B v Police HC Invercargill Cri-2010-425-21

[2010] NZHC 1611

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2010-425-000021

B

Appellant

v

POLICE

Respondent

Hearing:         31 August 2010

1 September 2010

Appearances: W N Dawkins for Appellant

M G Sinclair for Respondent

Judgment:      1 September 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      The appellant, Mr B  , pleaded guilty in the District Court to two charges:

a charge of threatening to kill and male assaults female.

[2]      At sentencing, he asked the District Court Judge to discharge him without conviction.

[3]      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,

B V POLICE HC INV CRI-2010-425-000021  1 September 2010

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.

[4]      The District Court Judge in this case was not so satisfied, and accordingly dismissed Mr B  ’s application.

[5]      While the Judge was not satisfied that the consequences were out of all proportion to the gravity of the offence, he did nevertheless accept that there were likely to be real consequences for Mr B   as a result of the convictions, and accordingly found that the principles and purposes of sentencing would be met by conviction and an order for reparation, without more.

Grounds of appeal

[6]      On appeal, Mr B   now seeks to overturn the Judge’s decision on his s 106 application, and does so by way of an appeal against conviction.

[7]      Mr B  , through counsel, contends that the Judge erred in his application of the disproportionality test under s 107 in that the Judge is said to have overstated the gravity of the offending and understated the direct and indirect consequences of conviction.

Discussion

[8]      Following the leading Court of Appeal decision in R v Hughes [2009] 3

NZLR 222, the issue of whether a Court is satisfied the s 107 threshold has been met is a matter requiring judicial assessment which can be subject to appeal on normal appellate  principles.    What  that  means  is  that  I am  required  to  reach  my own independent assessment rather than treating this as an appeal against the exercise of a discretion.

[9]      I approach that task on the basis of the following principles, which can be distilled from the various authorities, and in particular Hughes:

i)Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender (Hughes at [41]).

ii)Those principles and purposes of sentencing include, as Mr Dawkins emphasises, the obligation to impose the least restrictive outcome available in the circumstances.

iii)The Court is required to undertake a three-step approach.   It considers:

•   the gravity of the offending;

•   the consequences of the conviction;

•    whether the consequences are out of all proportion to the gravity of the offence.

iv)While s 107 refers to the gravity of the offence, offences are not to be considered in a vacuum.  It is necessary to look at the offending itself and the reaction of the offender to it, as well as matters that may generally affect the Court’s assessment of culpability, including the actions of the offender immediately after the offending.  It may also include consequences already suffered: see Delaney & Ors v Police HC Wellington CRI-

2005-485-000022, 22 April 2005, Miller J; Waight v Police HC Auckland CRI-2006-404-000465, 24 May 2007, Winkelmann J.

v)There is no onus on Mr B   to establish that the disproportionality test has been satisfied.

vi)The more serious the offending, the less likely a discharge can be granted.  Conversely, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied: see Currie v Police HC Auckland CRI-

2008-404-000307, 27 May 2009, Potter J, R v Iosefa [2008] NZCA 453.

vii)It is not necessary for the Court to be satisfied that direct and indirect consequences would inevitably or probably occur. Rather, it is sufficient, if the Court is satisfied there is a real and appreciable risk, such consequences would occur.

viii)The fact an offence lies within a serious category is not of itself decisive.  There are cases involving the offences of male assaults female and threatening to kill which have resulted in discharges without conviction.

[10]     Reminding myself of all those principles, I now turn to consider the facts of this case.

The gravity of the offending

[11]     The facts of the offending are as follows.

[12]     On 30 April 2010 Mr B   was at the Invercargill address of his female partner.   He had consumed a bottle of wine while preparing dinner.   Some issue arose.   The partner refused to engage in an argument and Mr B   said he was going to leave in the car.  The partner was concerned he had consumed too much alcohol to be driving and she refused to let him have the keys.  Mr B   then picked up a knife, pointed it at the partner’s throat, grabbed her by her clothing and made her release the keys.  He threatened to kill her several times.

[13]     The victim went to her bedroom.  Mr B   followed, still holding the knife. He stood over the victim, pointing the knife at her and saying words to the effect he had no option, he was going to die so why should he not take her with him.  He then put down the knife and slapped the victim about the face.  She attempted to defend herself.  When he stopped, he told her she had made him angry and it was her fault.

[14]     A friend of the victim arrived at the address, and while the friend was ringing the police, Mr B   made a pistol gesture with his hand, stating to the victim he was going to get her and shoot her.

[15]     When located by police, Mr B   admitted the slapping, but falsely denied threatening to kill or using a knife.

[16]     As a result of being hit, the victim suffered a cut lip and bruising to her face, neck and hand.  It seems she was also unable to use her right hand for some days after the incident.

[17]     In  the  victim  impact  report,  the  victim  says  that  during  the  assault  she believed she was going to die.   Since the incident, she has become fearful and anxious, family and friends having to take turns staying with her, because for the first time she feels frightened in her own home.  She says she has to take sleeping pills to be able to get to sleep.   The victim adamantly opposes Mr B   being discharged without conviction.

[18]     I identify the aggravating factors of this offending as follows:

i)        The use of a weapon.

ii)       The fact that the threats were made repeatedly. iii)      The fact that actual violence was used.

iv)      The effect on the victim.

[19]     While emphasising that the knife never touched the victim and that Mr B   did put the knife down before slapping her, Mr Dawkins responsibly accepts that this was serious violence.

[20]     I note, too, that unlike several of the cases cited to me by Mr Dawkins, this assault was entirely unprovoked.  Further, Mr B   initially lied to the police and blamed the victim at the time.  I further note this incident occurred in the victim’s own home, albeit Mr B   was there with her consent.

[21]     Ms Sinclair has also pointed out to me that as the victim would have known, Mr B   had access to firearms and was a good shooter.   His threat that he was going to get her and shoot her, when he made his pistol gesture, would therefore have had a very significant effect.

[22]     In terms of sentencing principles and purposes, I consider there are important considerations of denunciation and deterrence that apply.

[23]     Against the gravity of the offending, there are mitigating factors that must be weighed in the balance that are personal to Mr B  :

i)The fact that at age 60 he has no previous convictions.   Mr Dawkins submits this demonstrates the behaviour can fairly be described as aberrant.

ii)       He pleaded guilty at an early stage.

iii)      He was remorseful and has made an offer of amends.

iv)At the time of the incident Mr B   was tired and under considerable stress due to financial pressures and health issues. The previous year he had been diagnosed with prostate cancer and was suffering from high blood pressure.   Although the prostate cancer was under control, the previous month (March

2010) he had received some concerning test results.

v)He has taken steps to address his offending behaviour by consulting a psychologist/counsellor, the Christchurch City Mission, and participating in two Stopping Violence programmes.

vi)      He can properly be assessed as unlikely to reoffend.

[24]     Having regard to those personal mitigating factors, my assessment of the overall gravity of the offending is that notwithstanding the mitigating features, the offending must nevertheless still properly be categorised as serious offending.  There are, as I have said, very important considerations of denunciation and general deterrence at play.

The direct and indirect consequences of conviction

[25]     The information before me shows that Mr B   is an entrepreneur and a frequent overseas traveller.

[26]     It  is  submitted  that  there  is  a  real  and  appreciable  risk  the  convictions, especially the conviction for threatening to kill, will restrict his ability to travel overseas, which in turn will impact on his business interests in China and Australia, and also impact on his ability to participate in international clay shooting competitions,  train  overseas  and  fulfil  his aspirations  to  participate  in  the  2012

Olympics.

[27]     Secondly, it is said there is a real and appreciable risk the convictions will jeopardise the renewal of his real estate licence and his vehicle licence endorsement, all of which have potential implications for his ability to earn a livelihood.

[28]     Mr Dawkins has provided me with an updating affidavit from Mr B   which says that some of these concerns have actually materialised in that he has received  letters  from  two  entities  with  which  he  has  business  associations, terminating their association with him because of the convictions and the travel implications.  It seems that while he will still be able to enter Australia, albeit with some difficulty, entry into the United States and China may be more problematic.

[29]     In the District Court, the Judge had this to say about those matters:

[27]      I think that it is appropriate that a conviction be entered against your name  in  respect  of  these  two  charges.  I  am  not  satisfied  that  the consequences of a conviction would be out of all proportion to the gravity of the offending. Domestic violence is a serious problem in New Zealand. There have in recent times been a significant media campaign saying that violence is not right. You went totally overboard Mr B   on this night with the violence, the threats and the use of the knife. As far as the effect of a conviction on your licences that you have, the firearms licence, the real estate licence, the vehicle licences, in my view that is a matter which is for the appropriate authorities to consider. As far as your ability to travel to Dallas, that is a consequence which I think you need to bear as a result of a conviction. As far as the 2012 Olympics are concerned, that is something which in my assessment of the material before me is a remote possibility and something which clearly might happen, but I would not be prepared that you should be discharged without conviction on that basis.

[28]     I accept that there may very well be real business and financial consequences as a result of convictions being entered and the possibility of your inability to travel. I accept that you will need to disclose those convictions. That is up to the individual countries to consider in terms of whether or not they consider that you are a fit and proper person.

[30]     Mr Dawkins was critical of that approach, characterising it essentially as an abdication  of  the  Court’s  responsibility  (although  he  did  not  use  those  words himself) and also referring to Martens v Police HC Palmerston North CRI-2010-454-

000014, 13 May 2010, Mallon J and Smoothy v Police HC Invercargill CRI-2008-

425-000034, 17 December 2008, Chisholm J.

[31]     However, the approach taken by the District Court does have some support in a number of other authorities.  It has been said the Court should be careful before effectively concealing, from bodies with an interest in the matter, the fact of the conviction: see Steventon v Police HC Auckland A108/01, 2 November 2001, Chambers J at [22]:

It is generally better for the offending to be noted by way of a conviction. It is then up to the offender to explain to those authorities why in the particular circumstances the conviction should be looked one [sic] with a benevolent eye.

See also the approach taken in Currie at [50].

[32]     As regards the skeet shooting consequences, in my view there has been an element of overstatement.   Mr B  ’s affidavits gave the impression that he was performing at an elite level and as such was a genuine contender for a place at the Olympics, or his aspirations to perform at the Olympics were realistic and well- founded.  It appears that may well be something of a stretch in that while he is an accomplished skeet shooter, he is far from being at the elite level at this stage.   I therefore do not place significant weight on the implications for him relating to his participation in the sport of skeet shooting.

[33]     On the other hand, I do however accept that there is a real and appreciable risk – indeed an actuality – that the convictions will have significant consequences for him in terms of his business interests.

Are the direct and indirect consequences of a conviction out of all proportion to the gravity of the offence?

[34]     Under this head it is appropriate to consider consequences already suffered. Of these there are:

a)        matters of publicity;

b)        the revocation of his firearms licence and the seizure of his firearms –

both matters which occurred independently of conviction;

c)       the termination of his relationship with the victim, which has meant he will no longer be part of a joint restaurant business they were working together on.

[35]     Under this head, too, it is relevant to consider the purposes and principles of sentencing.  Again, the importance of general deterrence and denunciation, as well as the obligation to impose the least restrictive outcome are applicable in the circumstances.

[36]     Mr Dawkins submits that the consequences for Mr B   are multifarious because he is an entrepreneur and because he has so many interests, and together,

combined with all the steps he has taken to address his offending and the other personal mitigating factors I have already mentioned, make this a special case.

[37]     The test is whether the consequences are out of all proportion to the gravity of the offending.   I emphasise the statutory phrase is “out of all proportion to the gravity of the offending” (emphasis added).

[38]     Ultimately, it is a value judgment.

[39]     I have carefully considered everything Mr Dawkins has said, and taken his submissions into account.  As the District Court Judge noted, Mr Dawkins has said everything could possibly be said and he has said it well.  Mr B   has been well represented.

[40]     However, after balancing the various factors as I must, I have come to the conclusion that notwithstanding the significant impact of the convictions on Mr B  , the disproportionality test in s 107 is not satisfied.  This was serious domestic violence involving the use of a knife.

[41]     It follows from what I have said that the appeal must be dismissed and the decision of the District Court Judge confirmed.  Like the District Court Judge, I am not satisfied that the consequences of conviction are out of all proportion to the gravity of the offending.

Solicitors:

Bill Dawkins Law, Invercargill

Crown Solicitor’s Office, Invercargill