Beaver v Police

[2014] NZHC 2746

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000130 [2014] NZHC 2746

BETWEEN

DAVID BEAVER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 November 2014
Appearances:	C J A Leys for Appellant S R Jacobs for Respondent
Judgment:	5 November 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 5 November 2014 at 2.15 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Auckland

Copy to:            K Leys, Auckland

BEAVER v NZ POLICE [2014] NZHC 2746 [5 November 2014]

[1]      Mr Beaver pleaded guilty to a charge of assault  in the District Court at Manukau.  His application for a discharge without conviction was rejected by Judge G A Andrée Wiltens.  The Judge entered a conviction and fined him $350 together with Court costs.

Background

[2]      Mr Beaver initially faced charges of burglary, male assaults female and fraudulent use of a document, all relating to the breakdown in his relationship with the complainant.  The burglary charge was withdrawn at an early stage.  The male assaults female charge proceeded to a hearing.   During the course of that hearing before Judge Moses in  the Manukau  District  Court,  and following a discussion between the Bench and counsel, the police reduced the charge to simple assault to which Mr Beaver pleaded guilty.  The charge of fraudulent use of a document was dealt with at a later date. The charge was dismissed.

[3]      The agreed summary of facts to which Mr Beaver pleaded guilty recorded the complainant and Mr Beaver were in a relationship for 15 months.  They separated in late November 2012.

[4]      In the early hours of the morning on 19 December 2012 Mr Beaver turned up at the complainant’s address and started banging on her bedroom window.  She heard him but remained quiet so he would leave.   Mr Beaver was extremely angry and demanded answers as to why the complainant had disclosed information about him to his mother.  Mr Beaver uplifted a can of fly spray and emptied the contents on the victim’s face and hair.

[5]      In explanation Mr Beaver said he had sprayed the complainant with the fly spray only after she had sprayed him first.  At the time Mr Beaver was 39 years old and had never previously appeared before the Court.   He was in the process of applying to join the Corrections Department.

The District Court trial

[6]      After  hearing  the  complainant’s  evidence  and  the  first  witness  for  the defendant and before the defendant may have given evidence, the Judge discussed the position with counsel leading to the following exchange:

THE COURT:

I think madam prosecutor  bearing  in  mind  it  is  a  he  said  she  said  no independent evidence other than to the extent that it is independent, which simply might raise a doubt as to the overall circumstances, other than the fly spray incident.  Presumably if he is saying that he was sprayed first there is going to have to be some evidence as to him taking the can from her, which raises other issues.

[7]      During the lunch adjournment counsel resolved an agreed summary as above and Mr Beaver entered a guilty plea.  Counsel indicated to the Court that she had instructions to seek a s 106 discharge. The Judge’s response was:

THE COURT:

I think it is appropriate now that I have heard the facts that I deal with that at some stage.   Can I suggest that Mr Beaver, if he is wanting to be serious about a 106 if he has not already done so he attends some form of anger management.

MS LEYS:

He has done that sir. THE COURT: Okay.

[8]      A date of 17 October 2013 was then scheduled for hearing the application for discharge.  Unfortunately the Judge was unavailable that day.  In any event the using a document charge was still outstanding.   After that charge was dealt with  and dismissed the matter came before Judge Andrée Wiltens.   The Judge said Judge Moses had no recollection of the matter.

The sentence

[9]      In his judgment Judge Andrée Wiltens accepted that the assault was at the very lowest end but considered that the Prison Service should know all about the incident.  He declined the application for discharge.

The appeal

[10]     The appeal is advanced on the basis that given the circumstances of the offending, the consequences of the conviction were out of all proportion to the gravity of the offending, particularly as Mr Beaver had lost the opportunity to pursue his application to be a prison officer.

[11]     On appeal it is for this Court to reach a view whether the appellant satisfies it that a discharge should have been granted:  R v Hughes, and Austin, Nichols & Co Inc v Stichting Lodestar.1

[12]     The Court must:

(a)      identify the gravity of the offending by reference to particular facts of the case including all aggravating and mitigating factors relating to the offending and the offender;

(b)      identify the direct and indirect consequences of a conviction;  and

(c)      determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.2

Preliminary issue

[13]     A preliminary issue arises.  Ms Leys submitted that the matter should have been dealt with by Judge Moses rather than another Judge.  The short response to that is, as Ms Jacobs submitted, the allocation of Judges is an administrative matter

that is dependent on the resources available to the District Court.  To the extent it is

1      R v Hughes [2008] NZCA 546; and Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2

NZLR 141.

2      DC v R [2013] NZCA 255.

said a particular Judge should have heard a matter but did not that would be a matter for judicial review rather than a ground of appeal as such.

[14]     Nevertheless, it is unfortunate that in the present case Judge Moses did not deal with the matter.  While the Judge indicated he no longer had any memory of the matter, once he re-engaged with the file I am sure it would have become familiar to him.  The Judge had the advantage of assessing the complainant, which may have been relevant to the agreed summary that the complainant in fact first sprayed the appellant before he then sprayed her.  More significantly, from the point of view of this appeal, it is relevant that this Court now has available to it a transcript of the discussion between Judge Moses and counsel at the time the charges were reduced and the appellant changed his plea to guilty.   That records the application for discharge  was  to  be  made  and  that  the  appellant  had  completed  an  anger management course and the Judge agreed he should hear the application.

Gravity of the offending

[15]     Judge Andrée Wiltens categorised the assault as at the very lowest end.  He was right to do so.   Given the summary of facts and the  circumstances of the offending,  namely that  the complainant  sprayed  the appellant  before  he in  turn sprayed her, this is very much low level offending.

[16]     Further, the appellant’s personal circumstances are relevant.  At the age of 39 (now  40)  he  had  no  previous  convictions.    There  were  a  number  of  positive references in his support.  He had completed an anger management programme prior to the fixture and entered a guilty plea as soon as the charge was amended, all of which were factors in his favour.  These factors were not expressly referred to by the Judge in declining the application for the discharge.

The consequences of conviction

[17]     The Judge considered that there was not any evidence that a conviction for a s 9 assault would prohibit employment with the Prison Service.  The Judge went on to opine that there was not any prohibition to the appellant joining the Department of Corrections if he was to enter a conviction.  However, in doing so he was incorrect.

The only evidence available was that the appellant had passed the initial assessments and attended a scope day for employment with the Department of Corrections but then, once the Department learnt of the charges, he was subsequently telephoned and advised that his application had been declined.  I am advised by counsel and I accept that requests for written confirmation for the reason for declining his application have not been answered.

[18]   The email correspondence of the appellant’s communications with the Department confirm that final approval was subject to a criminal conviction check.  I accept Ms Leys’ submission it is a reasonable inference that if being charged meant that his application was declined, any conviction for assault would mean any future application would also be declined.   Clearly the Department is concerned about

convictions as Modise v Police3 confirms.  There is an exception for prison officers

from the operation of the Criminal Records (Clean Slate) Act 2004.4

[19]     A printout for recruitment process for the Department of Corrections also confirms that all employees of the Department of Corrections must have undergone either a New Zealand police vetting or a Ministry of Justice criminal record check and that:

NZ Police vetting will be carried out on applicants for all frontline roles. These roles involve direct and regular contact with prisoners or offenders. Many (but not all) of our frontline roles are exceptions under the Clean Slate Act.

…

Ministry of Justice criminal records checks will be carried out for all other positions at Corrections before any job offer is confirmed.

[20]     In support of his reasoning that it was important the Department was aware of the conviction the Judge referred to Commissioner of Inland Revenue v Abdale5 noting that those who employed people needed to know all about the background of them before they employ them.  However, as Ms Leys pointed out the Abdale case concerned the actions of a lawyer and the need for the disciplinary body, the New

Zealand Law Society, to be aware of the actions of its officers. Also members of the

3      Modise v Police HC Auckland CRI-2010-404-514, 25 March 2011.

4      See s 19(3)(d)(iii).

5      Commissioner of Inland Revenue v Abdale [2009] DCR 584.

public dealing with a lawyer should know if they have failed to file income tax returns.

[21]     While I accept there is force in the reasoning that the potential employer, the Department of Corrections should be aware of the issue for the reasons discussed by Ellis J in Modise, in the present case the Department is clearly aware of the incident and could require further information from the applicant if he was to reapply for a job.

Proportionality

[22]     The Judge seems to have taken the view that a conviction would have no real consequences other than the usual consequences of the conviction being entered.  It appears he considered a conviction would not be a bar to employment:

I am satisfied that the Prison Authority when they see that, and when they see the steps that you have taken will still be in a position to employ you.

However it seems clear from the information before the Court that the conviction would be a bar to the appellant’s employment as a prison officer.  For those reasons, the consequences of the conviction outweigh the gravity of the offence, having regard to the circumstances of the offence and the offender.

Result

[23]     The appeal is allowed.  The conviction and fine are quashed. The appellant is discharged without conviction.  He is to pay $350 to the complainant.  The order of

$132 Court costs still stands.   If the fine has been paid, it is to be paid by the

Registrar to the complainant.

Venning J