charge was unsuccessful.[2] Mr Dickin now appeals the conviction and the refusal of his application fordischarge without conviction. This appeal was filed nearly two weeks out of time.Despite counsel advising Mr Dickin of the right of appeal after the hearing, there wasno contact with him until he queried the option of appealing. This arose afterMr Dickin found he was being refused work opportunities. There appears to be noprejudice to the parties as a result of the late filing and the respondent does not opposethe application. I grant leave accordingly.Factual background[3] On 6 October 2021, Mr Dickin was driving behind the complainant and madea slight contact with the rear right corner of the complainant's car. After the collision,both the complainant and Mr Dickin got out of their cars. The Police alleged thatMr Dickin swung his hands at the complainant, hitting him on the neck and jaw withan open hand three to four times. They also said Mr Dickin pushed the complainantto the ground twice, fracturing his thumb in the process.[4] The Police then alleged that Mr Dickin continued to intimidate the complainantby standing over him and speaking to him in a threatening tone. Mr Dickin then tookthe complainant's car keys and threw them into a field. He continued to threaten thecomplainant by saying "you taking my licence plate and going to call the cops? Ifanything happens, I will be back with 20 guys like me".1 Summary Offences Act 1981, s 21(1)(c). Maximum penalty: three months' imprisonment or a$2,000 fine.Judgment under appeal[5] In a judge-alone trial in the District Court,2 Judge S R Clark acquittedMr Dickin of the assault charge after being presented with two diametrically opposedversions of events and with due regard to the presumption of innocence.[6] In respect of the intimidation charge as laid, the Judge noted it required thePolice to prove that Mr Dickin had threatened to injure another person or a member oftheir family, or to damage any of that person's property, with the intention that thethreat be taken seriously. Judge Clark doubted whether Mr Dickin had made the threatwith the intent to be taken seriously, relying on Mr Dickin's version of events that hesaid something along the lines of that he could be back with people if it went anyfurther. The Judge viewed this as a heated discussion with words said out of frustrationrather than any serious threat.[7] However, the Judge acknowledged that Mr Dickin had reached into thecomplainant's car, grabbed the keys, and threw them away in frustration when he hadno right to do so. Therefore, pursuant to s 133 of the Criminal Procedure Act 2011,the Judge amended the charge to one of depriving the complainant of his property orhindering his use of it, by grabbing the keys and throwing them away. BecauseMr Dickin had admitted, by his own evidence, to grabbing the keys, Judge Clark foundhe had hindered the complainant's use of the keys even if he didn't have the intentionof permanently depriving the complainant of them.[8] Judge Clark found the amended charge proven and convicted Mr Dickin.[9] An oral application for a discharge without conviction was heard immediatelyafter Judge Clark convicted Mr Dickin. Judge Clark refused the application.Fresh evidence on appeal[10] On appeal, Mr Dickin seeks to admit fresh evidence contained in his affidavitdated 10 March 2023. While no evidence was put before the Court at the oralapplication, this affidavit has since been filed to provide information on the difficulties2 Police v Dickin [2022] NZDC 22113.Mr Dickin has faced in finding employment since the conviction. The Police do notoppose leave for the Court to consider this new evidence. Accordingly, I grant leaveto admit it.Legal principlesConviction Appeal[11] Section 229 of the Criminal Procedure Act 2011 sets out a person's right toappeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge-alone trial.[12] Under s 232, the High Court can only allow an appeal from a Judge alone trialif it is satisfied that the District Court Judge "erred in his or her assessment of theevidence to such an extent that a miscarriage of justice has occurred", or that "amiscarriage of justice has occurred for any reason":232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.[13] As s 232 makes clear, not every "error or irregularity" causes a miscarriage ofjustice.3 The error or irregularity must lead to either of the consequences listed ins 232(4)(a) or (b). The Court of Appeal recently confirmed that s 232 did not changethe approach to appeals against conviction. The tests that applied prior to theenactment of the Criminal Procedure Act continue to apply.4[14] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".5 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict actually is unsafe" but that there isa real possibility the verdict would be unsafe.6[15] An unfair trial exists when the errors are prejudicial or unacceptably give riseto the appearance of unfairness. In Condon v R, the Supreme Court stated that "it isnot every departure from good practice which renders a trial unfair".7 Instead, theerrors or irregularities must depart from good practice in a manner that is "so gross, orso persistent, or so prejudicial, or so irremediable" that the court must quash thedecision.8[16] An appeal against conviction proceeds by way of rehearing.9 The appeal courtmust carefully consider all the matters that were before the Judge. But, ultimately, thecourt must reach its own decision.3 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18, [2009] 3 NZLR 145 at [30].4 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.6 At [110].7 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].8 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by theSupreme Court in Condon v R, above n 7, at [38].9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].[17] The courts have also warned of the limitations involved in not seeing or hearingdirectly from the witnesses.10 An appeal court should only interfere with the factualfindings of the trial judge in exceptional circumstances.11Discharge without conviction appeal[18] Section 106 of the Sentencing Act 2002 governs applications for dischargewithout conviction. It relevantly provides:106 Discharge without convictionIf a person who is charged with an offence is found guilty or pleads guilty, thecourt may discharge the offender without conviction, unless by any enactmentapplicable to the offence the court is required to impose a minimum sentence.[19] In applying s 106, the court must first be satisfied the threshold in s 107 ismet:12107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[20] In assessing whether the s 107 threshold is met, a court must consider threeissues.13 It must first assess the gravity of the offending on the facts of the particularcase, taking into account all aggravating and mitigating factors of both the offendingand the offender; secondly, it must identify the direct and indirect consequences of aconviction being entered; and thirdly, it must determine whether those consequenceswould be out of all proportion to the gravity of the offending.[21] An appeal of this nature is primarily one against conviction. Therefore, thelaw outlined above in the conviction appeal at [12]–[17] of this judgment applies.Namely, that the Court must dismiss the appeal if it considers the Judge erred in10 Sullivan v Police HC Auckland CRI-2008–404–152, 2 October 2008 at [30]–[3l].11 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].12 The Court of Appeal noted in R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [8] thatalthough the heading to s 107 refers to "Guidance", the wording clearly makes the s 107requirement mandatory.13 R v Hughes, above n 12, at [16]–[17].assessing the evidence to such an extent that a miscarriage of justice has occurred, orif a miscarriage of justice has occurred for any reason.[22] Usually, an appeal against the refusal to discharge an offender withoutconviction is also secondarily an appeal against sentence. However, becauseMr Dickin was convicted and discharged, there is no sentence here to be appealed.[23] Because the pre-requisite s 107 threshold is a question of fact requiring judicialassessment, an appeal against a refusal to discharge an offender without conviction isin that respect a general appeal by way of rehearing.14 The question on appeal is,therefore, whether in my view the consequences of Mr Dickin's offending are out ofall proportion to the gravity of his offending. If that is my view, it follows amiscarriage of justice has occurred in that the Judge erred by entering a conviction.SubmissionsConviction Appeal[24] Mr Sutcliffe, counsel for the appellant Mr Dickin, submits that Judge Clarkerred in not considering or making a finding on the issue of intent to frighten orintimidate or whether Mr Dickin knew his conduct was likely to cause the complainantreasonably to be frightened or intimidated. He submits Mr Dickin was only foundguilty because he admitted to grabbing the keys, he did not have the right to do so, andhe hindered the complainant's use of them. However, he submits that s 21(1)(c) of theSummary Offences Act requires the act of hindering a person's use of property to bedone with the intention to frighten or intimidate or knowing that such conduct is likelyto cause the person reasonably to be frightened or intimidated.[25] Mr Sutcliffe argues that Mr Dickin's comments were already found in theDistrict Court to be devoid of either of the necessary mens rea elements outlinedabove. In support of this, he refers to Judge Clarke's impression of the evidence:15My view of the matter is that the words said by Mr Dickin on his version ofevents perhaps get close to that but appear to be made between the course of14 R v Hughes, above n 12, at [11].15 Police v Dickin, above n 2, at [15].a conversation, a discussion which was becoming heated. Some backwardsand forwards and perhaps borne out of frustration and said at the heat of themoment. Therefore, I have doubt as to whether Mr Dickin attempted it to betaken seriously.[26] From this, Mr Sutcliffe submits Judge Clark viewed the complainant assomeone who was fully participating in the conversation and due to the backwards andforwards nature of the conversation, was neither frightened nor intimidated. He notesthat while it is accepted that the complainant's fright or intimidation at the relevanttime of the conduct does not need to be established and rather it is the defendant's stateof mind that is relevant, the Court can infer knowledge from a defendant's conduct.In support of this counsel cites Green v Police,16 where Edwards J considered that thecourt can infer the knowledge required under the alternative mens rea elements, thatis, knowing that their conduct is likely to cause the other person reasonably to befrightened or intimidated, from the defendant's conduct:[58] The Court has to be satisfied beyond reasonable doubt that thedefendant had knowledge his conduct was likely to cause the person toreasonably be frightened or intimidated. For the defendant to think this result"likely", he or she must consider there is a real or substantial risk of that result,not merely a remote possibility. That is, the defendant must anticipate afeeling of fright or intimidation which would be a reasonable response to theconduct in question. A court can infer such knowledge from the defendant'sconduct.[27] However, Mr Sutcliffe also submits that the conduct of the defendant shouldnot be viewed in a vacuum divorced from that of the complainant when assessing thedefendant's knowledge at the time.[28] It is then said that Judge Clark similarly held that Mr Dickin's actions inthrowing the key were "probably out of frustration".17 Therefore, Mr Sutcliffe argues,it falls well short of a finding that Mr Dickin had an intention to frighten or intimidateor had knowledge his conduct would likely cause the complainant reasonably to befrightened or intimidated. He respectfully submits that Judge Clark's sole focus wason the actus reus when he concluded the s 21(1)(c) charge was made out.16 Green v Police [2017] NZHC 1551.17 Police v Dickin, above n 2, at [28].[29] Mr Sutcliffe contends that Judge Clark's decision was wrong in law and factbecause the only possible inference available from the evidence was that Mr Dickinwas at most, frustrated, and never had the intention to frighten or intimidate thecomplainant, or knew that his actions would likely cause the complainant toreasonably be frightened or intimidated given the complainant's presentation.[30] Counsel for the Crown submits that the surrounding circumstances, as foundby Judge Clark, were properly referred to in finding the intimidation charge proven.These surrounding circumstances include that while heated discussions wereexchanged, Mr Dickin, perhaps out of frustration and in the heat of the moment, tookthe complainant's keys and threw them away. The Crown acknowledges that this wasnot sufficient to establish the original charge, but says it is sufficient and contains thenecessary mens rea for the amended intimidation charge.[31] The Crown submits it was open to the Judge to infer that following a heatedargument, Mr Dickin's actions would reasonably have caused the complainant to befrightened or intimidated and that Mr Dickin would have been aware that his actionsmay result in such a feeling. They say this is because the actions of Mr Dickin mustbe viewed in the context of the incident as it occurred and the exchange between himand the complainant. Therefore, the Crown submits that an inference was available toJudge Clark that would satisfy the mens rea requirement.[32] Accordingly, counsel for the Crown submits Judge Clark was best placed todraw such an inference, was not wrong in fact or law, and therefore, the appeal againstconviction should be dismissed.Discharge without conviction appeal[33] Mr Sutcliffe submits that the consequences of conviction for Mr Dickin are outof all proportion to the gravity of the offending, and a discharge without convictionper s 106 of the Sentencing Act 2002 is appropriate.[34] Counsel notes that Judge Clark was not satisfied, given Mr Dickin's history ofoffending, that a discharge without conviction would make much difference to himgoing forward. He says this was despite Mr Dickin pointing out he had been offencefree for almost a decade and that an additional conviction of intimidation would havenegative consequences for him. He refers to the affidavit of Mr Dickin that tells of thedifficulties he has had in finding employment because of the recent conviction.[35] Mr Sutcliffe refers to Z v R18 and R v Hughes19 as confirming that s 107 of theSentencing Act requires a three-step approach by the Court when considering adischarge without conviction:(a) Identify the gravity of the offending by reference to all the facts of thecase, including aggravating and mitigating factors.(b) Identify the direct/indirect consequences of a conviction.(c) Determine whether direct/indirect consequences of a conviction are outof all proportion to the gravity of the offending.[36] Counsel cites R v Leitch to confirm that Mr Dickin does not bear any onus inestablishing the disproportionality test as all that is required is the Court be satisfied.20Furthermore, Mr Sutcliffe submits it is not necessary for the Court to be satisfied thatdirect or indirect consequences would inevitably or probably occur. Rather, he submitsit is sufficient if the Court is satisfied that there is a real and appreciable risk suchconsequences would occur.21 Counsel goes on to submit the higher the likelihood andthe more serious the consequences, the more likely it will be that the statutory(disproportionality) test can be satisfied.22[37] In light of this, counsel submits Judge Clark described the incident as minor,but at the time, there was no evidence to suggest consequences flowed from theconviction. He submits this has subsequently been proven to be otherwise.18 Z v R [2012] NZCA 599, [2013] NZAR 142.19 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 (CA).20 R v Leitch [1998] 1 NZLR 420 (CA) at 428.21 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; R v Taulapapa [2018]NZCA 414 at [22].22 Iosefa v Police at [35]; DC v R [2013] NZCA 255 at [43].[38] Counsel for the Crown, guided by the appellant's submission on this matter asthey are not in possession of the sentencing notes or the comments of Judge Clark onthis, submit that Judge Clark did not err in his assessment that the consequences of aconviction would not outweigh the gravity of the offending. They accept the law andtest as set out by counsel for the appellant, and refer to Judge Clark's reasoning thatgiven Mr Dickin's criminal history, he was not satisfied the conviction would makemuch difference to Mr Dickin going forward.[39] In support of this, the Crown annex Mr Dickin's criminal history and note therelevant prior convictions as including: injuring with intent to injure in 2009, maleassaults female and common assault in 2010 and 2013, six convictions of contraveninga protection order, and threatening to kill and assault with a weapon in 2013. TheCrown also refer to Mr Dickin's most recent conviction of cultivating cannabis in2018, and therefore is no longer afforded the benefit of the Criminal Records (CleanSlate) Act 2004.[40] The Crown recognise the gravity of the offending, on a stand-alone basis, couldbe considered low, as demonstrated by the convict and discharge sentence imposed byJudge Clark. However, they still submit Judge Clark did not err in his assessment.AnalysisConviction appeal[41] The relevant mens rea of intending to frighten or intimidate or knowing thathis conduct is likely to cause the complainant reasonably to be frightened orintimidated, applies to both the original intimidation charge and the amended charge.However, in respect of the original intimidation charge, Judge Clark assessed it in thecontext of whether Mr Dickin intended the threat to be taken seriously when he saidsomething along the lines of he "could be back with people".[42] The words of Judge Clark that Mr Sutcliffe points to as demonstrating a lackof a finding of the relevant mens rea are not representative of that, but ratherJudge Clarke's view on Mr Dickin's intention that the threat be taken seriously. Afterexpressing doubt as to whether Mr Dickin did attempt the threat to be taken seriously,the Judge amended the charge to represent only the throwing away of the keys.Therefore, Judge Clark's findings that Mr Dickin was frustrated and may not haveattempted the threat to be taken seriously, does not prevent a finding of the relevantmens rea for the conduct of throwing away the keys.[43] Even though Judge Clark noted that Mr Dickin probably threw the keys awayout of frustration, it was still open for him to infer from the evidence that Mr Dickinat least anticipated a feeling of fright or intimidation would be a reasonable responseto his conduct. In other words, it must have been apparent to Mr Dickin that his actionsof taking the keys out of the complainant's car and throwing them away, would beintimidating.[44] The doubt expressed by Judge Clark in respect of the intimidation bythreatening to injure charge does not preclude him from finding the relevant mens reain respect of the amended charge. I acknowledge that Judge Clark did not explicitlyconsider the relevant mens rea when turning his mind to the amended charge, however,this Court can, on appeal, draw its own conclusion from the evidence andcircumstances. Given that I find it was open on the evidence for a finding thatMr Dickin did have the relevant mens rea, I do not consider there to be a real risk thatthe outcome was affected.[45] Accordingly, I am not satisfied that Judge Clark erred in his assessment of theevidence to the extent that a miscarriage has occurred, or for any other reason. Theappeal against conviction is dismissed.Discharge without conviction appeal[46] The gravity of Mr Dickin's offending is relatively low. This is indicated by therelatively low maximum penalties under s 21(3) of the Summary Offences Act whichare imprisonment for a term not exceeding three months or a fine not exceeding$2,000.[47] The consequences of the conviction are put to this Court in Mr Dickin's mostrecent affidavit. Of relevance in this affidavit is Mr Dickin's employability since thehearing and conviction on the intimidation charge. Mr Dickin says he has beenunsuccessful at many applications he has made for employment, with one employertelling him the most recent charge of intimidation was a disqualifying factor due to thenature of the job requiring interaction with members of the public. He says he cannoteven get a minimum-wage job.[48] Mr Dickin also points to the fact that he was in a well-paid job prior to hisconviction and holds certifications and licences for various types of vehicles. He saysthat many of the jobs he has applied to are entry-level jobs which do not require thecertifications or licences he has, but he is still constantly being rejected from them.This, he says, is a clear indication that the recent conviction is the main obstacle tohim gaining employment.[49] The Crown support Judge Clark's consideration that Mr Dickin's history ofcriminal offending means this recent conviction won't change much going forward.This was determined by Judge Clark without the recent affidavit of Mr Dickinexplaining his recent employment struggles.[50] In light of this new evidence from Mr Dickin, which Judge Clark did not haveavailable to him at the time he considered the consequences of the conviction, it isevident that this conviction has changed Mr Dickin's employability considerablydespite his history of criminal offending. Mr Dickin refers to this in his affidavit andsays that despite his prior criminal offending in his younger years, he was employedby ACC as an installer of wheelchair ramps and regularly had contact with vulnerablepersons. He says ACC was fully aware of his prior offending and that because he hadgrown up and left his offending in the past, it did not impede him from being hired.[51] Judge Clark erred, albeit without fault as he did not have this affidavitevidence, in his assessment of the consequences of conviction. I consider theconsequences would have been assessed as out of all proportion to the gravity of theoffending because it is not the court's aim to prevent persons from regainingemployment, particularly if the gravity of their offending was low.[52] Accordingly, a miscarriage of justice has occurred as a result of this error.Result[53] The appeal against conviction is dismissed.[54] The appeal against refusal to discharge without conviction is allowed.Order[55] The appellant is discharged without conviction under s 106 of the SentencingAct 2002.____________________________Woolford J