Bishop v Police
[2022] NZHC 591
•29 March 2022
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA
AHURIRI ROHE
CRI-2022-441-000002
[2022] NZHC 591
QUENTIN BISHOP v
POLICE
Hearing: 23 March 2022 Appearances:
S Jefferson for the Appellant M Mitchell for the Respondent
Judgment:
29 March 2022
JUDGMENT OF GRICE J
(Conviction and sentence appeal)
Introduction
[1] Mr Quentin Bishop was charged with assault with intent to injure;1 assault person in a family relationship;2 and two charges of breaching a protection order.3 He was convicted by a Judge-alone trial only on the charges of assaulting with intent to injure, assaulting a person in a family relationship and one breach of protection order. He was sentenced to nine months’ supervision. He appeals both his convictions and sentence. Mr Bishop says the Judge erred in finding the charges proved, on the basis that the evidence given at the trial by the complainant was insufficient to find the
1 Crimes Act 1961, s 193 — maximum penalty three years’ imprisonment.
2 Section 194A — maximum penalty two years’ imprisonment.
3 Family Violence Act 2018, ss 90(b) and 112(1)(a) — maximum penalty three years’ imprisonment.
BISHOP v POLICE [2022] NZHC 591 [29 March 2022]
charges proved. Alternatively, Mr Bishop submits the Judge should have granted him a discharge without conviction.4
Background
[2] The appellant was in a relationship with the complainant. At around 12.30pm on 28 November 2020, the two were driving together, the appellant driving the complainant’s vehicle. An argument broke out and the appellant pulled over to the side of the road. With one hand on the steering wheel, it is said that he used the other to twist the complainant’s arm, in what was described as a “Chinese burn”. It is alleged the appellant then grabbed the complainant at the top of the knee in what was described as a “Charlie horse”. There were no lasting bruises or marks for either incident.
[3] The two returned to the appellant’s house. It was alleged the appellant took the complainant’s phone and car keys. The complainant waited in the car before going into the appellant’s house to locate her keys and phone. The complainant located the keys in the appellant’s bedroom. There was another physical incident. The complainant used a plastic drink bottle to try to hit the appellant. The appellant then used his hand around the complainant’s neck, pushed her to the wall and bit her shoulder. Although there was no broken skin, bruising later developed and marks could faintly be seen.
[4] Following these events, the complainant applied for and was granted a temporary protection order, which was in place at the time of two incidents giving rise to breach of protection order charges.
[5] On 17 December 2020, the complainant was finishing work at a supermarket. The complainant became panicked because she had seen the appellant’s vehicle. The complainant had spent a lot of time in that vehicle and knew it well. Although she could not see the registration plate, she felt certain it was the appellant’s vehicle. The vehicle then drove off quickly.
4 Pursuant to Sentencing Act 2002, s 106.
[6] On 30 December 2020, the complainant was parked in her vehicle at a place it was accepted was on a route the appellant would ordinarily take between his workplace and his home. The complainant saw the appellant in a car that was not the appellant’s usual vehicle and said the appellant made a gesture of using a thumb and finger to call her.
Lower court decision
[7] The appellant was convicted in the District Court on 20 September 2021 following a Judge-alone trial.5
[8] The appellant disputed the assault charges, saying that the incidents in the car never happened and the biting was not caused deliberately by him in the context of an assault but rather as consensual activity as part of their sexual relationship. The complainant emphatically denied that suggestion.
[9] The Judge acknowledged the appellant had chosen not to give evidence, as was his right, and this choice could not form the basis of an adverse finding on the charges.6 It was for the police to prove each allegation set out in the charges beyond reasonable doubt. The Judge then stated:
[17] What I am left with, however, is the evidence of [the complainant]. While I accept that there may have been some mixed messages in the evidence that she gave, [the complainant] was nevertheless, in my assessment, a credible witness. She was clearly, and she accepted, emotional as a result of the events that took place on the afternoon and evening of 28 November 2020. She clearly decided that that was to be the end of the relationship between herself and Mr Bishop and the actions she took over the coming days and weeks show that that was the case.
[18] What I am left with, however, is her evidence and her evidence is sufficient, in my view, to prove the allegations in relation to the offending. While there may be an issue over [the complainant] having some skin complaint which could cause redness, her clear evidence is that her arm was twisted, she was pinched above the knee in a Charlie horse type manoeuvre, that she was bitten on the shoulder, and that [the appellant] pushed her to the neck and then bit her cheek.
5 Police v Bishop [2021] NZDC 22013.
6 At [16].
[10] Accordingly, the Judge found the assault charge allegations to be proven beyond reasonable doubt.
[11] In terms of the breach of protection order charge for the 17 December 2020 incident, the Judge acknowledged there were certain differences between the evidence given by the complainant and the evidence given by a witness.7 However, the Judge said nothing turned on that. The Judge accepted the complainant had seen a vehicle she knew well and accepted it was the vehicle belonging to and being driven by the appellant. Accordingly, he found that the charge for breach of protection order was proven beyond reasonable doubt.8
[12] In relation to the 30 December 2020 incident, the Judge was of the view that it was nothing more than incidental contact.9 He noted it was accepted there had been ongoing discussions, telephone calls and text messaging between the complainant and appellant. Therefore, in the circumstances of this case, the gesture alleged was not a breach of the protection order.10 In relation to this charge, the Judge found the appellant not guilty.11
Sentencing
[13] Having been found guilty of the three charges, Mr Bishop then applied for a discharge without conviction. On 19 January 2022, the Judge declined the application for discharge without conviction.12 The Judge sentenced the appellant to supervision for nine months on the condition that the appellant undertake such counselling and/or treatment as directed by a probation officer.13
[14] The Judge considered the s 107 threshold for granting a discharge without conviction was not met.14 He characterised the gravity of the offending as at the low end of moderate, moderate because it was family violence but at the low end because
7 At [22].
8 At [23].
9 At [26].
10 At [26].
11 At [27].
12 Police v Bishop [2022] NZDC 696.
13 At [19] and [21].
14 At [19].
of the actual extent of the violence employed.15 There was family violence over the course of the day but it did not lead to any lasting injuries but had left the complainant fearful and under stress so there was therefore some emotional scarring. In terms of the consequences of a conviction, the principal submission was that a criminal conviction risked the deterioration of the appellant’s mental health stability, including anxiety, fear, suicidality, anhedonia and isolation.16 The Judge was not satisfied that the consequences of a conviction were anything more than the normal consequences of a conviction of this sort and were not out of all proportion to the gravity of the offending.17
[15] The Judge acknowledged the efforts the appellant had made to deal with his issues and that he was clearly now moving forward.18 The Judge noted the appellant had sought counselling assistance for ongoing mental health and overall wellness needs.19 He accepted that to some extent the appellant may not have appreciated the effect of his actions on the complainant.20
[16] The Judge said he had “considered carefully” whether the consequences of conviction were anything more than normal consequences of a conviction of this sort. He was not satisfied that they were and that even if they were, they were not out of all proportion to the gravity of the offending.21 Accordingly, the Judge considered the fact of a conviction and some ongoing supervision would be sufficient to meet the purposes and principles of sentencing to reflect the offending and to assist the appellant in his further rehabilitation.22
15 At [12].
16 At [13] and [15].
17 At [19].
18 At [16].
19 At [10].
20 At [10].
21 At [19].
22 At [20].
Submissions
Appellant's submissions
[17] The appellant appeals against both the conviction and the refusal to grant a discharge without conviction. In relation to the conviction, the appellant submits that the trial Judge erred in finding that the complainant’s evidence was credible and reliable. In relation to the refusal to discharge without conviction, the appellant submits that the Judge erred in finding that the consequences of conviction for the appellant were nothing more than the normal consequences of conviction and were not out of all proportion to the gravity of the offending.
[18] Mr Jefferson for the appellant points out that the offending was at the lower moderate end and weighed against that is the uncontested information in the medical reports. He says the stress was illustrated by the fact that Mr Bishop apparently suffered a small stroke in the period leading up to sentencing.
Respondent's submissions
[19] The respondent opposes both appeals. In relation to the conviction, the respondent states that there is nothing raised by the appellant that would demonstrate an error by the Judge in assessing the complainant as a credible and reliable witness. In relation to the refusal to grant a discharge without conviction, the respondent submits that there was no error in the Judge’s decision to decline to grant the application. The respondent says that even if the fact of a conviction in itself would aggravate the appellant’s mental health issues, this would not be sufficient to meet the threshold of a consequence that is “out of all proportion” to the gravity of the offending.
[20] Ms Mitchell, for the respondent, submitted that the causal link between the entry of a conviction and the aggravation of the respondent’s health issues was not made out. The stressing factors were the events leading up to and the trial. These were behind Mr Bishop now.
Conviction appeal
Approach to appeal
[21] Under s 229 of the Criminal Procedure Act 2011, a person convicted of an offence has a right to appeal that conviction.23 An appeal against conviction is a general appeal and proceeds by way of rehearing.24 The appellate court is entitled to its own opinion about the facts and the law.25
[22] In the case of a Judge-alone trial, as here, a conviction appeal must be allowed if the Court is satisfied that a miscarriage of justice has occurred, either because the Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred, or for any other reason.26
[23] A “miscarriage of justice” means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.27
[24]A “real risk” the outcome was affected exists when:28
… there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong … an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of a real risk that this is so will suffice.
[25] An unfair trial exists when errors are prejudicial or unacceptably give rise to the appearance of unfairness. It is not every departure from good practice which renders a trial unfair.29 A miscarriage is “more than an inconsequential or immaterial mistake or irregularity”.30 Rather, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so
23 Criminal Procedure Act 2011, s 229.
24 Section 232.
25 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
26 Criminal Procedure Act, s 232(2).
27 Section 232(4).
28 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
29 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
30 Matenga v R [2009] NZSC 18 at [30].
irremediable” that an appellate Court must condemn the trial as unfair and quash the decision.31
[26] If the appeal is allowed, the Court must set aside the conviction.32 The Court has a broad discretion as to next steps,33 including the ability to direct that a judgment of acquittal be entered, to direct that a new trial be held, to substitute a conviction for a different offence or to make any other order it considers justice requires.34
Analysis
Assaults
[27] The appellant says the complainant was not credible or reliable. The appellant says the complainant’s evidence was unimpressive and undermined by her selective disclosures in evidence-in-chief, which were then exposed in cross-examination.
[28] The appellant submits that there are inconsistencies in the complainant’s evidence. For instance:
(a)The absence of any tangible evidence of injury that would have naturally been evident from the type of assaults alleged to have happened. The appellant points out that the complainant did not seek or receive any medical attention or treatment and made no complaint to the police until 1 December 2020, that is three days after the alleged assaults.
(b)While the complainant produced photographs showing redness on her arm and face which she stated were caused by the appellant biting her, other photographs of the complainant taken before the alleged assaults also show redness of the complainant’s skin. In cross-examination the complainant accepted she does ordinarily suffer from redness of the face.
31 R v Condon at [78], citing with approval Randall v R at [28].
32 Criminal Procedure Act, s 233(2).
33 Section 233.
34 Section 233(3).
(c)When demonstrating at trial how the appellant allegedly bit her on the cheek, the complainant pointed to the wrong side of her face, with the prosecutor having to correct her.
(d)The complainant said that during the incident the appellant had her phone and keys and would not return them. However, the appellant points out that texts were sent between the two during the time of the alleged offending. This is said to completely undermine the complainant’s evidence on this point.
[29] The appellant also submits that the complainant’s evidence was selective. For instance:
(a)The complainant said that the appellant followed the complainant to her house after the complainant had left the appellant’s house and showed up at the complainant’s house about three to five minutes after she did. The appellant states that the complainant made no mention of having sent a text message to the appellant at 3.38pm suggesting that she was going to kill herself, nor of the 13 text messages and 17 unanswered calls from the appellant to the complainant in response. The appellant submits this deliberate selection was done to mislead the Court.
(b)Messaging between the complainant and the appellant continued into the evening of the assault and over the following days. The complainant stated she decided to go to the police on 30 November 2020 as the appellant had said in text messages and in a voicemail that he was coming for her and threatened her. However, despite this the complainant did not produce any text messaging between herself and the appellant. The appellant submits that the suggestions of the appellant “coming for” and “threatening” the complainant related to a conversation which came out only in cross-examination and involved messages which were much less strong than the threats they were made out to be.
(c)The complainant did not disclose that she continued to contact the appellant even after she had obtained a temporary protection order against him. This came out only in cross-examination.
[30] The appellant submits these demonstrate the complainant’s evidence was neither credible nor reliable and so in accepting the complainant’s evidence the Judge clearly erred.
[31] The Judge at trial had the advantage of evaluating the credibility of the witnesses personally. This enabled an evaluation of not only what they said but also their manner of conveying their meaning, including through gesture and intonation.35 As the Supreme Court emphasised in Sena v Police, where there is a challenge of credibility on appeal, an appellate court will customarily exercise caution as a result of these factors.36
[32] It is not necessary to comb through the evidence for every point in favour of the defendant and deal with it. Nevertheless, I deal with the main points made by the appellant in his submissions in relation to the evidence, as follows:
(a)While the appellant’s submission that there was an absence of visible or photographic evidence to establish clearly significant physical injuries, the violence alleged by the complainant is not such that would lend itself to any long-lasting injury. The absence of any lasting physical effects of the assaults as alleged is not of itself determinative of it not having happened. This also explains why the complainant would not have sought or received medical treatment.
(b)There was a delay in making a complaint of abuse. However, such behaviour and continued contact with an abuser are not uncommon features of situations of domestic violence. Neither the complainant’s delay in making any complaint nor her continued communication with
35 Sena v Police [2019] NZSC 55 at [39]–[40].
36 At [38].
the appellant are proof that the assaults did not occur, nor grounds for making an adverse finding of credibility against her.
(c)Under cross-examination in a trial almost a year after the events were said to occur, it is understandable that the complainant might have made a mistake and become confused as to which side it was of her face was bitten. The suggestion that any bite marks were received during consensual sex was emphatically denied by the complainant. It was open to the judge to accept her evidence on this point.
(d)As to the allegations of selective choice of evidence, the respondent says that the complainant did not have the opportunity to address a number of these matters until they were raised in cross-examination. They were not raised by the prosecutor. Once they were raised in cross-examination, the complainant spoke openly about them. For instance, she readily conceded that contact between the parties had occurred. There was ample evidence for the Judge to make the findings on the facts that he did.
[33] The Judge acknowledged the inconsistencies in the complainant’s evidence. He said “[w]hile I accept that there may have been some mixed messages in the evidence that she gave, [the complainant] was nevertheless, in my assessment, a credible witness.”37 The Judge was aware that there were inconsistencies in the complainant’s evidence. Nevertheless he said she was a credible witness whose account could be accepted.
[34] The Judge did not err in finding the complainant’s evidence to be credible and sufficient to prove the allegations in relation to the assault offending.
[35] I note for completeness the appellant also submits that the Judge failed to consider whether the alleged assaults were acts of self-defence. The basis for this is that the complainant accepted that during the incidents at the appellant’s house and at her house, she assaulted the appellant a number of times by hitting him in the head and
37 At [17].
elsewhere with a plastic bottle and her shoe in an attempt to get her possessions back. Counsel submits that this being the case, it was incumbent on the Judge to consider whether the appellant’s actions were in self-defence and if so whether those actions were reasonable. The Judge erred in failing to address this.
[36] There was no error in the Judge omitting to address the issue of self-defence. The defence position at trial was and remains that the alleged assaults never occurred. Self-defence was not a live issue at the hearing.
Breach of protection order
[37] The appellant says that the complainant’s evidence relating to the alleged breach of protection order on 17 December 2020, even taken as alleged, fails to make out a breach of the protection order.
[38] Section 90(b) of the Family Violence Act 2018 prohibits a respondent to a protection order from “mak[ing] any contact with the protected person” that is not authorised under the Act. Section 8 of the Act defines “contact” as “any form of direct interaction (that is, face to face interaction)” or “any form of indirect interaction including, without limitation,— (i) by telephone, letters or other writing, or email; or
(ii) by communication on or via an Internet site; or (iii) by other digital communication”. The word “make” is not defined in the legislation but it is clear that this requires some sort of active intent or attempt to engage with the protected person. So, for the appellant to be guilty of a breach of a protection order it must be shown that the appellant intended to and did interact either directly or indirectly with the complainant.
[39] The complainant says she finished work at her supermarket job early and was walking across the carpark to her car parked on a major street in Hastings. The complainant saw the appellant’s ute parked on a street which crosses that major street. Within a minute the appellant drove away. The complainant did not see the appellant in the vehicle when she first saw it but saw him as the vehicle left, passing the complainant on the street as she was still in the supermarket carpark. The complainant could not remember if the appellant looked at her. There was no suggestion of the appellant speaking to the complainant or gesturing to her.
[40] To amount to prohibited “contact” the events must constitute the “direct interaction” form of “contact.” No such direct face-to-face interaction occurred here. There is no clear evidence that the appellant interacted with the complainant at all. There is no evidence indicating that the appellant’s parking near the complainant’s workplace was done with the intention of initiating contact with the complainant. There is no evidence of how long the appellant was in the vicinity of the complainant’s workplace, let alone suggestion of any intention to initiate contact. In addition, the location in question was a supermarket on a major street in Hastings.
[41] I accept the appellant’s submission that the Judge did not specifically address these issues but rather simply stated that he accepted it amounted to a breach of the protection order. On this charge, I do not consider there was sufficient evidence here to find that there was in this instance “contact” in the terms of the legislation constituting a breach of a protection order.
[42]The conviction on this charge is quashed.
Appeal against refusal to discharge without conviction
Approach to appeal
[43] An appeal against a refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.38 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:39
(a)by virtue of a material error by the sentencing Judge in entering a conviction; or
(b)as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act 2002.
38 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8].
39 At [12].
[44] The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.40 It is a matter of fact requiring judicial assessment and the discretionary power of the court to discharge without conviction arises only if the s 107 threshold has been met.41 Rather, an appeal against a refusal to grant a discharge without conviction proceeds by way of rehearing.42 Accordingly, the normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.43
[45] The approach to be adopted by an appeal court in relation to s 107 has been summarised in this way:44
[W]hen it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.
[46] If the appeal is allowed, the Court must set aside the conviction.45 The Court has a broad discretion as to next steps,46 including the ability to direct that a judgment of acquittal be entered, to direct that a new trial be held, to substitute a conviction for a different offence or to make any other order it considers justice requires.47
Relevant law
[47] Section 106 of the Sentencing Act provides that if a person who is charged with an offence is found or pleads guilty, a Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.48
[48] The application of s 106 is guided by s 107. Under this provision, a Court must not discharge an offender without conviction under s 106 unless the Court is satisfied
40 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
41 At [11].
42 Denden v Police [2014] NZHC 1814 at [28].
43 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and see Heke v R [2010] NZCA 476 at [17]–[19]
44 Denden v Police, above n 42, at [28].
45 Criminal Procedure Act, s 233(2).
46 Section 233.
47 Section 233(3).
48 Sentencing Act, s 106.
that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.49 The Court of Appeal has described s 107 as “a gateway through which any discharge without conviction must pass”.50
[49] The Court of Appeal has characterised an assessment under s 107 as a three-step process:51
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;52
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
[50] In relation to the first step, the Court of Appeal has confirmed that “when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender”.53
[51] With regard to the assessment of direct and indirect consequences of conviction on a defendant, the Court of Appeal has stated that:54
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
[52]In relation to the final step, the Court of Appeal has affirmed in R v Smyth
that:55
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences
49 Section 107.
50 R v Hughes, above n 40, at [8].
51 Prasad v R [2018] NZCA 537 at [11].
52 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
53 At [27].
54 DC (CA47/2013) v R [2013] NZCA 255.
55 R v Smyth [2017] NZCA 530.
must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
[53] The Court of Appeal has said there must be a “real and appreciable” risk that any given consequence will happen.56 This standard “recognises that the court is assessing the likelihood of something that may happen in the future”.57 Only if the three-step test as set out above (the proportionality assessment) is met can the court move to consider the residual discretion under s 106.58
[54] Once the Court is satisfied that the disproportionality test has been met pursuant to s 107 and that the consequences of conviction are out of all proportion to the gravity of the offence, it may then determine whether it should exercise its discretion to grant a discharge without conviction.59 Rarely will a Court refuse to exercise its discretion to grant a discharge without conviction when the criteria for a discharge under s 107 are satisfied.60
Analysis
[55] The appellant submits that the consequences of conviction were out of all proportion to the gravity of the offending and accordingly the Judge should have discharged the appellant without conviction. The appellant submits the Judge erred in finding that the consequences of conviction were nothing more than the normal consequences of conviction and not out of all proportion to the gravity of the offending.
[56] The appellant says that the relationship, its demise and the current charges took a heavy toll on the appellant. The appellant suffered from depression and anxiety and an all-round deterioration in his mental health, leading to ongoing suicidal ideation. There is evidence from the appellant’s doctor that a criminal conviction risks a further deterioration in the appellant’s mental health. The appellant says that although the Judge referred to these concerns, the Judge incorrectly assessed that the appellant had
56 Prasad v R, above n 51, at [11].
57 At [11].
58 At [11].
59 Z (CA447/2012) v R, above n 52, at [21]; and R v Hughes, above n 40, at [8]–[12].
60 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13]; and Police v Filipo [2016] NZHC 2573 at [53(4)].
successfully dealt with his issues and was clearly moving forward. The appellant says this is not the case.
[57] The respondent submits that even if the fact of a conviction in itself will aggravate the appellant’s mental health issues, this would not be sufficient to meet the threshold of a consequence that is “out of all proportion” to the gravity of the offending.
Gravity of offending
[58] The Judge described the gravity of the offending as at the low end of moderate. It was moderate as it was family violence but at the low end because of the actual extent of violence employed. As the Judge found, there were no lasting injuries, although there were some marks and subsequent bruising.
[59] The respondent accepts that the violence involved in this offending was at a lower level. However, the violence took place in a variety of forms, including pushing the complainant by the throat. It is important to take into account the fact that this was an incident of family violence. It had negative impacts on the complainant.
Consequences of conviction
[60] The appellant submits that the consequences of a conviction would be significant. In particular it risks precipitating a significant deterioration in his mental health.
[61] The appellant’s doctor has expressed a professional opinion in relation to the mental health effects of a conviction and concerns for the appellant’s personal safety if convicted. By letter dated 11 October 2021, Dr Cook stated that the appellant has a background of depression. Since the accusations the appellant had suffered a deterioration in his mental health with a decline in his mood and anxiety. In a letter of 17 January 2022, in advance of the sentencing, the doctor provided an opinion that the accusations had had a “marked detrimental effect on his mood”, resulting in anxiety, fear, suicidality, anhedonia and isolation. The doctor concluded the letter
saying “I have concerns around his personal safety with the outcome of the court case. I ask if Your Honour could consider compassion with his sentencing.”
[62] The day after sentencing, the appellant was diagnosed with having earlier suffered a small ischaemic stroke, with an unexplained cause.
[63] The appellant’s mother, employer and his girlfriend have also expressed to the Court concerns in relation to the consequences of the appellant being convicted. They express that the charges have caused a decline in the appellant’s mental health and are generally to the effect that they believe if the appellant receives a conviction it will affect his mental health greatly.
[64] What is not apparent is the causative effect of the conviction being entered on the exacerbation of the mental health and related conditions. It seems that the overall stress from the events leading up to the sentencing would have been stressful, but I am not satisfied there is a “real and appreciable risk” a conviction against the appellant will result in a significant deterioration to the appellant’s mental health.61 I consider that in this particular instance the consequences of a conviction itself would not pose that “real and appreciable risk” to the appellant’s mental health.
Were those consequences out of all proportion to the gravity of the offence?
[65] However, in case I am wrong I must now consider whether the conviction would be “out of all proportion” to the gravity of the offending. A discharge without conviction will not be appropriate in situations where there is a fine balance between the seriousness of the offending and the consequences of a conviction. The consequences need to significantly outweigh the seriousness of the offence.62
[66] As I have noted the respondent suggests that the impacts of conviction raised by the appellant relate to the impact of the prosecution process itself rather than any particular sentencing outcome. The appellant struggles with his mental health and I accept the evidence that the stress involved in the events following the offending
61 DC (CA47/2013) v R [2013] NZCA 255; and Prasad v R, above n 51, at [11].
62 Bennett v R [2019] NZHC 728 at [11].
including the trial might affect his mental health. However, I do not consider the impacts of the conviction would be out of all proportion to the gravity of the offending.
[67] I therefore dismiss the appeal as it related to the failure to grant a discharge without conviction.
Conclusion
[68] I dismiss the appellant’s appeal against conviction in relation to the assault charges. I do not consider the Judge erred in finding the complainant’s evidence to be credible and sufficient to prove the convictions.
[69] I quash the appellant’s breach of protection order conviction. I do not consider that in the circumstances the appellant could be said to have made contact with the complainant as prohibited by the protection order.
[70] I dismiss the appeal against the refusal to grant the appellant a discharge without conviction. I am not satisfied that there is a real and appreciable risk that a conviction would result in consequences beyond those normally experienced on a conviction of this sort nor that in the event I am wrong about that that the consequences of a conviction would be out of all proportion to the gravity of the offending in this case.
Grice J
Solicitors:
Scott Jefferson Barrister, Napier Copeland Ashcroft Law Limited, Hastings
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