Allen v Police
[2021] NZHC 981
•5 May 2021
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000178
[2021] NZHC 981
IN THE MATTER of an appeal against refusal to grant a discharge pursuant to s 106 of the Sentencing Act 2002 BETWEEN
SHAUN PATRICK ALLEN
Appellant
AND
THE NEW ZEALAND POLICE
Respondent
Hearing: 4 May 2021 Appearances:
K J Gray for Mr Allen
S M H McManus for Respondent
Judgment:
5 May 2021
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 5 May 2021 at 4.00 pm
Registrar/Deputy Registrar Date:
ALLEN v THE NEW ZEALAND POLICE [2021] NZHC 981 [5 May 2021]
Introduction
[1] On 30 July 2020 the appellant, Mr Allen, applied for a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) in respect of one charge of assault (the application).1 Judge Brandts-Giesen declined the application and convicted Mr Allen.2
[2] Mr Allen was fined $100 plus court costs and ordered to pay $600 in emotional harm reparation. Mr Allen appeals the conviction, fine and reparation.
[3]Mr Allen also applies for leave to file his appeal out of time.
Background
[4] Mr Allen and the victim lived together as flatmates during the COVID-19 level 4 lockdown in 2020. The relationship between the two deteriorated during this period. The victim considered Mr Allen was not complying with lockdown requirements and was concerned as she was immunocompromised.
[5] At about 5.30 pm on 3 April 2020 Mr Allen returned to the flat. The victim had locked the door and told Mr Allen to leave as he was continuing to disregard lockdown restrictions. The victim opened the window to communicate with Mr Allen. Mr Allen grabbed the window, opened it wider and attempted to climb in. Mr Allen then spat directly into the victim’s face. The saliva ran down her face, entering her eyes and mouth.
[6] When police attended, Mr Allen stated he had sneezed rather than spat at the victim.
[7] The victim was undergoing chemotherapy at the time of the assault. As a result of the assault she was required to undergo medical tests and has suffered panic attacks since.
1 Crimes Act 1961, s 196.
2 Police v Allen [2020] NZDC 15364.
The District Court decision
[8] The Judge commenced his decision by canvassing the facts of the offending. He then went on to consider the application, adopting the statutory test under s 107 of the Act to determine if Mr Allen had met the requisite threshold for the granting of a discharge without conviction.
[9] In mitigation, counsel for Mr Allen, Ms Gray, submitted he was remorseful, had no prior convictions and was only 21 years old. Mr Allen, himself, was the victim of an assault in 2019 which had heightened his pre-existing condition of anxiety.
[10] The Judge noted that the primary consequence of a conviction was that Mr Allen’s application to reinstate his Dutch citizenship would be impacted. The Judge understood that a conviction would result in a five-year stand-down period. The Judge was cognisant of Mr Allen’s submission that this consequence was out of all proportion to the offence.
[11] However, the Judge considered, in the context of the COVID-19 lockdown, the deliberate act of generating spittle to the head and face of a person was a very serious matter. Further, in this case the Judge identified that the victim was vulnerable as she was being treated with chemotherapy and that Mr Allen was aware of this. While no physical harm to the victim eventuated, physical harm was a real risk given the vulnerability of the victim’s physical condition at the time. The Judge noted that the emotional harm she suffered as a result of the assault was very real.
[12] The Judge found the gravity of the offending was serious. Mr Allen was breaching COVID-19 lockdown restrictions, thus exposing his flatmates to risk. Further, he knew the victim was vulnerable because of her chemotherapy treatment which had reduced her immune system. Overall the Judge set the gravity of the offending at a moderately serious level when Mr Allen’s personal circumstances were also considered.
[13] Mr Allen had booked tickets to travel to the Netherlands. The Judge noted that Mr Allen had purchased those tickets in anticipation of a discharge without conviction on the assault charge. The Judge considered that Mr Allen’s assertion that his
application for a Dutch passport may be declined was a consequence that was not as significant as Mr Allen claimed, as Mr Allen may have been able to obtain permanent residency in the Netherlands. In summary, the Judge did not consider the consequences of the conviction to be out of all proportion to the offending.
Approach on appeal
[14]Mr Allen has an automatic right of appeal.3
[15] As the Court of Appeal in Jackson v R noted, appeals against a refusal to grant a discharge without conviction proceed as an appeal against conviction and sentence.4 The appeal can only be allowed if the Court is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for “any other reason”.5 Section 232(4) of the Criminal Procedure Act 2011 defines “miscarriage of justice” as:
… any error, irregularity, or occurrence in or in relation to or affecting the trial that -
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[16] In Jackson the Court of Appeal discussed the meaning of “miscarriage of justice” in the context of an appeal against a refusal to discharge without conviction:6
… While it may be seen as straining the statutory definition of a miscarriage of justice, we are satisfied that the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[17] For the appeal to be successful I must find that the Judge made a material error or that he erred in applying the requisite statutory test.
3 Criminal Procedure Act 2011, s 229.
4 Jackson v R [2016] NZCA 627.
5 Criminal Procedure Act, s 232(2).
6 Jackson v R, above n4 at [12].
Application for leave to appeal out of time
[18] Mr Allen seeks leave to file his appeal out of time. Ms Gray explained she was newly assigned and that Mr Allen had been out of the country and subject to quarantine upon his return to New Zealand. No prejudice to the respondent arises if leave is granted and the respondent does not oppose leave being granted.
[19] I consider it is fair for leave to file this appeal out of time to be granted, having regard to the special circumstances arising from the current mandatory quarantine regime.
The law
[20] Where a person is found guilty or pleads guilty, s 11(1)(a) of the Sentencing Act requires the Court to consider whether they might be more appropriately dealt with by way of discharge without conviction.
[21] Section 106 of the Sentencing Act states that where a person charged with an offence pleads or is found guilty, the Court may discharge him or her without conviction unless the Court is required to impose a minimum sentence.
[22] Section 107 of the Sentencing Act governs the exercise of the discretion under s 106:
107 Guidance for discharge without conviction
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.
[23] In R v Hughes, the Court of Appeal confirmed that s 103 requires a three-step process:7
... The court must consider, first, the gravity of the offending; secondly, the consequences of conviction; finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.
7 R v Hughes [2008] NZCA 546 [2009] 3 NZLR 222 at [16].
Gravity of the offending
[24] The Court must first determine the gravity of the offending as “low level”, “moderate” or “serious”. The Court’s assessment of the gravity of the offending for the purposes of an assessment under ss 106 and 107 must take into account not only the aggravating and mitigating features of the offending itself, but also the aggravating and mitigating features personal to Mr Allen.
[25] Counsel for Mr Allen, Ms Gray, submitted that the Judge erred in classifying the offending as serious. She submitted that the Judge should have accepted that the offending was in the context of a very unhappy flatting environment involving high stress levels and toxic interactions which resulted in Mr Allen having to leave the address. She also submitted the Judge ought to have considered the additional stress not only to Mr Allen’s other flatmates but to Mr Allen arising from the COVID-19 lockdown.
[26] Ms Gray referred to the fact that Mr Allen sought advice from Healthline and was advised to go to his parents’ home, but that he was also advised by Healthline that he could return to the flat at any time and not be in breach of lockdown restrictions. His flatmate’s perception that he was in breach of the lockdown restrictions was a great source of tension within the flat.
[27] Finally in respect of the gravity of the offending, Ms Gray submitted that the context was highly important, a context of heightened emotional state and vulnerabilities of all those involved and that the gravity of the offending ought to be categorised by the Judge as low/moderately serious.
[28] Ms McManus submitted the Judge was correct in his analysis as to the gravity of the offending being serious.
[29] The aggravating factor of this offending is the vulnerability of the victim. It is common ground that Mr Allen may not have known the victim had breast cancer. Mr Allen, in his affidavit of 16 April 2021, deposes that the victim:
… had only described it to me in text as a cystic tumour for which she needed chemotherapy. I did not understand she meant breast cancer.
[30] It is clear from this, however, Mr Allen knew that the victim was undergoing chemotherapy and that this resulted in her having a compromised immune system.
[31] The impact of the offending upon the victim was that she was required to undergo further medical tests on top of her existing treatment.
[32] Ms Gray is correct to refer to the context of the offending, which was that it occurred during the COVID-19 pandemic level 4 lockdown. Nationwide the New Zealand population was expected to adhere to strict social distancing requirements and to limit contact with other people outside of their immediate household contacts. On the day of the offending COVID-19 was being transmitted within the community.8
[33] Mr Allen also deposes that he sought advice from Healthline about leaving the flat and returning to the flat on 3 April 2020. This is indicative of his understanding of the seriousness of the COVID-19 pandemic.
[34] I agree with the District Court Judge that, whilst this assault did not involve the use of a weapon, I consider it to be potentially a serious assault in the context of the COVID-19 pandemic and in light of the victim’s compromised immune system. Fortunately, the actual physical harm to the victim was minimal and she did not contract COVID-19, which could have been life threatening for her. I consider the Judge was correct to assess the objective gravity of the offending to be serious.
Factors personal to Mr Allen
[35] Ms Gray submitted that Mr Allen has no previous convictions and is otherwise of good character. Ms McManus acknowledged that the Judge did not directly refer to good character, however she submitted that even if he had this would not have further reduced the gravity assessment to a significantly lower level.
8 On 3 April 2020 there were 49 new confirmed cases of COVID-19 and 22 new probable cases. Ministry of Health “COVID-19 media update 3 April” (3 April 2020)
< personal mitigating factors are Mr Allen’s previous good character, youth and lack of prior convictions. I agree with Ms McManus that there is no evidence of demonstrated remorse, beyond the entry of a guilty plea.
[37] I acknowledge that Mr Allen, himself, faced some personal difficulties. He was diagnosed with post-traumatic stress disorder (PTSD) in 2019 following a sexual assault.
[38] I reduce the gravity of the offending to moderate in light of these mitigating factors.
The direct and indirect consequences of a conviction for Mr Allen
[39] The Judge identified the primary consequence of a conviction as being the impact on Mr Allen’s Dutch citizenship and his application for a Dutch passport. Mr Allen was concerned the conviction would cause his application for citizenship and/or for permanent residency to be declined and a five-year stand-down period would arise.
[40] Mr Allen deposes his “application [for a passport] has not been granted due to [his] criminal history”.
[41] The fundamental issue on appeal is Mr Allen has not provided evidence of a causal nexus between his conviction and his application for a Dutch passport being declined. Such evidence would demonstrate to this Court that the risk of this consequence occurring was real.
[42] Ms Gray refers to a number of cases, which she says support the submission that the consequence of being unable to travel to and live in the Netherlands is out of all proportion with the gravity of the offending.
[43] In Kumar v Police the appellant pleaded guilty to one charge of assault with a weapon.9 The offending was the result of the appellant being subjected to repeated
9 Kumar v Police [2015] NZHC 3293.
racial abuse by the victim over a period of months leading up to the incident.10 The consequence of conviction was that the appellant would likely be deported, which impacted the appellant’s wife and unborn child.11 The High Court, allowing the appeal, was satisfied the consequences outweighed the gravity of the offending.
[44] The Court reached this conclusion by considering the offending in context, which included a “prolonged history of racial abuse directed by the victim towards [the appellant]”.12 Materials were filed to provide background to the assault,13 including documents produced for the purposes of a disciplinary process with the appellant’s employer following an incident14 and evidence that other staff members observed the incident.15
[45] In my view this case is of little assistance. While I accept the situation at the flat appears to have been toxic, there is no evidence filed of prolonged abuse. Nor does the consequence of not being able to reside in the Netherlands appear to affect any other persons.
[46] In Rahim v R a discharge without conviction was granted on appeal where deportation would result in “significant and devastating adverse effect on [the appellant’s] family.16 Expert evidence provided indicated a real and appreciable risk that went beyond the prospect of deportation.17
[47] Again, I consider the circumstances of that case can be distinguished from Mr Allen’s case. The consequence of his conviction, if his affidavit is accepted at face value, is that he has lost an opportunity to reinstate his Dutch citizenship and to make the Netherlands his home imminently. These consequences are considerably less serious than those in Rahim.
10 At [16].
11 At [41].
12 At [26].
13 At [16].
14 At [26].
15 At [26].
16 Rahim v R [2018] NZCA 182 at [27].
17 At [30].
[48] In respect of Mr Allen’s claim that he has had trouble obtaining employment as a result of his conviction, Ms Gray advised the Court that Mr Allen is now employed as a consultant undertaking healthy homes assessments and that Mr Allen’s diminished employability is no longer advanced as a consequence of his conviction.
[49] Finally, Ms Gray submitted that the conviction would have a negative impact on Mr Allen’s mental health. By contrast with other cases where such a submission is made, there is no evidence before the Court that Mr Allen has ongoing mental health concerns now. This should be contrasted with Prasad v R, where an opinion of a psychologist was preferred to show a link between conviction and a risk of suicide in the context of an attempt already having been made.18
[50] In respect of the impact on Mr Allen’s mental health, I have only his self-report and that is not sufficient evidence of a disproportionate consequence of the conviction. I do not consider this is outside of the natural consequences of a conviction.
[51] Finally, in the absence of any documentation proving Mr Allen’s application to reinstate his Dutch citizenship was denied as a result of this conviction, I dismiss the appeal.
Conclusion
[52] I find the assault, after taking account of the mitigating factors of the offending, should be categorised as moderate.
[53] I do not consider the consequences of conviction to be out of all proportion to the gravity of the offending.
[54]In those circumstances the sentence imposed by the Judge was justified.
Result
[55]The appeal against conviction and sentence is refused.
18 Prasad v R [2018] NZCA 537.
[56] I order suppression of the victim’s identity under s 202(1) of the Criminal Procedure Act 2011.
Doogue J
Solicitors:
Raymond Donnelly, Christchurch
CC:
K Gray, Christchurch
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