IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-00018 [2013] NZHC 2537

BETWEEN	LEVI JACK MILTON Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	26 September 2013	

Appearances:	
L Garthwaite for Appellant
R P Bates for Respondent	

Judgment:	
26 September 2013	

ORAL JUDGMENT OF D GENDALL J

Introduction

[1]       The appellant, Levi Jack Milton appeals against the decision of the District Court delivered on 28 June 2013 whereby the Court declined to grant the appellant a discharge without conviction.

[2]       The appellant had pleaded guilty to one charge of discharging a firearm with reckless disregard for the safety of others pursuant to s 53(3) of the Arms Act 1983 (maximum penalty three years imprisonment).   The appellant was convicted and fined $500.

Background facts

[3]       The summary of facts before the Court indicates the following:

(a)	At  about  5.00  pm  on  Monday,  9  April  2013  the  appellant  was travelling in  a  motor vehicle towards  Berwick near Mosgiel in  a
semi-rural area.

MILTON v NEW ZEALAND POLICE [2013] NZHC 2537 [27 September 2013]

(b)	The appellant asked the driver to stop at the junction of Dukes Road

South and Gladfield Road for a toilet stop.

(c)       The appellant got out of the vehicle, opened the boot of the vehicle and took out a double-barrelled shotgun and placed a single cartridge in it.

(d)	The appellant aimed the shotgun at the Duke Road South signpost and fired, it hitting the signpost and putting a hole in it.

(e)	The appellant got back into the car and drove from the scene.

(f)	The appellant later admitted the above facts and stated in explanation

that he was upset at not passing his driver’s test at about that time.

(g)	The appellant is a young man.  He was 17 years old at the time, just out of the Youth Court jurisdiction.  He had not previously appeared before the Court.

[4]       The Court records indicate that on 28 May 2013 a guilty plea was entered but the appellant, through counsel, indicated that he intended to make an application for discharge without conviction.  The Court set a timetable for filing submissions in that regard.

[5]       On 28 June 2013 the District Court had before it a lengthy affidavit from the appellant together with submissions on behalf of the appellant setting out the applicable law in relation to a discharge without conviction pursuant to ss 106 and
107 of the Sentencing Act 2002.

[6]       The appellant’s  application  for diversion  was  not  considered  appropriate. The police did not oppose the application for a discharge without conviction it seems at the time of the sentencing hearing.  By the time of that hearing however, the appellant’s firearm licence had been revoked.

[7]       Finally, the appellant wrote a letter of apology and had paid reparation of

$207 for the cost of replacing the damaged sign at the time. As I have noted above at sentencing the appellant asked the District Court Judge to discharge him without conviction. The power to grant a discharge without conviction is conferred by s 106 of the Sentencing Act 2002.  Before a Court may exercise its discretion under s 106, s 107 requires the Court to first be satisfied that the consequences of conviction would be out of all proportion to the gravity of the offence.

[8]       The District Court Judge in this case was not so satisfied and accordingly

dismissed the appellant’s application.

The District Court decision

[9]       In dismissing that application for a discharge without conviction the District Court Judge identified the mandatory considerations to be undertaken before the discretion contained in s 106 can be exercised as the following:

(a)	The gravity of the offending;

(b)	The direct and indirect consequences of the offending; and

(c)	Whether those consequences would be out of all proportion to the gravity of the offending.

[10]     In  the  District  Court  His  Honour  Judge  Flatley  held  the  gravity  of  the offending  in  this  situation  and  the  level  of  culpability  of  the  appellant  to  be “relatively high”. This was on the basis that:

(a)	The behaviour was irresponsible and dangerous particularly so for

someone who held a firearm’s licence.

(b)	The possibility that a rogue shot fired by the appellant may have hit someone had far-reaching consequences.

(c)	That it was not a spur of the moment or action/reaction on his part.

[11]	Judge Flatley then identified the consequences of the offending being:

	(a)	The main consequence advanced on behalf of the appellant was the	
		impact of a conviction on  his application for entry into the New

Zealand Defence Force; and	
	
(b)	
The general consequences in relation to his potential overseas travel.	

[12]	
The	
Judge then concluded that the consequences of a conviction would not	
outweigh the gravity of the offending as he was unable to say for sure that the appellant would not be accepted into the Navy, the defence force of his choice, and that  this  would  have  been  a  foreseeable  consequence  to  the  appellant  of  his behaviour. His Honour held that it was appropriate for the information regarding the conviction to be considered by the Navy in their recruitment, rather than the Court acting in a way that would effectively hide that relevant information.

Grounds of appeal

[13]     The  grounds  for  appeal  here  are  that  the  District  Court  Judge  erred  in exercising his discretion in respect of ss 106 and 107 of the Sentencing Act 2002.

[14]     In particular, it is claimed the sentencing Judge erred in his application of the disproportionality test under s 107 in that he overstated the gravity of the offending and understated the direct and indirect consequences of the conviction for the appellant.

Judicial assessment on appeal

[15]     As French J discussed in Booth v Police1  following the Court of Appeal decision in R v Hughes the issue of whether a Court is satisfied that the s 107 threshold has been met is a matter requiring judicial assessment which can be subject
to appeal on normal appellate principles.

1	Booth v Police HC Invercargill CRI-2010-425-21, 1 September 2010 at [8].

[16]     Consequently this appellate Court is required to reach its own independent assessment here rather than treating the matter as an appeal against the exercise of a discretion.

The appellant’s particular grounds for appeal.

[17]     The appellant now argues in particular that:

(a)       because the District Court Judge appears not to have appreciated the difference between the firing of a shotgun and a rifle in the circumstances prevailing here, that the gravity of the offending was overstated; and

(b)	because  of  advice  from  the  Defence  Force  that  the  appellant’s application to join the Navy has been deferred for a year as the applicant does not meet the “minimum security standard necessary to enlist with the New Zealand Defence Force as a result of the New Zealand Police records and traffic history checks” the District Court underestimated the consequences of the conviction.

The gravity of the offending

[18]     In the District Court His Honour Judge Flatley determined the gravity of the

appellant’s offending here to be “relatively high”.

[19]     That assessment was based as I see it on a possible misunderstanding by the Judge of the weapon used by the appellant and the potential consequences that could flow from the use of a shotgun. The appellant has filed an affidavit sworn 16 August
2013 in which he deposes that the shotgun used by him in this case is distinct in nature and purpose from a rifle.

[20]     As a result the appellant contends the potential consequences foreseen by the District Court Judge when assessing the gravity of the offending might well have been regarded as more serious, given the type of weapon used by the appellant.

[21]   This misunderstanding, it is said, might well have led to the potential consequences of the offending being somewhat overstated by the sentencing Judge.

[22]     On this aspect, before me Mr Bates, for the respondent, accepted that the risk of injury from the use of a shotgun as compared to the use of a rifle may be less in certain circumstances given the distance that shotgun pellets can travel compared to bullets from a rifle.  He went on to submit, however, that there were still risks involved in the use of a firearm in inappropriate situations, particularly where people might be in close vicinity.  The present incident however, as I have noted, occurred in a semi rural setting which as I understand it was some 400 metres distant from the nearest house or building.

Fresh evidence as to direct and indirect consequences of conviction for the appellant

[23]     Subsequent  to  the  appellant’s  conviction  and  as  a  direct  result  of  that conviction his application for admission to the New Zealand Defence Force has been deferred for one year.  Confirmation of this is attached to the appellant’s affidavit of
16 August 2013.

[24]     The appellant says now he is unsure whether his application to join the Navy will be successful when he re-applies.  However, he maintains the deferral in itself has  had  consequences  for  him  in  terms  of  his  personal  situation  for  the  next
12 month period.  In addition, the conviction it is said has had the consequence of limiting the appellant’s employment opportunities.

[25]     It is suggested that, had His Honour Judge Flatley had the benefit of this further  information  regarding  the  actual  impact  of  the  conviction  upon  the appellant’s personal circumstances, then his conclusion in terms of the culpability of the appellant and the effects of a conviction upon him may well have been different.

Other direct and indirect consequences of a conviction in proportion to the gravity of the offence.

[26]    On this the appellant contends that he has already suffered the following consequences:

(a)	His application for employment with the New Zealand Defence Force, as noted above, has been deferred for one year;

(b)	He has been unable to obtain other employment;

(c)	It is unclear whether he will be able to join the New Zealand Defence

Force after the one year deferment when he reapplies again in 2014;

(d)	Adverse publicity has occurred through publication of his name in the

Otago Daily Times;

My decision

[27]     Here, the District Court Judge clearly applied the three part test in s 106 but, as I see it, the appellant is correct in arguing in this case that the Judge overstated the gravity of the offending and understated the consequences of a conviction.

[28]     As to the gravity of the offending, in my view the learned District Court Judge erred in finding that this was “relatively high”.  He stated at paragraph [11] that:

[11]	There are far too many firearms accidents and deaths in this country
and some of them have occurred in situations such as this.”

[29]     At [13] the learned District Court Judge commented again that people have been killed in this sort of situation before and the Judge referred to the incident in the North Island where a woman was shot at a campsite.

[30]     The appellant makes the point that the campsite death involved a rifle and not a shotgun.  He has provided an excerpt from the Firearms Code which states that shotgun pellets are less likely to endanger someone. As I see the position, when this evidence is considered alongside the appellant’s youth, his lack of previous convictions, and his good character, there is a reasonable argument in my view that the gravity of the offending here is not as high as Judge Flatley determined.

[31]     As  to  the  consequences  of  conviction, on  the  evidence available to  His

Honour Judge Flatley at the time, I think he was entitled to find it was not a given

that the appellant would fail to get into the Navy if he was convicted.  The fresh evidence however which has been provided by the appellant here, which the learned District Court Judge did not have before him, however, shows that the appellant’s application to join the Navy has been deferred for a year as a direct result of his conviction.

[32]     Turning now to consider whether the consequences of conviction would be out of proportion to the gravity of the offence, I agree with the submissions advanced to me by counsel for the appellant that the consequences were disproportionate.

[33]     It does appear that Judge Flatley in the District Court was concerned that a discharge without conviction would mean that the appellant’s behaviour might be hidden from the Navy which in terms of its recruitment policy seeks mature and responsible  recruits  for  roles  that  may  involve  firearms.    This  was  a  justified concern.

[34]     But,  as  matters  currently  stand,  the  Candidate  Co-ordinator  at  Defence Careers is now aware of the appellant’s conviction, as is also the Directorate of Defence Security.  If the appellant succeeds on this appeal it is not clear whether the record of his previous application and police check would be considered by the Navy when progressing his recruitment, but I would assume that this would be the case.

[35]     The offending here was ill-advised and represented a rather stupid act on the part of the appellant.   Nevertheless, in my view it was a one-off event and what might be described as a rather stupid prank.  If the offending in my view had been more serious the learned District Court Judge’s opinion that the Navy should have the opportunity to assess the appellant’s behaviour might, as I see it, have been a good reason not to exercise the discretion to discharge him, notwithstanding that the s 107 test was met.  But, because in my view the gravity of the offending here is in real terms less serious than may have appeared to His Honour Judge Flatley, his concerns about the Navy’s level of knowledge about the appellant are possibly insufficient to justify a refusal to exercise the discretion to discharge.  And in any event what is clear now is that the Navy is already well aware of the appellant’s offending.

[36]     Finally, I am mindful of the relative youth of the appellant, the fact that he is just out of the Youth Court jurisdiction, has no previous convictions and is a young man clearly of good character with a genuine concern for his future planned career.

[37]     For all these reasons I conclude that the appeal should be allowed.

[38]	The appeal is now allowed and the appellant is discharged without conviction with respect to the offence charged.

[39]	An order is now made quashing the conviction and the fine of $500 imposed on the appellant in the District Court.

...................................................
D Gendall J

Solicitors:
Farnan Garthwaite Law, Dunedin
Wilkinson Adams, Dunedin