IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY AP 290/02 BETWEEN PAUL KHAN WHATUIRA A N D NEW ZEALAND POLICE ORAL JUDGMENT OF HAMMOND J

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1 cs6 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY AP 290/02 BETWEEN PAUL KHAN WHATUIRA Appellant A N D NEW ZEALAND POLICE Respondent Hearing: 10 December 2002 Counsel: C Nicholls for Appellant M Ball for Respondent Judgment: 10 December 2002 ORAL JUDGMENT OF HAMMOND J Solicitors: C Nicholls, Lower Hutt for Appellant Crown Solicitors Office, Wellington for Respondent

2 [1] Paul Whatuira was charged with assault under s.196 of the Crimes Act He pleaded guilty and in the result he was fined $300. An application was made for name suppression. He now appeals to this court on the footing that he should more appropriately have been discharged without conviction, under s.106 of the Sentencing Act 2002; and that, in any event, he should have been given name suppression. [2] The background is that the appellant is a professional rugby league player for the Penrith Panthers in Australia. [3] At the end of last season he returned to New Zealand to see his parents and celebrate a delayed 21 st birthday party. The complainant was an acquaintance who was invited to that party. The party was in the appellant's parents house, but after a time it moved outside the house to an adjoining garage. Whilst the party was still in progress, the complainant burgled the house. He took many precious items belonging to the appellant, including a video camera; his Junior Kiwi representative jersey; and some of his professional rugby league jerseys. The burglary was an extensive one. The police estimate of value is $5, Quite apart from the economic value, these items were of course, of enormous emotional value to the appellant. [4] As it transpires, the complainant was caught red handed by the appellant's parents actually endeavouring to remove a second haul. He has been charged with burglary. He has pleaded guilty, and he is for sentence on 17 December 2002, in the District Court. [5] A week or so after this incident the appellant was at the Wainuiomata Rugby Club for a game of touch rugby. His property had still not then been recovered, (and indeed it has not been recovered to this date). [6] The complainant was also at this rugby club. There was a discussion between the two young men. It is common ground that when the complainant said that he did not know where the property was, the appellant lost control and "sailed into" the complainant. He delivered a number of blows to the head and ribs. 2

3 According to the summary of facts, as a result of the assault the victim received bruised and swollen ribs and bruising and swelling around his left eye and the left side of his face. [7] I should perhaps say that the timing of this incident could not have been worse from the appellant's point of view, because he was then still in negotiations with the Penrith Panthers over his future contract. Since then, he has been contracted for the 2003 season. That outcome was not known at the time of the District Court hearing. [8] It is convenient to note here also, that I have the advantage of a number of character references from persons who speak very highly indeed of the appellant. These include a character reference from the former sports editor of the Dominion Newspaper; from the coach of the New Zealand Maori Rugby League Team; and former teachers, neighbours, and other persons in the community. I accept that all of those references attest to the personal qualities of the appellant, and the fact that he has been, commendably, something of a role model for younger persons in the Wainuiomata area. [9] In the District Court Mr Nicholls, who has throughout said and done, admirably, everything that could have been advanced for the appellant, submitted that a discharge with conviction was the appropriate form of sentence; and that the appellant's name should be suppressed. [10] A very experienced District Court Judge felt unable to accept either proposition. In his view the offending was too serious to allow a discharge, and the operation of well established principles relating to the openness of court proceedings meant that he should not grant name suppression either. In the result, the appeal is against both of those holdings. [11] I take first the entry of a conviction. The law under this head is now governed by ss of the Sentencing Act Section 107 in particular provides under the general heading, Guidance for Discharge without Convictions: 3

4 The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. [12] That principle represents the codification of a principle which had been evolved in leading cases in New Zealand, under the former s.19 of the Criminal Justice Act 1985, such as Police v Roberts [1991] 1 NZLR 205. [13] Secondly, what is involved in an appeal of this character is against the exercise of a discretion. Whether the discretion has been invoked, or its use declined, an appellate Court is not at liberty to substitute its own discretion, merely by way of substitution for a different exercise of the same discretion by a lower Court, on the ground only that the appellate Court itself would have exercised the discretion differently (Halligan v Police [1955] NZLR 1185, 1188). An appellate court can interfere only if there has been a wrongful or improper exercise of the discretion, for example giving insufficient weight to relevant considerations, or giving weight to irrelevant considerations (Witte v Noxious Weeds Inspector [1974] 2 NZLR 367; Police v Dronjak [1990] 3 NZLR 75). (See Hall, SA107.1). [14] It is true, as Mr Nicholls submitted, that an appellate Court will more readily intervene where new material of significance is introduced on the appeal, by leave. I refer for instance to 0 v Police (HC Christchurch AP 97/88, 12 August 1988, Williamson J). However, before an appellate Judge will be willing to interfere with the exercise of the discretion on the basis of new material, such material must be significant or "substantial" (to use the words employed by s.121 Summary Proceedings Act 1957), in the sense that the lack of such information at first instance, constitutes a material omission. [15] Unlike in 0, as Miss Ball said, the new material here is merely an expansion of themes already before the District Court Judge. Thus while the Judge may not have been aware of the strength of the case against the complainant, it is clear that the burglary/provocation aspect was something he took into account. Equally, the character references all re-emphasise features already acknowledged by the Judge: that the appellant has a clean record, that the offending was out of character and that he is a role model to many children. 4

5 [16] To my mind, the level of review in this case is therefore no different than in any other "usual" appeal against a refusal to exercise the discretion to discharge, and thus is limited to error correction. [17] I think I do Mr Nicholls submissions no disservice if I say that they come to this: that the Judge placed too much weight on the seriousness of the offence, and too little on relevant considerations such as the prior record of the appellant, his undoubted good character, the effect on his career, the low susceptibility to reoffending, and the extreme provocation on the part of the complainant. [18] For the Crown Miss Ball said this was a serious offence, that the extra information does not change the balance of matters, and that in general it could not be said that the sentencing Judge was plainly wrong. [19] I come at it this way. A very long time ago now, a distinguished Chief Justice of England said: Revenge belongith to the Magistrate (Coke). [20] Mr Whatuira, although badly provoked, was not entitled to take the law in his own hands and to assault the complainant, any more than the complainant was entitled to commit a thoroughly despicable burglary. Had the appellant's career been interfered with, it might be said that the conviction was "disproportionate" within the terms of the section. But I now know that his career has not, been interfered with. This was a heavy assault by a very fit professional athlete. A person with that sort of profile has a distinct obligation for self restraint off the field. I give full weight to the fact that provocation was undoubtedly very high. But it did not justify the resort to heavy force, particularly I think where the complainant had been apprehended and was already facing criminal charges. [21] All of that said, it is not a matter of what this court might have done at first instance. The appellant has to demonstrate, on appeal, that the Judge was plainly wrong. I do not accept that that can be said to be so here. Accordingly the appeal against sentence will be dismissed. 5

6 [22] As to name suppression, in my view it would be inappropriate to suppress the appellant's name here, in either event. In the event that he was convicted, it was entirely appropriate that it should be able to be published. And even if I had discharged him without conviction, it seems to me that the process of open justice should have enabled comment on that decision. The principles are very well established, and I do not believe that I need to enlarge upon them further here. [23] In the result, despite everything that Mr Nicholls has said and done on behalf of his client, the appeal is dismissed. 6