Barker v The Queen
[2014] NZHC 435
•12 March 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2013-063-000782 [2014] NZHC 435
TRISTAN BARKER
v
THE QUEEN
Hearing: 25 February 2014
Appearances: W Lawson for the Appellant
A Hill for the Crown
Judgment: 12 March 2014
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 12 March 2014 at 9.00 am
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
BARKER v R [2014] NZHC 435 [12 March 2014]
Introduction
[1] The appellant, Mr Barker, appeals against a conviction entered against him by Judge M A MacKenzie in the District Court at Rotorua. Judge MacKenzie convicted Mr Barker of the offence of common assault, discharged him and directed him to make an emotional harm reparation payment to the victim in the sum of $500.
[2] Mr Barker seeks a discharge without conviction, pursuant to s 106 of the
Sentencing Act 2002.
Factual Background
[3] Mr Barker has a public media website. He uses that website to comment on various issues. His counsel, Mr Lawson, advised me that he believes in free speech, and that he has a large internet following.
[4] On 5 March 2013, Mr Barker was interviewed by the victim, a Mr Eccleston, who is a journalist for 7News, based in Sydney, Australia. The interview took place in the Government Gardens in Rotorua. The interview apparently arose because of various comments Mr Barker had posted on the internet. I was told by Mr Lawson that Mr Barker’s comments had been taken out of context by the media. I was not told what comments Mr Barker posted on the internet. I do not know why they attracted media attention.
[5] According to the summary of facts, which Mr Barker accepted when he entered his guilty plea, during the interview Mr Barker became increasingly agitated and verbally abusive towards Mr Eccleston. Things escalated, and at one stage, Mr Barker struck Mr Eccleston forcefully to his left cheek with an open palm. Mr Eccleston and his film crew then ceased the interview and began walking away. Realising that the film crew had stopped filming, Mr Barker approached Mr Eccleston again, and punched him to the back of his head.
[6] As a result of the assault, Mr Eccleston received medical attention. He suffered some pain to his jaw, and mild concussion.
[7] On 11 March 2013, Mr Barker was charged with common assault, pursuant to s 196 of the Crimes Act 1961.
[8] On 27 March 2013, Mr Barker pleaded guilty to the assault, and requested the police to consider diversion. The request was declined on 2 April 2013.
[9] On 3 April 2013, Mr Barker was remanded so that a restorative justice conference could be held. He was referred to the Mana Social Services Trust. Mr Eccleston, however, did not respond to the trust’s attempts to arrange a restorative justice conference. As a result no restorative justice process occurred, and Mr Barker was not able to directly apologise to his victim. He has, however, since written a letter of apology to him.
[10] The matter was called in the Court on 19 June 2013. Mr Barker was further remanded so that he could file an application for discharge without conviction.
[11] Mr Barker was called before the Court on 9 September 2013 for sentence.
The Judge’s Sentencing Notes
[12] Judge MacKenzie started by noting that the police did not oppose a discharge without conviction, but that Mr Eccleston did oppose it. She recorded that a victim’s views were not ordinarily relevant to sentencing, but that Mr Eccleston’s views were relevant in relation to two issues:
(a) The impact of the offending on him; and
(b)Whether any offer of amends had been made to him by Mr Barker, and whether he has accepted it.
She then reviewed the law relevant to the power to discharge without conviction under s 106 of the Sentencing Act. She discussed s 107, and how the discretion vested in the Court falls to be exercised. She referred to relevant authorities.
[13] The Judge then turned to consider the gravity of the offending. She noted that she had sought to establish with counsel the context in which the offending occurred. She noted that the context had been advanced on Mr Barker’s behalf as being relevant to his reactions and level of culpability. The Judge noted that the police had accepted the submissions which were made on Mr Barker’s behalf by Mr Lawson in this regard. She noted Mr Lawson’s submissions that Mr Barker was
18 years’ of age, that he was heavily involved with the “social media” and that he had been developing a career as a musician, entertainer and comedian. The Judge noted the submission that Mr Barker had received attention from the media which he found to be upsetting and distressing. She referred to the interview which had taken place, and the submission made on Mr Barker’s behalf that the interview had not been conducted as he had been promised. She noted that Mr Barker considered that the interviewer had inflamed the situation, and that he had become frustrated and lost self-control as a result.
[14] The Judge then referred to Mr Eccleston’s victim impact statement. She noted Mr Eccleston’s assertion in that report that he had a throbbing head, back and lower head from the second punch, and that his jaw was clicking and very sore as a result of the first hit. She also noted that Mr Eccleston said there has been some financial impact for him. She then set out a passage from the victim impact report.
[15] The Judge considered relevant aggravating and mitigating factors. Aggravating factors were the fact that actual violence was involved, and that Mr Eccleston was hit on two occasions. He was injured, and required medical attention, and the incident has had an ongoing psychological impact on Mr Eccleston. The mitigating factors included Mr Barker’s early guilty plea, his cooperation with the police, his age, that the offending was out of character and driven by what Mr Barker perceived to be negative media attention, and that Mr Barker had accepted full responsibility for the offending and was prepared to make amends. The Judge also noted that Mr Barker had written a letter of apology and expressed remorse, that he had been willing to attend a restorative justice meeting, that he had undertaken counselling from an experienced psychologist, that he had no previous convictions and was otherwise of good character, and that he had a supportive family and friends.
[16] The Judge referred to relevant authorities, and noted that the assessment required relates to the gravity of the offence committed, and not where the particular conduct sits amongst cases of its type. After considering this issue, she concluded that the assault was serious. She noted the mitigating factors and observed that while the offending was serious, it was mitigated by the positive steps Mr Barker had taken. When mitigating factors were taken into consideration, the Judge concluded that the offending was in a less serious category than might otherwise have been the case, but that nevertheless, there was a “moderate degree of gravity”. She expressed the view that the offending could not be said to be at the lowest end of the spectrum, minor, or inconsequential.
[17] Judge MacKenzie then went on to consider the direct and indirect consequences of a conviction for Mr Barker. She noted Mr Lawson’s submissions in relation to Mr Barker’s future employment, his ongoing career in the music and/or entertainment industry, the possibility that Mr Barker might obtain a basketball scholarship in the United States of America and whether or not he would be able to obtain a visa to enter that country. She also considered the potential impact on Mr Barker in terms of travel and future employment. She acknowledged that these matters could be taken into account but did not consider that there was a real and appreciable risk that any of them might adversely affect Mr Barker. The Judge did not consider that the consequences of a conviction were out of all proportion to the gravity of the offending and she declined to discharge Mr Barker without conviction. Rather, she imposed the penalty which I have noted above, noting that the conviction in itself was a significant penalty.
Submissions
[18] Mr Lawson accepted that Judge MacKenzie had correctly applied law, and the relevant tests for a discharge without conviction as set out in ss 106 and 107 of the Sentencing Act. However, he argued that, in applying the relevant tests, she made a number of errors, namely:
(a) That she took into account allegations of fact made by Mr Eccleston in the victim impact statement which did not form part of the
summary of facts, which were not accepted and which were factually incorrect.
(b)That she refused to accept context as being a mitigating factor, notwithstanding that the police did not challenge the background to the matter as alleged by Mr Barker.
(c) That she incorrectly assessed the gravity of the offence by assessing the assault itself at an unfairly high level, and failing to take into account relevant mitigating circumstances, and that she “improperly marginalised” or limited the effect of the mitigating circumstances, and failed to give appropriate weight to the direct and indirect consequences of a conviction.
[19] Mr Hall, for the Crown, submitted that Mr Barker had sought to both minimise the gravity of the offending and also exaggerate the direct and indirect consequences of a conviction. He submitted that the assault was reasonably serious, that it was an assault on an Australian journalist, who was visiting New Zealand to conduct an interview with the appellant, and that Mr Eccleston was simply doing his job. Further, Mr Hall argued that the suggested adverse effects of the conviction on travel, employment and education, were tenuous, and that Judge MacKenzie was correct to discount them.
Analysis
[20] Relevantly, s 106 of the Sentencing Act 2002 provides as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
…
[21] Section 107 in turn provides as follows:
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.
[22] As can be seen, the later section requires consideration of three factors: (a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[23] If the court is satisfied the s 107 threshold is met, the court then has a discretion to discharge under s 106. However, a favourable outcome under the s 107 test will generally lead to a favourable exercise of the s 106 discretion.
[24] An appeal against a refusal of a discharge without conviction is by way of rehearing with the appellate court making a judicial assessment in accordance with its own opinion. As the Court of Appeal noted in R v Hughes:1
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles… The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.
[25] Sections 106 and 107 have recently been considered in two decisions of the Court of Appeal. I refer to Z v R2 and DC v R.3 In these cases, the Court clarified the approach to be taken as part of the first step under the s 107 process – namely assessing the gravity of the offending. The Court made it clear that in doing so, all aggravating and mitigating factors relating to both the offending and the offender
should be taken into account.
1 R v Hughes [2009] 3 NZLR 222.
2 Z v R [2013] NZAR 142.
3 DC v R [2013] NZCA 255 at [30]–[35].
[26] Here, Mr Lawson accepted that Judge MacKenzie did not err in law. Rather, he challenged, in effect, the weight the Judge gave to the various matters which were before her.
[27] I turn first to consider the gravity of the offence. As Judge MacKenzie noted, this requires the Court to assess the gravity of the offence committed, not the gravity of the offending compared with other cases involving the same offence.4 An assessment of the gravity of the offence needs to be concentrated on the aggravating and mitigating features of the offending in question. Further, it needs to take into account mitigating features personal to the offender.
[28] First, I observe that the assault carried out by Mr Barker had a number of aggravating features. Mr Eccleston was struck twice. Both blows were to the head. The first blow was struck with an open hand but it is noted in the summary of facts that it was a forceful strike. The second blow was to the back of the head. Mr Eccleston was walking away. Mr Barker pursued him and delivered the blow. I do not know whether or not Mr Eccleston knew that he was being pursued by Mr Barker or whether he anticipated the second blow, but it was with a closed fist. The consequences could have been very serious indeed.
[29] I agree with Judge MacKenzie that, viewed in isolation, the assault was serious.
[30] Mr Lawson asserted that the Judge took into account assertions made by Mr Eccleston in the victim impact statement – in particular, assertions that Mr Barker was wearing steel capped boots, that he was in a mood which suggested he was about to “snap”, that he was very aggressive and that Mr Barker’s friends pleaded with him to walk away. Mr Lawson noted that these assertions were not in the agreed summary of facts and submitted that they should not have been contained in the victim impact statement in the first place. He submitted that Judge MacKenzie should not have referred to the victim statement in this regard and that she should not have relied on Mr Eccleston’s perspective of the offence in her assessment of its
gravity.
4 Z v R, above n 2, at [31].
[31] I accept Mr Lawson’s submission that the victim impact statement contained information about the offending which was not contained in the agreed summary of facts accepted by Mr Barker. It should not have done so. Section 17 of the Victim’s Rights Act 2002 states what a victim impact statement should contain. It can contain information about any physical injury or emotional harm suffered by the victim, any loss of or damage to the victim’s property or any other effects of the offence on the victim. The information can then be submitted to the judicial officer sentencing the
offender.5 The victim impact statement in this case went beyond that which ought
properly to have been in the victim impact statement. The Judge should have expressly recorded this and she should not have made reference to the contested parts of Mr Eccleston’s statement.6 I do not, however, consider that the parts of the victim impact statement which Mr Lawson challenges were taken into account by Judge MacKenzie in any significant way. Indeed, as I have noted above at [12], the Judge clearly noted that Mr Eccleston’s statement was relevant only to the issues she identified. Notwithstanding that parts of the victim impact statement were set out in the Judge’s notes, I am not persuaded that the Judge erred in her assessment of the
gravity of the offending. Considering the matter afresh, and ignoring the irrelevant parts of the victim impact statement, it is my view that the assault was serious in its own right. It cannot be said that Judge MacKenzie erred in her conclusion in this regard.
[32] Mr Lawson next submitted that the context in which the assault took place was an important consideration when assessing the gravity of the offence. He went on to outline that context contended for by Mr Barker. He noted that the police were invited by Judge MacKenzie to comment on submissions he had made in relation to context and asked whether there was anything they did not accept. The police sergeant dealing with the matter was not personally aware of the file, but he did indicate that one of his colleagues who was aware of it had reviewed the matter and that the background contextual matters raised by Mr Lawson before
Judge MacKenzie were accepted.
5 Victims’ Rights Act 2002, s 21.
6 See R v Proctor [2007] NZCA 289.
[33] Section 24 of the Sentencing Act provides that, in determining a sentence or otherwise disposing of a case, a Court must accept as proved all facts, express or implied, that are essential to a plea of guilty and may accept as proved, any fact that was disclosed by the evidence at the trial and any facts agreed on by the prosecutor and the offender. If necessary, the Court can hold a disputed facts hearing.
[34] I have reviewed Mr Lawson’s written submissions made available to Judge MacKenzie. Inter alia, he submitted that at the time of the offence, Mr Eccleston was attempting to cause a negative reaction from Mr Barker by his comments and questions about him, and his family. In essence, Mr Lawson was submitting that Mr Barker had been provoked.
[35] I have also read the transcript. The following exchange took place between the Judge and the sergeant prosecuting the matter for the police.
THE COURT:
All right, now Sergeant Broom please. What I need to know from the police
in terms of all the factual matters which have been put before the Court which go well beyond the summary of facts in terms of Mr Barker’s situation, both in respect of the context of the offending and secondly, the matters set out in his affidavit, is there anything that the police do not accept?
SERGEANT BROOM:
I am not that familiar with the background evidence.
THE COURT:
Well Mr Lawson has made –
SERGEANT BROOM:
I understand it’s been reviewed by another prosecutor who accepts the
background matters which have been raised Ma'am. It really comes down to the, the three conditions which are contained in the submissions by police. I
don’t have anything to confirm that [Mr Barker] has completed any of that at
this stage. Perhaps Mr Lawson might be able to confirm those, those facts.
…
THE COURT:
I just really wanting, I was giving the police an opportunity to comment on Mr Lawson’s submissions and about whether there is anything in those submissions that the police do not accept.
SERGEANT BROOM:
There is nothing that I can raise in opposition to any of that Ma'am.
[36] In her judgment, Judge MacKenzie noted that Mr Lawson had submitted on Mr Barker’s behalf that, at the time of the offence, Mr Eccleston was attempting “to cause a negative reaction from Mr Barker by his comments and questions”. She also noted that Mr Eccleston recorded in the victim impact statement something different, and that he took the view that the attack was unprovoked. The Judge noted that she had not been given a copy of the video recording taken by the film crew who were accompanying Mr Eccleston. She considered that she was not in a position to resolve the actual dispute as to whether the assault was provoked or unprovoked. She put that issue aside.
[37] In my view, Judge MacKenzie was right to do so. While it would have been open to her to have accepted that the attack was provoked by Mr Eccleston, given the provisions of s 24, she was under no obligation to do so. Rather, she had a discretion to accept as proved any fact agreed on by the prosecutor and the offender. In my view, she exercised that discretion correctly. I note the following:
(a) The police did not expressly accept Mr Lawson’s assertion that the assault was provoked by Mr Eccleston. Rather, the police did not challenge a host of submissions Mr Lawson made to the Judge. Arguably, the police were doing no more than confirming that they were not opposed to a s106 discharge, providing certain conditions were met.
(b)The Judge was faced with something of a dilemma. She knew that Mr Barker was involved in posting comments on a social media website accessible via the internet. She knew that comments made by Mr Barker had incited media interest. She did not know what those comments were. Unless the Judge knew what the comments were, it was, in my view, inappropriate to speculate that Mr Eccleston may have provoked the assault. The full context was not before the Court.
(c) Even if Mr Eccleston did put difficult questions to Mr Barker, that did not excuse the assault that took place.
[38] Considering the matter afresh, I take the view that the issue of provocation should be put to one side. I do so for the reasons I have set out above. The difficulty with Mr Lawson’s submission is that it throws as many questions as it answers. Why did a TV crew from a respected television station in Australia fly to New Zealand to interview an 18 year-old male? What had he posted on the internet to incite such media interest and to lead to the negative media coverage Mr Lawson said had taken place? Context will often be helpful in sentencing, but it needs to be the full context and not a potted version designed to favour one side or the other. I have no confidence that the context put to me by Mr Lawson was the full story. I would therefore exercise my discretion against taking into consideration the alleged provocation, notwithstanding that the police did not dispute Mr Lawson’s version of events before Judge MacKenzie.
[39] Mr Lawson then argued that Judge MacKenzie erred in her assessment of the consequences of the offending. He argued that there was a real and appreciable risk that Mr Barker’s future plans would be adversely affected by the conviction. He argued that Mr Barker was not required to show that the consequences were inevitable, or even probable, and that he was simply required to show that there was a real and appreciable risk of the consequences occurring.
[40] Mr Hill argued that the combination of the words “real” and “appreciable” are important, and that appreciable of itself denotes something that is considerable substantial, and that when the word “appreciable” is combined with the conjunctive “real and”, it is apparent that the consequences need to be rather more than something which is possible at some future point, or something which has a tenuous or vague possibility.
[41] I observe that a sentencing Judge does not have to be satisfied that the direct or indirect consequences will inevitably or probably occur. It is sufficient if he or she is satisfied that there is a real and appreciable risk of such consequences.7 I agree with Mr Hill that the words “real” and “appreciable” connote something of substance and not simply something fanciful or something which may never happen.
[42] Mr Lawson focussed on three matters which he said the Judge did not properly take into account. They were:
(a) The possibility that Mr Barker might obtain a basketball scholarship in the future;
(b) Travel to the United States; or
(c) Future employment.
[43] The Judge had before her an affidavit from Mr Barker dated 7 August 2013. In that affidavit, Mr Barker stated that in 2010–2012, he was granted a basketball scholarship in the United States, that he continues to play basketball, and that he considers that through his basketball, he may be able to obtain a basketball scholarship to study in the United States.
[44] It is clear from the affidavit that the offer of a basketball scholarship was historic and it was not current as at the date the affidavit was sworn. That point was noted by Judge MacKenzie. She recorded that she did not have any information upon which to assess whether or not a basketball scholarship was a possibility, other than Mr Barker’s assertion. She considered that there was insufficient information on which to assess the real and appreciable risk of the conviction.
[45] In my view, Judge MacKenzie was correct in this regard. The affidavit expresses nothing more than Mr Barker’s hope that he might be able to obtain a basketball scholarship to study in the United States at some time in the future. The expression of that aspiration is not sufficient to create a real or appreciable risk of the conviction having an adverse consequence.
[46] Mr Lawson suggested that Mr Barker would be required to disclose any conviction if he were to travel to the United States in the future.
[47] I accept that the possibility of the conviction being an impediment when and if Mr Barker travels overseas cannot be discounted. Mr Barker, in his affidavit, did state he directs a show in Australia which his employer hopes to market to America
and other English-speaking audiences, and that, to promote the show he will be required to travel to the United States, the United Kingdom and potentially other English-speaking countries to expand the target audience.
[48] However, there is no further information before the Court as to what is required to be disclosed by a potential traveller going into, for example, the United States or the United Kingdom, let alone whether or not disclosure of a criminal conviction for assault with a discharge would render the offender ineligible for a visa. I do not know whether such a conviction would be an automatic bar to entry. There is no evidence to support the proposition that a conviction and discharge for assault carries with it a real and appreciable risk that a visa application into another country may be denied. In my view, Judge Mackenzie was correct to discount this potential consequence.
[49] Finally, in this regard it was submitted by Mr Lawson that Mr Barker’s future employment prospects would be affected by a conviction and discharge. In this regard, Mr Barker stated in his affidavit that he was aware that potential employers, particularly in the entertainment industry, require disclosure of convictions. He stated that he would disclose any conviction and that he was concerned that disclosure would rule out the possibility of employment in the entertainment industry.
[50] There are difficulties with this assertion by Mr Barker. First, it is clear that he disclosed the conviction to his current employer. His current employer gave him a reference, and the conviction and discharge has not affected his present employment situation. It is also noteworthy that Mr Barker received a conviction and discharge, as opposed to a conviction and another sentence, such as community work. The important factor to consider is not the conviction, but the underlying
criminality involved in the assault.8
[51] Judge MacKenzie accepted that employment consequences were a relevant consideration. She considered that Mr Barker’s situation was such that there was not much in the way of evidence of any specific damage to his employment or other
prospects, and that the stigma of a conviction was simply a general consequence which flowed from a conviction. She noted that people asked to disclose whether they have criminal convictions may suffer a loss of pride, or self esteem, or at least embarrassment in having to answer the question honestly.9
[52] Once again, in my view, Judge MacKenzie did not err in this regard.
[53] Nor, in my view, did Judge MacKenzie err when she determined that the consequences of the conviction were not out of all proportion to the gravity of the offence. The offence was moderately serious. Her Honour gave proper consideration to the positive steps Mr Barker had taken since the assault, but nevertheless concluded that the offending could not be classified as minor. The consequences for Mr Barker’s future employment, travel, and education prospects were properly assessed. Mr Barker had not crystallised his future plans, and his assertion of the consequences a conviction would have was but a possibility, based on his personal aspirations. The consequences could not be said to be real or appreciable, and in my view, Judge MacKenzie was correct to discount the same.
[54] It follows that, in my view, Judge MacKenzie was entitled to determine that the consequences were not out of all proportion to the gravity of the offending, and she was right to enter the conviction against Mr Barker.
[55] The appeal is dismissed.
Wylie J
2