BETWEEN CODY PAUL STEPHENS Appellant AND NEW ZEALAND POLICE Respondent
[2023] NZHC 3690
•13 December 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-000074
[2023] NZHC 3690
BETWEEN CODY PAUL STEPHENS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 December 2023 Counsel:
J P Miller for Appellant
V E Squires for Respondent
Judgment:
13 December 2023
ORAL JUDGMENT OF RADICH J
[1] The appellant, Mr Stephens, appeals against the decision of Judge Hobbs of 11 October 2023 declining his application for discharge without conviction under s 106 of the Sentencing Act 20021 in relation to one charge of assault on a person in a family relationship.2
[2] Under s 107 of the Sentencing Act, a Court may only discharge an offender without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion with the gravity of the offence. The appellant has applied also for leave to adduce evidence in this Court which I will address shortly.
1 R v Stephens [2023] NZDC 22114.
2 Crimes Act 1961, s 194A (maximum penalty of 2 years’ imprisonment).
STEPHENS v NEW ZEALAND POLICE [2023] NZHC 3690 [13 December 2023]
What happened?
[3] Judge Hobbs found the appellant guilty of the charge of assault of a person in a family relationship following a judge-alone trial.3 In the same reserved decision, the Judge dismissed two related charges.4
[4] The Judge found the assault on a person in a family relationship charge to be proved on the following facts. The appellant and the complainant were engaged. On 11 October 2022, the appellant had been drinking and was upset and angry about matters, including about his late mother’s will. There came to be an argument between the appellant and complainant. The argument became physical, with the complainant slapping the appellant and him slapping her back. Insults were exchanged. The appellant was angry and upset and wanted the complainant to leave the property where the two were. Near the front door, the complainant put her arms around the appellant, in what she described as a hug in an attempt to calm him down. The appellant forcefully pushed her away from the door in anger and frustration to give effect to his desire for her to leave the property. Upon being pushed out of the door, the complainant fell backwards, putting her left hand out to break her fall. She suffered a fracture to her left ring finger.
[5] The appellant sought discharge without conviction primarily on the basis that his ballroom dancing career, as a competitor, as a judge and as a teacher, would be affected negatively. He acknowledged that he was currently self-employed, running a cattery in Makara that formed part of his mother’s estate. He said that he had worked at running the cattery out of necessity, first due to Covid-19 and after that to help with his mother, who became ill before passing away.
[6] Judge Hobbs declined the application because, while the offending was, to use his words, “at the lower end of the scale in terms of gravity”, any consequences to the appellant’s ability to return to ballroom dancing were regarded as being speculative, as not being a real and appreciable risk. He was not satisfied of that risk to the appellant’s ability to return.
3 R v Stephens [2023] NZDC 14837.
4 The charges were strangulation under s 189A of the Crimes Act and assault on a person in a family relationship (both based on an alleged incident said to have occurred on a separate occasion).
Leave to adduce evidence
[7] The appellant seeks to adduce an affidavit that was not part of the original application for discharge without conviction. The affidavit shows that the appellant applied to the British DanceSport Association on 13 November 2023 under the section for professional teaching and judging and that, as part of the application, he was required to provide a copy of his last available police criminal record check. It shows that the appellant received two responses by email from the Association. The first email, dated 20 November 2023, requested a current police criminal record check. The second email, also dated 20 November, also requested a current check also and indicated that the appellant was being considered for the role of New Zealand representative but that “any convictions could jeopardise [the appellant’s] membership”.
[8] The Crown does not oppose the admissibility of this further affidavit. The affidavit is relevant to the appellant’s future career prospects and its subject matter arose after the trial in the District Court. Accordingly, I am satisfied that it is in order for the affidavit to be admitted.
Approach on appeal
[9] An appeal against a refusal to discharge an applicant without conviction is an appeal against both conviction and sentence.5 Therefore, the appellant must, to succeed in the appeal, meet the test in s 232(2) of the Criminal Procedure Act 2011 by satisfying the Court that:
(a)the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)in any case, a miscarriage of justice has occurred for any reason.
[10] The section defines miscarriage of justice as any error, irregularity, or occurrence in or in relation to or affecting the trial that has either created a real risk
5 Jackson v R [2016] NZCA 627 at [15] to [16].
that the outcome of the trial was affected, has resulted in an unfair trial or has resulted in a trial that was a nullity.
[11] The appeal is to proceed by way of rehearing, with the Court to reach its own conclusion on the merits.6
Legal principles on discharge without conviction applications
[12] Section 107 of the Sentencing Act provides that a Court may only discharge an offender without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The section requires the Court to ask three sequential questions:7
(a)What is the gravity of the offence?
(b)What are the direct and indirect consequences of a conviction? and
(c)Are those consequences out of all proportion to the gravity of the offending?
[13] If the answer to (c) is “yes”, the Court may still decline to exercise its discretion to grant a discharge.
Discussion
[14] First, I consider the gravity of the offending. In doing so, the aggravating and mitigating factors relating to both the offending and the appellant himself need to be considered.8
[15] In the District Court, the Judge identified, correctly in my view, the gravity of the appellant’s offending as being “at the lower end of the scale”. The Judge found the following aggravating features of the offending: it took place in a domestic context;
6 Gaunt v Police [2017] NZCA 590 at [10], citing Austin, Nichols & Co Inc v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141.
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17]; R v Blythe [2011] NZCA 190,
[2011] 2 NZLR 620 at [14].
8 Z (CA447/12) v R [2012] NZCA 559, [2013] NZAR 142 at [25]; DC (CA47/13) v R [2013] NZCA
255 at [35]; Mathieson v Police [2019] NZCA 406 at [8(a)] and [16].
it had a significant impact on the victim; and there was “some injury” – to use those two words coined by the Judge – although the Judge acknowledged that the appellant did not intend to cause injury. The Judge discussed the “nature of the relationship” between the appellant and the complainant, his partner at the time of offending, finding the appellant was under significant stress as a result of his mother’s death, and that the relationship had become – and, again, I use the Judge’s words – “difficult and toxic”. The Judge found the following mitigating features to be present: the appellant had no previous convictions at age 38 and had completed a 16-week non-violence programme (this was compulsory but there was a report saying the appellant had engaged positively with the programme).
[16] The appellant challenges the Judge’s finding, claiming the Judge ought to have identified the gravity of the offending as “very low”. The Crown disagrees with this and says that it should not be lowered further, that the relevant factors have already been incorporated into the Judge’s assessment of the offending and that the Judge’s approach therefore was correct.
[17] The appellant submits that the Judge ought to have accounted for the conduct of the complainant as a mitigating factor. The Crown disagrees with this. The appellant says that wrapping her arms against the appellant , after refusing to leave the property despite requests to do so, precipitated, effectively, his reaction in pushing her away and so reduced his culpability. I do not accept this submission. Under s 9(2)(c) of the Sentencing Act, the Court must take into account the conduct of the victim as a mitigating factor to the extent it is applicable. The conduct of the victim will be an applicable mitigating factor when it materially reduces the culpability of the offender.9
[18] The appellant refers to Gaunt v Police, where the Court of Appeal held that the victim’s conduct in contributing to the altercation between the victim and the offender in that case was a mitigating factor to be taken into account, in circumstances where the offender had committed an assault in a domestic context but where both parties were “equally culpable in the overall context of the altercation, and there does not appear to have been any evidence explaining why [the victim] was not also charged”.10
9 Wairau v R [2015] NZCA 215 at [28]–[32].
10 Gaunt v Police, above n 6, at [12].
[19] Given the domestic offending context in which this played out in the case before us today, I find the Judge was right not to apportion blame to the victim in circumstances where, unlike in Gaunt, it cannot be said that both parties were equally culpable nor that the victim ought to have been charged for her actions. Her actions, in what she described as a hug given in an attempt to de-escalate the situation and calm the appellant down, were not threatening or provocative and did not reduce the appellant’s culpability in any material way.
[20] The appellant submits also that the Judge ought to have exercised greater caution in accepting that there was a “significant impact” on the complainant. The victim impact statement contained language such as “evil and violent”, “vicious abuse” that “still haunts [the victim] everyday by flashbacks and nightmares”. The appellant submits this language is incongruous with the sole charge proven, that the appellant forcefully pushed the victim while not intending to cause any harm, and that, to the extent the statement was directed towards matters outside of the proven charge, it should be put to one side. I do not accept that position entirely. The victim was entitled to put to the Court in her statement how the action made her feel and the Judge was entitled to find, based on that statement, that the impact on her was significant.
[21] The appellant submits further that the Judge ought to have considered the stress on the appellant as a mitigating factor. However, while the Judge did not list this as a mitigating factor expressly, he did have regard to the appellant’s mental state and used it as a mitigating factor implicitly in coming to his conclusion on the gravity of the offending.
[22] I turn now to the direct and indirect consequences of a conviction. The Judge said:
[27] I have to say with respect Mr Stephens that I find your application underwhelming in terms of the material that you have provided. There is nothing from any of these organisations to suggest that you would be prohibited from participating in competitions either as a judge or competitor
…
[28] It seems to me that the consequences that you refer to are speculative and I simply do not accept that there is a real and appreciable risk of these consequences occurring and, therefore, your application to be discharged without conviction is declined.
[23] The Crown says that the potential impact on Mr Stephens’ return to professional dancing identified in the new evidence does not outweigh the gravity of the offending and does not advance matters sufficiently.
[24] The new evidence shows clearly in my view that convictions can disqualify someone from membership of the organisations of which the appellant would need to be a part in order to pursue his chosen career. It provides evidence that there is a real and appreciable risk that the appellant’s planned return to teaching, judging and competing in ballroom dancing would be impacted negatively by a conviction.
[25] While, necessarily, professional bodies and employers will have an interest in any offending and while an impact on a person’s employment prospects will ordinarily be viewed as the usual consequence of committing a criminal offence,11 common sense does indicate to me that a conviction of assault on a person in a family relationship, which carries a maximum imprisonment of two years, is likely to be regarded by an employer or professional association as speaking to the appellant’s character and lead to adverse consequences without further inquiry as to the circumstances of the offending. This is, in my view, particularly relevant both in the field of ballroom dancing generally, where safe partnerships are essential, and in the role of coaching or teaching specifically, where both the teacher’s trustworthiness and appearance of trustworthiness is important.
[26] Accordingly, the consequences are material. They well exceed in my view consequences that are to be expected in the ordinary course.
[27] The appellant makes the point that Court of Appeal authority does not require anything directly in evidence from an employer and that the Court should not be over- scrupulous. I do not pursue that point because I am satisfied with the terms and nature of the evidence that is before me and, as I say, see no error in the approach the Judge took without that evidence. The Crown says that the appellant should be explaining the facts and circumstances of the offending to the dance organisations themselves. I do acknowledge that submission but I need now to turn to the points that I have made about that evidence when considering matters of proportionality.
11 R v Taulapapa [2018] NZCA 414 at [42(a)].
[28] I need to consider whether the consequences are out of all proportion to the gravity of the offending. On balance, I consider that they are. In circumstances in which a professional association – membership of which is essential to a person’s work– and potential employers are likely to view a conviction as speaking to a person’s character and to reject the person as a consequence, a discharge may be warranted if it does not fairly reflect the level of gravity of offending.12 In my view, a domestic violence conviction generally indicates a level of seriousness that exceeds the level of violence that was in play here. The offending was at a low level of gravity, and I accept the Judge’s findings on that. But I do believe that the consequences of a conviction based upon the evidence now before the Court would be out of all proportion to the gravity of offending and I would exercise the Court’s discretion to grant the discharge without conviction.
[29] In terms of s 232(2) of the Criminal Justice Act, it is not the case that the learned District Court Judge erred in his assessment of the evidence. However, on the basis of the evidence that is now available, and in its application to the circumstances of the case as a whole, I am satisfied that a miscarriage of justice would occur and has occurred in the circumstances.
Conclusion
[30]The appeal is allowed. The appellant is discharged without conviction.
Radich J
Solicitors:
John Miller Law, Wellington for Appellant Crown Solicitor, Wellington for Respondent
12 R v Taulapapa, above n 11, at [42(b)], citing Brown v R [2012] NZCA 197 at [31].
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