Brenna v Police

[2023] NZHC 1004

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000072

[2023] NZHC 1004

IN THE MATTER OF

an appeal against s 106 decision

BETWEEN

PASQUALE BRENNA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 May 2023
Appearances:	N K B N Petrie for Appellant S E Cann for Respondent
Judgment:	1 May 2023

(ORAL) JUDGMENT OF EDWARDS J

Solicitors:

Ministry of Justice (Public Defence Service), Auckland Meredith Connell (Office of the Crown Solicitor), Auckland

BRENNA v POLICE [2023] NZHC 1004 [1 May 2023]

[1]                 Mr Brenna pleaded guilty to one charge of breaching a protection order in the North Shore District Court.1 His application for a discharge without conviction was declined by Judge Fitzgibbon.2 Mr Brenna now appeals.

Offending

[2]                 Mr Brenna was subject to a protection order issued by  the  Waitakere  District Court in February 2021.

[3]                 Between 14 January and 21 January 2022, Mr Brenna sent multiple text messages to the victim, verbally abusing her, and stating: “I’m proud of kicking you around”; “You are a fucken pos!”; “Mental and amoral = of shit.”; “fuck up public toilet on legs.”; “Kill yourself! Do it!”.

[4]Mr Brenna initially denied the offending when spoken to by police.

District Court decision

[5]The application came before Judge Fitzgibbon on 19 January 2023.

[6]                 The Judge considered the offending to be of moderate seriousness. The aggravating factors were the nature of the text messages (which were extremely abusive and threatening) and the number of them sent over a period of a week.

[7]                 The Judge turned to consider aggravating and mitigating features. She referred to Mr Brenna’s two previous (unrelated) convictions for driving related offending from 2007 and 2009. The Judge noted Mr Brenna was remorseful, had completed a non-violence programme with Shine, and was intending to complete a parenting programme. She also referred  to  the  victim’s  view  that  she  no  longer  wanted Mr Brenna to be convicted given his positive progress.3

1      Family Violence Act 2017, ss 90(a) and 9 and 112(1)(a), maximum penalty three years’ imprisonment.

2      Police v Brenna [2023] NZDC 861.

3 At [7].

[8]                 Taking those factors into account, the Judge assessed the gravity of the offending to be low to moderate.

[9]                 As for the direct and indirect consequences of the conviction, the Judge noted that Mr Brenna had been an Uber driver for five years and wanted to return to that career. Waka Kotahi would undertake a background check to ensure Mr Brenna was fit and proper. Waka Kotahi was aware of the offending but had not taken any steps so far, but reserved their right to do so after the Court hearing. The Judge noted that if Mr Brenna lost his passenger endorsement, he would not be able to work as an Uber or a taxi driver. The Judge considered that to be a real and appreciable risk.4

[10]             Turning to the disproportionality test, the Judge considered that any consequences arose out of the offending, rather than the conviction itself.5 She found that difficulties in gaining employment were not out of all proportion to the seriousness of the offending.

[11]             The Judge also made reference to any new employer having the right to know about the conviction and said it was for Waka Kotahi to determine whether Mr Brenna was fit and proper to hold a licence. She said a discharge would deny that agency the ability to properly fulfil their function.6

[12]             Accordingly, the application for a discharge without conviction was declined. Mr Brenna was ordered to come up for sentence if called upon for six months. A $500 emotional harm payment was also ordered to be made to the victim.

Legal framework

[13]             Sections 106 and 107 of the Sentencing Act 2002 govern a discharge without conviction.

[14]             Under s 107 of the Sentencing Act, a Court must not grant a discharge without conviction unless satisfied that the direct and indirect consequences of conviction

4 At [8].

5 At [9].

6 At [11].

would be out of all proportion to the gravity of the offence. It is well settled that a court is required to follow a three-step process in determining whether this threshold is met:

(a)First, ascertain the gravity of the offending taking into account all aggravating and mitigating factors of the offending and offender;

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

(c)Third, determine whether those consequences are “out of all proportion” to the gravity of the offence.

[15]             If the threshold is met under s 107 then the Court turns to consider whether to exercise its discretion to grant a discharge under s 106 of the Sentencing Act.

[16]             An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence.7 The appeal proceeds by way of rehearing.8

Did the Judge err in the assessment of the gravity of the offending?

[17]             The Judge assessed the overall gravity of the offending (taking into account the aggravating and mitigating factors of offender and offending) as low to moderate.

[18]             Counsel for Mr Brenna, Mr Petrie, submits that the Judge erred by failing to take into account the appellant’s offer of a $500 emotional harm payment to the victim when assessing the gravity of the offending. Further, he submits the Judge took into account the appellant’s previous conviction history as an aggravating factor when those convictions were irrelevant to the index offending. On this basis, he submits that the gravity of the offending should be characterised as low.

[19]             It is apparent from the Judge’s end sentence that she was aware of the offer to make a $500 emotional harm payment to the victim. While the Judge did not refer to

7      Jackson v R [2016] NZCA 627 [7]–[8].

8      Doyle v R [2022] NZCA 307 at [15].

this as a separate mitigating factor relevant to the gravity of the offending, I am not satisfied that this was in error. The offer to make an emotional harm payment substantiates Mr Brenna’s remorse. The Judge expressly referred to Mr Brenna’s remorse as mitigating the gravity of the offending in this case and so this factor had already been addressed. But even if it was not, I do not consider it to be a separate and distinct factor which would materially alter the assessment of gravity in this case.

[20]             As for the prior convictions, I do not read the Judge’s notes as taking those convictions into account. She referred to the unrelated nature of these convictions, and that they were over 10 years old. I am not persuaded that the Judge erred in this respect.

[21]             Overall, I am not satisfied that the Judge’s assessment of the offending as low to moderate was in error.

Did the Judge err in assessing the direct and indirect consequences of conviction?

[22]             Counsel for Mr Brenna submits that the  District Court  failed  to  consider Mr Brenna’s mental health and the effect of the Criminal Records (Clean Slate) Act 2004 (Clean Slate Act) when assessing the consequences of conviction.

[23]             Reports from a psychiatrist and psychologist have been filed with the Court in support of the impact on Mr Brenna’s mental health. The former is dated from 2017, and the latter is undated. These reports were not before the District Court at the time of sentencing. Although the evidence is not fresh, the Crown does not oppose its admission and accepts that it is likely to be in the interests of justice to allow it. I order accordingly.

[24]             Ultimately, however, this new evidence does not alter the assessment of the direct and indirect consequences. While it provides more detail of Mr Brenna’s mental health issues, it does not explain the consequences for Mr Brenna’s mental health if convicted. It also appears from the pre-sentence report and the affidavit sworn by  Mr Brenna in support of his application, that his mental health is relatively stable at present. There is no suggestion in any of that material that a conviction would cause

a negative and adverse impact on his mental health, let alone one which would be out of the ordinary.

[25]             To the extent that Mr Brenna submits that embarrassment, loss of pride and negative self-esteem associated with disclosure of the conviction is an adverse mental health effect, then I do not consider it to be a consequence which would tip the scales in favour of discharge. In Mr Brenna’s case this would be an ordinary consequence which flows from the offending.

[26]             The submission regarding the Clean Slate Act has more merit. Mr Brenna’s previous driving-related convictions fall within that Act. However, a conviction in this case will mean that Mr Brenna’s convictions will show on his criminal record.9

[27]             The loss of the Clean Slate Act protection may impact on Mr Brenna’s passenger endorsement on his driver’s licence, as Waka Kotahi was (legitimately) unaware of these convictions at the time they considered him to be a fit and proper person. Furthermore, Mr Petrie submits that the fact of a criminal record with three prior convictions  may have consequences for new employment prospects  should  Mr Brenna lose his passenger endorsement.

[28]             I accept that the loss of the Clean Slate Act protection elevates the consequences of conviction for Mr Brenna in this case. It strengthens the risk that  Mr Brenna will lose his passenger endorsement (thereby affecting his income as an Uber driver) and may make it harder to secure alternative employment.

[29]             Accordingly, the loss of the Clean Slate Act protections increases the likelihood that Mr Brenna will suffer the consequences identified by the Judge.

Proportionality assessment

[30]             Counsel for Mr Brenna submits that the Judge overstated the gravity of the offending and understated the consequences of the conviction when assessing proportionality.

9      Criminal Records (Clean Slate) Act 2004, s 8.

[31]             My assessment of the gravity of the offending is the same as that of the sentencing Judge. However, I accept that the consequences of conviction may have been understated, given the impact of the Clean Slate Act. The question is what impact this has on the proportionality assessment.

[32]             Ultimately, I do not consider the loss of the Clean Slate Act protections is sufficient to tip the balance in favour of a discharge. As noted in other cases, the Court should be cautious about giving too much weight to the revival of prior convictions.10 To do so, risks undermining Parliament’s intention that there be consequences for further offending.

[33]             While Mr Brenna may face consequences in terms of his current and future employment prospects as a result of conviction, those cannot be said to be out of all proportion to the gravity of the offence.

[34]             For completeness, I record that I have taken into account the victim’s most recent views where she states that she no longer wishes to see Mr Brenna convicted. Those views are important, but they are not determinative, and they do not shift the balance in this case.

Result

[35]The appeal is dismissed.

Edwards J

10     Williams v Police [2013] NZHC 394; Enache v Police [2015] NZHC 2586; and Modise v Police

[2018] NZHC 2367.