BB v Police

[2022] NZHC 3460

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000308

[2022] NZHC 3460

BETWEEN

BB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 December 2022
Appearances:	J L Holden and J T Tai for Appellant P R McNabb for Respondent
Judgment:	16 December 2022
Reissued:	23 February 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew

on 16 December 2022 at 11.00 am and re-issued on 23 February 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016

Registrar / Deputy Registrar Date………………………….

BB v NEW ZEALAND POLICE [2022] NZHC 3460 [16 December 2022]

Introduction

[1]    Ms BB pleaded guilty to charges of possession of an offensive weapon in a public place,1 wilful damage2 and being found in an enclosed yard without reasonable excuse.3 In the District Court, Judge A M Manuel declined her application for discharge without conviction and imposed a sentence of one year supervision in respect of all three charges.4

[2]    BB now appeals against the Judge’s refusal to discharge her without conviction. She contends that Judge Manuel overstated the gravity of the offending and failed to properly assess her mental health at the time of the offending.

[3]    In opposing the appeal, the Police say there was no error in the Judge’s approach.

The offending

[4]    The victim of BB’s offending was another woman who was not previously known to her. On the afternoon of 21 March 2021, BB was parked outside the victim’s address. It was clear that she was in an agitated state, pacing up and down the driveway and smoking. BB pressed the intercom of the address and the victim opened the gate to find BB in an angry state, demanding to know the victim’s name. BB was asked to leave the address but instead she followed the victim through the gate and began verbally abusing her, as well as flicking a cigarette butt at her.

[5]    The victim ran inside her house. BB then returned to her car to retrieve a 28- centimetre hammer from her vehicle. She used this to hit the intercom about 10 times, causing it to fall off and shatter. BB then left the victim’s address.

[6]    In her victim impact statement, the victim says that she was scared and thought that BB was going to assault her.

1      Crimes Act 1961, s 202A(4)(a). Maximum penalty three years’ imprisonment.

2      Summary Offences Act 1981, s 11(1)(a). Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

3      Summary Offences Act 1981, s 29(1)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

4      Police v [BB] [2022] NZDC 15779.

[7]    The victim’s address, where the offending took place, was BB’s previous family home and where she grew up. It is also relevant to note that BB is currently subject to a community treatment order under s 29 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. She was diagnosed with schizophrenia in 2005 and is currently receiving treatment with antipsychotic medication. BB has recognised that at the time of the offending she was experiencing a relapse of her mental health issues as a result of stress.

Legal principles – discharge without conviction

[8]    If a person pleads guilty to an offence, the court may, instead of imposing a sentence, direct that the offender be discharged without conviction.5 The Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.6

[9]    In Z (CA447/12) v R, the Court of Appeal set out a three-stage test to be applied by the Court when considering applications for a discharge without conviction.7 Firstly, when considering the gravity of the offence, the Court should consider all aggravating and mitigating factors relating to the offence and the offender. The Court should then consider the direct and indirect consequences of conviction and consider whether those consequences are out of all proportion to the gravity of the offence. Finally, if the Court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge, noting that it will be rare for the Court to refuse a discharge in such circumstances.

District Court decision

[10]   Judge Manuel began the assessment of the gravity of BB’s offending with the features of the offending itself. She recorded the submission of the Police that the offending was serious. There was unlawful entry into a dwelling place, actual or threatened violence and verbal abuse of the victim at her own property where she could

5      Sentencing Act 2002, s 106.

6      Section 107.

7      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

and should have expected to be safe. Furthermore, BB used a hammer to break the victim’s intercom.

[11]   Her Honour then considered a large range of mitigating factors relevant to BB and her offending. This included a lack of previous convictions, an early guilty plea, genuine remorse and a willingness to attend restorative justice. The Judge also considered in detail BB’s mental health and, in particular, an expert medical report by Dr Chua, a forensic psychiatrist, dated 24 February 2022. The report outlined BB’s schizophrenia and recognised that “when [BB is] unwell or subject to external stresses, trouble can ensue”.8 The Judge recognised that the date of the offending coincided with BB’s late father’s birthday and she was not taking her psychotropic mediation at that time. Taking all of these mitigating factors into account, the overall gravity of BB’s offending was assessed as moderate.9

[12]   The Judge then turned to the consequences of conviction, in particular BB’s attempts to have her medical license restored. While BB graduated with a medical degree from Otago University, she has not practiced as a doctor since 2012 or 2013, and her license has been suspended on and off for a number of years. Her Honour stated:10

The reality is [BB was] suspended by the Medical Council from practice due to mental health issues. Although it is possible that a conviction may prejudice [BB’s] attempts, all convictions are likely to have an impact on future employment prospects regardless of the type of sector.

[13]   As such, the impact on BB if convictions were to be entered against her were assessed as moderate by the Judge.11 Given that both the offending and the consequences were assessed as moderate, her Honour found that there was no disproportion between the two.12 Her Honour also stated that if she had been incorrect in this assessment, she would have been prepared to exercise her residual discretion on public interest grounds and decline to discharge without conviction. She noted that medical profession is one that depends on public trust and confidence. Her Honour

8      Police v [BB], above n 4, at [11].

9 At [12].

10 At [14].

11 At [15].

12 At [17].

accepted the submission of the Police that a person with a violent history must be assessed fully and properly by the Medical Council; it is very much in the public interest for the Council to have access to all relevant information issued by the Court.13

Approach on appeal

[14]   An appeal against the refusal to grant a discharge without conviction is an appeal against both conviction and sentence.14 As an appeal against conviction the Court must be satisfied a miscarriage of justice has occurred.15 In the context of a discharge without conviction this means a material error or that the Judge erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.16

[15]   The threshold test in s 107 is not a matter of discretion, but rather a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles.17 The Court’s discretion to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.18

Gravity of the offending

[16]   Ms Holden, on behalf of BB, submitted that the Judge had incorrectly assessed the gravity of the offending. The overall gravity of the offending should have been assessed as low, and not moderate as the Judge found. She submitted that the Judge failed properly to assess BB’s mental health at the time of offending.

[17]   Ms Holden accepted that the offending on its own could appropriately be categorised as moderate. She acknowledged the distress to the victim and that the offensive weapon charge carries a maximum penalty of three years imprisonment. However, she contended that given BB’s mental health condition and the correlation

13 At [18].

14     Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9]. See also Doyle v R [2022] NZCA 307 at [14].

15     Criminal Procedure Act 2011, s 232(2) and (3).

16     Jackson v R, above n 14, at [12].

17     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

18 At [12].

between that and her offending, the gravity of the overall offending should properly have been assessed as low.

[18]   In particular, Ms Holden submitted that one key factor that the Judge failed to consider was that at the time of the offending BB was unwell and off her medication. She referred to Dr Chua’s medical report which states that BB had presented with an “abnormal state of mind, intermittent in nature characterised by delusion, disorder of mood, cognition, perception and volition”. It was further submitted that Dr Chua was of the opinion that there was a likely nexus between BB’s mental illness and the offending, and that this correlation is sufficient to significantly mitigate the overall gravity of the offending.

[19]   The starting point in assessing the gravity of BB’s offending is looking at the features of the offending itself.19 As the Court of Appeal held in J v R,20 an assessment of gravity is informed by the culpable conduct, to be determined on an assessment of the facts, rather than the nature of the charge.

[20]   As noted by the Judge, the offending here included threatening violence, verbally abusing the victim on their own property where she was entitled to feel safe and property damage with a hammer. The hammer, being the offensive weapon, was actually used to inflict damage and in a threatening manner. There was an unlawful entry onto the property. The victim impact statement referred to the victim feeling unsafe and scared, and fearing that BB was going to assault her. It is concerning that BB did not previously know the victim and the offending took place at the victim’s own home. BB had no legitimate reason to be there. These aggravating features do not appear to be in dispute.

[21]   I accept that the offending was not at the most serious end of the scale. However, the aggravating features identified by the District Court Judge are of concern, and I find that there was no error in Judge Manuel’s characterisation of them.

19     See Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].

20     J v R [2021] NZCA 690 at [36].

[22]   It is clear that there are multiple mitigating factors arising from BB’s personal circumstances – and in particular, her mental illness. As discussed, BB has been diagnosed with schizophrenia. She has had a number inpatient admissions to a local treatment facility, Te Whetu Tawera, and a history of non-compliance with medication and treatment. BB was admitted to Te Whetu Tawera following her arrest and remained there until June 2021. She is presently under a community treatment order. These are all factors that were considered by the Judge. So too was the early guilty plea, an absence of previous convictions and an offer of restorative justice.

[23]   There is an obvious nexus between BB’s mental condition and her offending here. That is a particularly relevant and important factor in the assessment of mitigation.21 BB was experiencing a high level of stress due to various factors in her personal life at the time of her offending, as detailed in her affidavit dated 2 February 2022, most notably the birthday of her late father. The offending occurred at her old family home where she grew up, in circumstances where her father had not left a will. This caused BB financial issues and issues with her family relationships.

[24]   However, Ms Holden’s submission that the Judge did not consider BB’s mental state at the time of the offending is incorrect. On the contrary, the Judge explicitly considered BB’s mental health condition at the time of her offending, including the fact she was off her medication. It was stated:

At the time [BB was] not doing well. The date coincided with [BB’s] late father’s birthday which was a particularly difficult time for [BB] and [she was] not taking her psychotropic medication.

[25]   The Judge also referred specifically to Dr Chua’s report. Although her Honour did not use the exact phrase of a “nexus” between BB’s mental health issues and her offending, it is clear that in considering BB’s culpability, the Judge considered the impact of her mental health issues on her behaviour. In particular, by recognising that when BB is “unwell or subject to external stresses, trouble can ensue”, it is clear that the Judge recognised the correlation between the stress BB was facing at the time of

21     See Hessels v R [2020] NZHC 3019 at [60].

her offending and the relapse of her mental health issues. There is no doubt that these issues were considered by the Judge as mitigating features of BB’s offending.

[26]   Ms Holden also submitted that BB is currently subject to a community treatment order, now understood to be indefinite. She contended that this further oversight should assist in BB’s rehabilitation and reduce the risk of her reoffending. I accept that there is some merit in that submission. However, I note that BB has been under the Mental Health (Compulsory Assessment and Treatment) Act 1992 for some time and committed the present offending in these circumstances. Furthermore, she was subject to a community treatment order at the time of the District Court decision, and this was clearly recognised by the Judge.22 I also note that BB, with a medical background, was not taking her psychotropic medication at the time and Dr Chua records that she has a history of non-compliance with medication and “AWOLs” from mental health institutions.23 In the circumstances, the fact that BB is now under a community treatment order, even if it is indefinite, does not significantly mitigate the gravity of BB’s offending.

[27]   I have had regard to the various authorities referred to by Ms Holden,24 in particular J v R,25 which was submitted as being most on par with the present offending. In that case the Court of Appeal found that the end sentence of 12 months’ supervision was implicit of offending “well into the low range”. However, that finding does not apply in the same way to the present facts.

[28]   In J v R, the charge at issue was one of demanding with menace. That carries a maximum penalty of seven years imprisonment. As noted above, an assessment of gravity is informed by the culpable conduct, rather than the nature of the charge.26 In J v R, the defendant had possession of an axe but it was not brandished or used against a person or property; instead it was placed on the counter.27 It was recorded that the shop assistant, who was the victim of the offending, had no long-term adverse effects

22     Police v [BB], above n 4, at [10].

23     Judge Manuel noted at [11], in reference to the report of Dr Chua, that BB has limited insight into her mental illness and does not accept the diagnosis of schizophrenia.

24     Hessels v R, above n 21; W v Police [2019] NZHC 534.

25     J v R, above n Error! Bookmark not defined..

26     Taylor v R, above n 19, at [46]; J v R, above n 20, at [36].

27      J v R, above n 20, at [37].

and was relaxed about the defendant receiving a discharge without conviction. In comparison, BB’s offending involved the use of a hammer to violently damage property, as well as verbal abuse, and the offending occurred at the victim’s home where she was supposed to feel safe. I note also the Court of Appeal’s finding that the defendant was scrupulously compliant with her medication and maintained contact with local mental health services.28 That is not the case here.

[29]   While the Court of Appeal did recognise that the defendant’s mental health was a significant mitigating factor, it was the combination of five features that resulted in the conclusion that the gravity of the offending was low.29 The culmination of factors was described as “powerful mitigation”.30

[30]   I find that the same conclusion cannot be reached in the circumstances of this case. I find, after considering all relevant factors, including both aggravating and mitigating features of the offending and offender, that the overall gravity of the offending is appropriately considered as being moderate. I reject Ms Holden’s submission that it should be assessed as low. The Judge therefore did not err in reaching the conclusion that she did.

Consequences of conviction

[31]   The second stage of the test requires the Court to assess the direct and indirect consequences of a conviction.31 Here, the particular consequences relied upon are that a conviction would impact BB’s ability to have her medical license restored and/or affect her alternative employment prospects.

[32]   BB does not contest Judge Manuel’s assessment that the consequences of conviction are moderate in this case. I reach the same conclusion.

[33]   As the Judge recognised, convictions are not an automatic bar to BB having her license reinstated. However, a conviction will instigate an investigation by a

28 At [39].

29 At [41].

30 At [41].

31     Z CA447/12) v R, above n 7, at [27].

professional conduct committee (PCC) or require BB to undergo a health evaluation pathway.32

[34]   It must also be recognised that BB was suspended from practice by the Medical Council due to her mental health issues. Therefore, while having convictions will likely prejudice her attempts to be reinstated to some degree, they are not the only barrier for BB. I also understand that the Medical Council is aware of the circumstances of the offending in this case.

[35]   It is well-established that the Court is required to exercise caution in intervening in decisions that ought to be left to the appropriate statutory bodies. The Court should be hesitant to usurp the role of the employer or regulatory body in deciding the significance of a conviction.33 It should be left to the Medical Council to determine BB’s ability to reinstate her registration, having regard to all relevant information.

[36]   Furthermore, the employer’s right to know about a conviction must be weighed against the consequences of a conviction on a defendant, particularly where, as there is in this case, there is an independent statutory or other registration agency charged with assessing a person’s character or suitability for a particular career.34 This is relevant also to Ms Holden’s submission that a conviction of this nature may impact BB’s ability to seek other employment in the future if she cannot practice in medicine. The consequences on BB of prospective employers being informed of her criminal background does not outweigh their interest in being properly informed.

[37]The consequences of conviction are moderate in nature.

Proportionality

[38]   I have concluded that both the gravity of the offending and the consequences of the convictions are to be assessed as moderate. In these circumstances, I find that

32     See Health Practitioners Competence Assurance Act 2003, s 67A

33     Stewart v Police [2015] NZHC 165 at [30]; Maraj v Police [2016] NZCA 279 at [36].

34     R v Foox [2000] 1 NZLR 641 (CA).

the essential element of “out of all proportion” in s 106 of the Sentencing Act 2002 is not made out.

[39]   I find that the District Court Judge was correct to decline to grant BB a discharge without conviction and to conclude that the consequences of the convictions would not be out of all proportion to the gravity of the offending. There was no error in her approach.

[40]   I also agree with Judge Manuel’s conclusion that, notwithstanding the proportionality assessment, the Court retains a residual discretion to decline to grant a discharge without conviction. The public interest in the Medical Council being informed of a person’s criminal history, due to the importance of trust and confidence in the medical profession, was a relevant factor in the exercise of that discretion.

Result

[41]The appeal is dismissed.

Andrew J