B v Police

[2019] NZHC 2182

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-18

[2019] NZHC 2182

BETWEEN

B

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

26 August 2019

Appearances:

L S Collins for the Appellant

S N McKenzie for the Respondent

Judgment:

3 September 2019

JUDGMENT OF CULL J

[1]    This is an appeal by Mr B against his convictions and the refusal by the District Court Judge to grant him a s 106 discharge without conviction. Mr B was convicted of two charges of male assaults female,1 one charge of possession of an offensive weapon2 and one charge of intentional damage3 after a judge-alone trial in the District Court at Queenstown held on 13 March 2018.4 On 13 May 2019, the Judge dismissed

1      Crimes Act 1961, s 194(b); maximum penalty two years imprisonment.

2      Section 202A(4); maximum penalty three years imprisonment.

3      Section 269(2)(a); maximum penalty seven years imprisonment.

4      Police v [B] [2018] NZDC 7655.

B v NEW ZEALAND POLICE [2019] NZHC 2182 [3 September 2019]

Mr B’s application for a discharge without conviction, sentenced him to 12 months’ supervision and ordered him to pay $1,000 in reparation to the victim.5

[2]    Mr B now appeals against his conviction on the basis that the Judge erred in his assessment of the evidence in relation to the two male assaults female charges. He also appeals against his conviction and sentence on the basis he should have been discharged without conviction.

Judge-alone trial

[3]    Mr B and the victim had been married since 2009 and had two children together. Mr B works as a store manager in Queenstown, while Mrs B was a stay-at- home mother. Mr and Mrs B had been experiencing marital difficulties arising from Mr B’s jealousy of a male associate of Mrs B, who I will refer to as Mr F.

[4]    On an unspecified date between 5 and 15 August 2017, Mr B found a painting in a closet at their house that depicted a man and a woman, which Mrs B had painted herself. Mr B thought the woman resembled Mrs B and the man resembled Mr F. Clearly upset by this discovery, Mr B destroyed the painting by cutting it up with a pair of scissors. Mr B did not deny this particular allegation at trial, although he claimed that he thought the painting was relationship property and therefore he was entitled to destroy it. The Judge dismissed this suggestion, finding that the painting was Mrs B’s separate property.

[5]    While Mr B was destroying the painting, Mrs B attempted to intervene. Mrs B’s evidence was that Mr B threatened her with the scissors, cut her hand, pinned her to the ground and punched her. The Judge was satisfied that Mr B pinned her to the ground while holding the scissors but said he could not be sure that Mr B also threatened her with the scissors. The Judge found that Mrs B had received the cut to her hand by accident during the struggle over the painting. The Judge did not refer in his decision to Mrs B’s further allegations that she was punched while on the ground.

5      Police v [B] [2019] NZDC 8926.

[6]    Mr B’s evidence was Mrs B had assaulted him first, but the Judge said even if this had occurred, Mr B’s response was excessive. The Judge dismissed another charge that Mr B had possession of an offensive weapon, being the pair of scissors, because he could not be sure Mr B had the scissors to commit an act of violence.

[7]    About one month later, on 10 September 2017, Mrs B was preparing to attend a yoga or mediation class. Mr B believed that she was too dressed up to be attending a yoga or mediation class, and suspected that she was meeting Mr F. Mr B picked up Mrs B’s cell phone and argued with her about where she was going. An altercation followed as Mrs B attempted to take back her phone. Mrs B’s evidence was that Mr B headbutted her “full on”. The Judge could not be sure that if there was a headbutt that it was deliberate. He also found that if there was a headbutt, it was unlikely to have been hard as neither party had any visible bruising. He dismissed the charge of male assaults female brought in relation to this.

[8]    Following this altercation, Mrs B cancelled her plans for the evening. She also contacted Mr F to tell him that she would not be attending the class. Mr B detected that Mrs B had contacted Mr F and confronted her, while holding a large knife from the kitchen. Mrs B’s evidence was that Mr B was very angry and waved the knife in a downwards and threatening direction. Mrs B’s evidence was that Mr B was initially holding the knife in his right hand, then he swapped it to his left hand and punched her right jaw with his right hand.

[9]    Following the assault, police were called on Mrs B’s insistence. Mr B and Mrs B were each interviewed by different police officers. Constable Schute was the officer who interviewed Mrs B.

[10]The children were present during the incident on 10 September 2017.

[11]   The Judge found Mrs B could have been mistaken and he could have swapped the knife from his right hand to his left hand, leaving his left hand free to deliver the punch. The Judge referred to Constable Schute’s evidence of reddening he observed on Mrs B’s right jaw.

[12]   The Judge concluded it was probably not a heavy blow, which he said might be expected from a right-handed person using his left hand to strike a person opposite him. The Judge rejected Mr B’s version of events and found the charge of male assaults female proven.

District Court decision on application for discharge without conviction

[13]   The Judge looked first at the gravity of the offending, which he described as “moderately serious”. The Judge said it was “nowhere near the worst in domestic violence terms” but that it was “very much towards the top of the scale” in the context of an application for discharge without conviction. The Judge emphasised that domestic violence, both physical and psychological, is a curse in New Zealand, that it often goes undetected and that it also affects children, for whom the home should be a sanctuary. The offending involved two incidents, a month apart, and both occurred while Mr B was holding a potential weapon.

[14]   The Judge referred to non-professional references that spoke well of Mr B in a work context, and said he was a good manager. The Judge also referred to a letter from Dr Shirley, a clinical psychologist. The Judge summarised the letter by saying Mr B is a mild-mannered man who “cracked” under stress. The Judge accepted not guilty pleas had been entered in good faith, observing he had dismissed two of the charges. The Judge also accepted Mr B’s remorse, lack of previous convictions and mental health problems.

[15]   The Judge concluded that, on a scale of one to ten, the gravity of Mr B’s offending was seven, reduced from eight or nine by his personal mitigating factors.

[16]   In relation to the consequences of conviction, the Judge referred to Mr B’s immigration status, and the immigration status of Mrs B and their children. He said those issues are best left to the appropriate authorities to deal with. The Judge referred to a reference from Mr B’s employer, which did not mention any work-related consequences, and the Judge observed employers usually understand “domestic strife” and do not necessarily qualify a candidate from appointment, promotion or retention on that basis. The Judge said he did not expect Mrs B and the children would be adversely affected by Mr B receiving a conviction.

[17]   The Judge considered various cases referred to by defence counsel, but ultimately did not consider them analogous to Mr B’s offending, which he emphasised involved considerable psychological injury to the victim and her children and occurred over two occasions.6

[18]   The Judge concluded that the consequences of conviction were not out of all proportion to the gravity of the offence, referring to Police v XY, where this Court made clear that discharges without conviction do not come easily in the domestic violence setting.7

Conviction appeal

Approach on appeal

[19]   An appeal against conviction must be allowed if the appellate court is satisfied that the trial judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred, or if it is satisfied that a miscarriage of justice has occurred for any other reason.8 A miscarriage of justice is defined as any error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.9 A “real risk” is where “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.10

[20]   The Supreme Court has recently explained that a challenge to a trial judge’s assessment of the evidence is an appeal by way of rehearing conducted on the basis of the principles established in Austin, Nichols & Co Inc v Stichting Lodestar.11 That means the appellate court must reach its own view on the evidence, although the burden remains on the appellant to demonstrate that the trial judge erred in his or her

6      Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007; Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009; and Adamson v Police [2015] NZHC 2031.

7      Police v XY [2018] NZHC 414.

8      Criminal Procedure Act 2011, s 232(2).

9      Section 232(4).

10     R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].

11     Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

assessment.12 Appropriate weight must be given to advantages the trial judge would have had in assessing matters of credibility.13

Grounds of appeal

[21]   Mr B contends the Judge erred in his assessment of the evidence in relation to the two charges of male assaults female. He does not challenge his convictions for possession of an offensive weapon or intentional damage. The general tenor of Mr B’s appeal is that it was inconsistent for the Judge to reject various aspects of Mrs B’s evidence yet be satisfied beyond reasonable doubt on the male assaults female charges.

[22]   In relation to the charge arising from the events in August 2017, Mr Collins submitted on behalf of Mr B that the Judge omitted any reference in his decision to Mrs B’s allegations that Mr B threatened to cut her and also punched her in the face while he was holding her down. Mr Collins argued that it was inconsistent to accept Mrs B’s evidence that she was held down but not also accept her evidence Mr B threatened to cut her and punched her. Mr Collins submitted this omission was highly relevant because the Judge went on to say the 10 September assault crossed a threshold because it involved a knife and striking the face. Mr Collins submitted this contradicted Mrs B’s evidence that Mr B “first had a knife and also punched her face in August”.

[23]   In relation to the charge arising from the events on 10 September 2017, Mr B takes issue with the Judge concluding he assaulted Mrs B with his left hand, when Mrs B’s evidence was that he used his right hand. Mr B similarly objects to the Judge finding that he punched Mrs B while rejecting Mrs B’s evidence that he headbutted her. Mr Collins submitted the Judge failed to adequately reason why he rejected Mrs B’s evidence on these points yet found the assault charge proven.

[24]   Mr B further submits that the Judge has found against him, without full reasons and in the absence of reasons, his conviction for assault is unsafe.

12     Austin, above n 11, at [38].

13     At [38]–[40].

The Crown’s position

[25]   The Crown’s position on the August assault is the Judge was satisfied beyond reasonable doubt that Mr B assaulted Mrs B by holding her down. Mr Thomas, for the Crown, submitted it is difficult to see how a miscarriage of justice could have resulted from the Judge finding Mr B guilty of a lesser allegation of assault.

[26]   The Crown’s position on the 10 September assault is the Judge was not satisfied beyond reasonable doubt Mr B deliberately headbutted Mrs B but he was satisfied beyond reasonable doubt Mr B punched her on her right jaw because there was independent evidence from Constable Schute supporting that conclusion. In relation to which hand Mr B used to deliver the punch, the Crown’s position is the Judge was merely noting he had some doubt about which hand was used although he had no doubt the punch in fact occurred.

Analysis

[27]   I am not satisfied the Judge erred in his assessment of the evidence. It is a well-established principle that a witness’ evidence can be accepted in part and yet rejected in others. Equally, a fact finder might have a residual doubt about some of a witness’s evidence without rejecting that witness’s account entirely. This is a case where the Judge clearly retained doubt about certain particulars, although he was satisfied that some offending had definitely occurred.

[28]   The thrust of Mr Collins’ submissions during the hearing was that the Judge had found against Mr B without full reasons. He submitted that in the absence of detailed reasoning as to why he rejected Mr B’s evidence, the position is similar to that in Sena v Police, that the convictions are unsafe.14

[29]   I do not consider the decision here to be synonymous with the decision in Sena. The Supreme Court held that the reasons given by the Judge for finding the appellant guilty were inadequate because there was no reconciliation of the conflicting evidence

14     Sena v Police, above n 11.

and the Judge’s reasons were read as encompassing an implicit rejection of the appellant’s mother’s evidence.15

[30]   Here, the Judge has traversed the facts, upholding those parts of the evidence that he found to be proved beyond reasonable doubt and accepted those parts of the complainant’s evidence in preference to the defendant’s, in finding the convictions proven.

[31]   I turn now to the August assault. Contrary to Mr Collins’ assertion, Mrs B never gave evidence that Mr B was in possession of a knife during the August assault. Mrs B did give evidence for the first time during trial that Mr B slashed her painting with a knife before he cut it up with scissors, but she did not say that Mr B was holding the knife during the subsequent altercation.

[32]   Mrs B did say in cross-examination that she was punched by Mr B while he was holding her to the ground. She accepted this was the first time she had mentioned that further allegation. It is entirely plausible the Judge was satisfied beyond reasonable doubt that Mr B held Mrs B down, but he retained some residual doubt about whether Mr B had also punched her. This residual doubt may have arisen from the fact Mrs B first brought up the punch allegation during trial, unlike the allegation Mr B held her down. It would have been preferable for the Judge to have explicitly made this clear, however, I am not satisfied this means the Judge erred in accepting Mrs B’s evidence she was pinned down by Mr B.

[33]   I do not accept Mr Collins’ submission the Judge failed to mention Mrs B’s evidence Mr B threatened to her cut. The Judge said: “I am not sufficiently sure whether you explicitly threatened her with the scissors”.16 He also said the cut to Mrs B’s hand was accidental. It is clear the Judge turned his mind to Mrs B’s evidence that Mr B threatened to cut her with the scissors. The Judge was simply not satisfied of this evidence to the requisite standard. There is no inconsistency in that finding.

15     Sena v Police, above n 11, at [54].

16     Police v [B], above n 4, at [39].

[34]   In relation to the events of 10 September, Ms McKenzie referred to the judgment in Sena to support her submission that the Judge had set out his reasons for rejecting the first charge of male assaults female, but upholding the second, setting out his reasons why the second assault was upheld. Ms McKenzie submits that the Judge has provided a rational and considered basis for his conclusions on each of the assault charges, consistent with the approach in Sena, where the Court said:

[36]      … We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction.

[37]      … What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

[35]Turning, then, to this case, the Judge in summary said:

[44]  I am satisfied beyond reasonable doubt that [Mrs B] was struck and  that you had a knife with you which you used to threaten violence, even though you did not use it (fortunately) to apply physical violence on that occasion. While the pushing and shoving had not been sufficient to trigger [Mrs B’s] call for police assistance, either in August or in September, the striking of her face and the knife clearly crossed the threshold of her tolerance. I reject your version of events. I find the third charge of male assaults female

… to be proven.

[36]   There is nothing inconsistent with the Judge’s findings in relation to the 10 September assault. As the Crown pointed out, there was independent evidence supporting Mrs B’s allegation that she was punched on her right jaw. There was no such independent evidence in relation to the headbutt. In those circumstances, it was open to the Judge to hold a reasonable doubt about the headbutt. The Judge also did not completely reject Mrs B’s evidence that she was headbutted by Mr B. He simply said that, if there was a headbutt, he could not be sure it was deliberate.

[37]   Similarly, nothing turns on which hand Mr B used to punch Mrs B on her right jaw. The Judge was clearly satisfied Mr B carried out the assault in one way or another.

This conclusion was supported by the evidence her right jaw appeared visibly red to Constable Schute. It is also consistent with Mrs B’s evidence that Mr B punched her. Her evidence this occurred with his right hand and he swapped the knife to his left hand to enable him to punch her does not detract from the strength of that conclusion. The Judge was clear he rejected Mr B’s version of events.

[38]   I do not read the Judge as definitively concluding Mr B delivered the punch with his left hand. I set out the relevant passages in full:

[42]      … She thought you changed the knife from your right to your left hand. Sitting opposite you, she could have been mistaken, that you moved the knife from your left hand to your right hand. That would have left the left hand free to strike her on the right side of her jaw.

[43]      Constable Schute had noticed a reddening of the right jaw, although she could not see that in the photograph. It was probably not a heavy blow. That is consistent with only reddening, and no significant injury (eg, swelling or a cut) as might be expected from a right-handed person using his left hand to strike a person opposite and below him.

[39]   I understand the Judge to be saying Mrs B might have confused left from right when she gave evidence because of the perspective from which she had been viewing Mr B at the time of the punch. I do not understand the Judge to mean that Mrs B was mistaken about which hand she remembered seeing the knife in and seeing the punch from. The Judge was not, therefore, rejecting the accuracy of Mrs B’s evidence, only her ability to properly communicate it.

[40]   In any event, I also do not understand the Judge to be definitive in his suggestion that the assault was carried out with his left hand. He uses words like “could”, “would” and “might”, which suggest this was only a hypothesis. Certainly, the Judge thought this would explain why the punch did not result in significant injury, but at no point does the Judge indicate this was necessary to his conclusion. His emphasis was on the independent evidence of Constable Schute.

[41]   The Judge carried out a detailed exercise, in which he carefully traversed the events surrounding the first and second assaults. He was not satisfied beyond reasonable doubt that the headbutting assault was satisfied, but after detailing the

evidence, reached his conclusions on the second assault charge, as set out at [44] of his judgment.

[42]   I find that the Judge has adequately assessed the evidence, making his findings on both the oral evidence of Mr and Mrs B and the constable, together with the descriptions of the resulting redness on the complainant’s right jaw, to make his ultimate finding.

[43]   The Supreme Court accepted that imperfection of expression is practically unavoidable, particularly in oral judgments, and provided there is adequacy of reasons which address the substance of the case, including the case advanced by the losing party, the requirement for reasons will be satisfied. I am unable to uphold Mr Collins’ submissions that the convictions are unsafe.

[44]   I am not satisfied the Judge erred in his assessment of the evidence and find that he gave adequate reasons for finding the charges of male assaults female proved.

Discharge without conviction appeal

Legal principles

[45]   The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.17

[46]   The Court of Appeal has outlined the following approach for determining an application for discharge without conviction:18

(a)first, consider all the aggravating and mitigating factors relevant to the offending and the offender;

(b)second, identify the direct and indirect consequences of the conviction for the offender;

17     Criminal Procedure Act 2011, s 107.

18     Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].

(c)third, consider whether those consequences are out of all proportion to the gravity of the offence; and

(d)finally, consider whether the Court should exercise its discretion to grant a discharge.

Approach on appeal

[47]   An appeal against a refusal to discharge without conviction is an appeal against conviction and sentence. The Court will first determine the conviction appeal, before dealing with the sentence appeal. If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.19 Otherwise, the Court will deal with the sentencing appeal on usual principles.

Ground of appeal

[48]   Mr Collins submitted the Judge gave insufficient credit for Mr B’s mental health difficulties and low risk of reoffending. Mr Collins referred to the material provided by Dr Shirley, in which he explained that Mr B may have been suffering from previously undiagnosed disorders at the time of his offending and those disorders may have contributed to his offending. Mr Collins submitted the Judge placed too much emphasis on the inherent concerns about domestic violence offending and failed to weigh this against Mr B’s particular circumstances. Mr Collins relied on the same general consequences of conviction raised before the District Court, namely the stigma of a conviction, prejudice to future employment and to his immigration status.

The Crown’s position

[49]   The Crown’s position is the Judge was correct to refuse the application for discharge without conviction. There were two instances of offending, both involving a weapon, and the second incident was witnessed by the children. Mr B provided no further details in relation to the effect on his immigration status. Mr B said in his

19     Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

affidavit that his employers were incredibly supportive of him. The Judge took into account Mr B’s mental health in reducing his assessment of the gravity of the offending from an eight or nine to a seven. Accordingly, there was no error.

Discussion

[50]   The Judge correctly identified the gravity of the offending as moderately serious after accounting for the personal circumstances of Mr B. The offending itself is serious in nature, involving the following aggravating factors:

(a)There were two distinct incidents of offending.

(b)Both incidents involved a potential weapon, which placed Mrs B in serious danger.

(c)Mrs B suffered psychological harm, saying the memory of “that horrendous night … will stay with [her] forever”.

(d)The children were present during the 10 September offending and also suffered psychological harm.20

[51]   The Judge accepted the gravity of Mr B’s offending was reduced by his “personal characteristics and the person that [he is], and [his] good record”. This was clearly a reference to all the personal circumstances the Judge had been discussing, including:

(a)Non-professional references spoke highly of Mr B in a work context.

(b)Dr Shirley gave “a new insight” into aspects of Mr B’s mind, including that he is generally mild-mannered but ‘cracked’ under stress, and is now on mood stabilising medication.

(c)Mr B has no previous convictions.

20     See Heketa v Police [2018] NZHC 2204 at [25].

(d)Mr B’s not guilty pleas were entered in good faith.

(e)Mr B was remorseful.

[52]   To give credit for some of these factors could be described as generous in the circumstances, particularly the supposed remorse. As the Crown pointed out, Mr B continued to assert in his affidavit filed in support of his application for discharge without conviction that Mrs B had made the allegations falsely.

[53]   I am satisfied that the Judge gave proper consideration to Dr Shirley’s letter. Dr Shirley explained that Mr B had Type II diabetes but had haphazard control of his blood-sugar levels, which may have resulted in mood swings. Dr Shirley also noted clinical professionals had raised questions about whether Mr B might be somewhere on the Autism spectrum, although Mr B has not been formally diagnosed of this. Adults on the Autism spectrum may be prone to anger and have difficulty dealing with feelings of disturbance, anxiety and distress. Dr Shirley also referred to a depressive episode that occurred just after Mr B’s judge-alone trial but said this was a reaction to his “marital and legal circumstances”.

[54]   When assessing disproportionality, the Judge accepted a chain of causation between Mr B’s mental state and his offending was a possibility, but he said it was not the only possibility. I agree with that assessment. Dr Shirley’s letter does not support any link between Mr B’s serious depressive condition and his offending, that having occurred after trial and likely as a result of it. The diabetes and possible Autism may have caused Mr B to experience anger, but those conditions neither explain nor justify the level of violence he perpetrated against his wife. The Judge was correct not to place too much weight on this point. On the whole, the Judge’s reduction in the gravity of the offending was appropriate in the circumstances.

[55]   A further difficulty for Mr B arises from the consequences of his conviction. Mr B provided no evidence in the District Court, and has provided none on appeal, to support the contentions his employment opportunities and immigration status might be adversely affected. The authorities are clear that applicants for discharge without conviction must demonstrate specific consequences of their convictions and it is not

sufficient to speculate or point to generic consequences.21 In the usual course, the defendant is expected to provide the court with sufficient information to support the consequences contended for.22

[56]   The evidence is that Mr B works as a store manager and that his present employer is supportive of him. There is no suggestion that Mr B is looking to change employment in the immediate future. In those circumstances, Mr B’s employment does not appear to be in jeopardy and any adverse consequences for his future employment are purely speculative and generic. It is also not the role of the courts to pre-empt decisions by employers about the suitability of prospective employees.23 In any event, as the Judge said, employers do not invariably disqualify a candidate because of their convictions.

[57]   Mr B has provided no evidence of the impact his conviction might have on his immigration status. In the absence of that information, there is no room to grant a discharge without conviction on the basis of potential immigration consequences. In any event, the Court of Appeal has consistently held that any effect of conviction on immigration status is a matter best left to be dealt with by immigration authorities and it is inappropriate for the courts to usurp that role.24

[58]   Finally, stigma is a natural consequence of a conviction and will not by itself be a consequence that is out of all proportion with the gravity of the offending.25

[59]   During the hearing, Mr Collins submitted that too much weight was placed on charges of domestic violence in the context of s 106 applications. I do not uphold that submission. There is a plethora of authorities emphasising the importance of giving sentences that reflect the immense social harm caused by domestic violence offending, which means that a discharge without conviction could only be granted in the most

21     R v Taulapapa [2018] NZCA 414 at [46]; and Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [23].

22     R v Taulapapa, above n 21, at [45]; R v Hughes [2009] NZCA 546, [2009] 2 NZLR 222 at [53]; and Police v M [2013] NZHC 1101, [2013] NZAR 861 at [49] and [60]–[62].

23     Graham v Police [2018] NZCA 171 at [29].

24     Ho v R [2016] NZCA 229 at [15]; and A (CA747/10) v R [2011] NZCA 328 at [30].

25     R v Taulapapa, above n 21, at [37]–[38].

extreme circumstances.26 Mr B’s circumstances do not come close to meeting that threshold, especially considering his failure to demonstrate the specific nature and extent of the consequences of his convictions. In those circumstances, I agree with the Judge the consequences of conviction are not out of all proportion with the gravity of the offending.

Result

[60]   The appeals against conviction and against conviction and sentence are dismissed.

Cull J

Solicitors:

Preston Russell Law, Invercargill for the Respondent

26     Police v XY, above n 7, at [45]; Solicitor-General v Hutchison [2018] NZCA 16 at [27]; Kohu v Police [2013] NZHC 944 at [16]; and Heketa v Police, above n 20, at [42].