Brodie v Police
[2016] NZHC 120
•10 February 2016
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-000041 [2016] NZHC 120
BETWEEN LESLIE STEWART BRODIE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 February 2016 Appearances:
M J Phelps for Appellant
M Mitchell for RespondentJudgment:
10 February 2016
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 10 February 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
BRODIE v NEW ZEALAND POLICE [2016] NZHC 120 [10 February 2016]
[1] Mr Brodie pleaded guilty in the District Court to a charge of common assault.1 On 31 July 2015 Judge Rea ordered Mr Brodie to make an emotional harm reparation of $1,000 to the victim of his offending but imposed no other penalty.
[2] Mr Brodie appeals against conviction and sentence. He contends that the Judge ought to have made an order under s 106 of the Sentencing Act 2002 (the Act) discharging him without conviction.
Background
[3] The charge was laid as a result of an incident that occurred on the afternoon of 18 October 2014. On that date Mr Brodie went with his two sons to a bar in central Hastings. They were drinking in an area of the bar near where the complainant and his partner were dancing. One of Mr Brodie’s sons put his drink down on the shelf near the complainant and his partner. The complainant’s partner picked up the drink to avoid it being spilled on her jacket. Mr Brodie’s son thought she had taken his drink. A verbal altercation then ensued.
[4] Mr Brodie’s son initially moved away from the complainant and his partner. A short time later, however, he went back towards the complainant in an aggressive manner. As Mr Brodie’s son advanced on the complainant, the complainant pushed him away. Mr Brodie’s son then began punching the complainant in the head. A short time later Mr Brodie’s other son joined in the attack. He, too, began punching the complainant in the head. At this point Mr Brodie became involved. By this stage the complainant was pinned against a pool table. Mr Brodie put the complainant in a headlock and lowered him to the ground. The complainant took exception to this and bit Mr Brodie on the arm. Mr Brodie responded by punching the complainant in the side of the head.
[5] CCTV camera footage of the incident shows that the fracas went on for some considerable period. It ended when members of the bar’s security staff extracted the
complainant and took him outside. The complainant required medical attention as a
1 Crimes Act 1961, s 196. Mr Brodie was originally charged with injuring with intent to injure under s 189(1) of the Crimes Act 1961.
result of the incident. He received 12 stitches to the cheek and six stitches to his ear. He also had a considerable number of bruises.
Relevant principles
[6] Applications for discharge without conviction are governed by s 106 of the
Act, which relevantly provides as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[7] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[8] When determining an application under s 106 the Court is required to consider three issues.2 It must first assess the gravity of the offending having regard to the facts of the particular case. Next, it must identify the direct and indirect consequences of a conviction being entered. Thirdly, it must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending.
[9] An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or
refuse to grant a discharge.3
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
3 Edwards v R [2015] NZCA 583 at [6].
The Judge’s decision
[10] The Judge correctly identified the principles to be applied in this context. In assessing the gravity of the offending, the Judge acknowledged that Mr Brodie had given exemplary service to the New Zealand Police and the New Zealand Army, as well as the community generally, for a very considerable period. He was also well supported at sentencing by numerous references attesting to his prior good character
and accomplishments. The Judge then said:4
[14] As far as the gravity of the offending itself is concerned, while I appreciate the charge is at a lower level, the circumstances surrounding it are not. One of the key features in this case is that this attack on [the complainant] took place in licensed premises. The Courts are very vigilant in ensuring that, where circumstances such as that occur, a message does need to be sent to those who are involved in violence in that sort of a setting that it is totally unacceptable and simply will not be tolerated, and that is reflected, I would say, in the sentences [of home detention] that the two brothers are currently serving.
[15] It is also particularly troubling from a personal and from a facts of the offending point of view, that somebody with Mr Brodie’s training and experience would find himself in a situation where he has to assault somebody in the way that he did, in the circumstances that existed at that time. Mr Phelps has endeavoured to cut off that concern by simply saying that his training is not to react when he is drunk, as he was on this occasion, according to Mr Phelps’ submission and so, therefore, it is a double-edged sword as far as both Mr Brodie is concerned and on the facts of this case. Obviously, it is an aggravating feature where this has occurred. It is an aggravating feature, as well, that his training has badly let him down on this occasion but Mr Phelps submits that it must be put into the context of the drinking that had occurred and the lapse of judgment that followed as a result of that.
[11] The Judge concluded that the gravity of the offending was “quite high” notwithstanding the fact that the charge had been reduced from injuring with intent to injure to common assault.
[12] The Judge then went on to consider the direct and indirect consequences of a conviction. The first of these was that Mr Brodie had lost the opportunity to enter into further contracts with the New Zealand Police to carry out training on behalf of the police. The Judge recorded, however, that this consequence was likely to occur
regardless of whether or not Mr Brodie was convicted.
4 New Zealand Police v Brodie [2015] NZDC 18986.
[13] The Judge also observed that a conviction may have consequences for any travel arrangements Mr Brodie wished to undertake in the future. Mr Brodie has previously travelled extensively in the course of his employment, and wishes to be able to continue to do so in the future with his wife. The Judge observed that curtailment of travel is potentially an outcome for anybody convicted of an offence. The Judge also noted that Mr Brodie had no immediate plans for overseas travel that might be affected by the conviction.
[14] Next, the Judge noted the stigma that Mr Brodie would inevitably suffer as a result of the conviction. He said that this would be a particularly onerous matter given that Mr Brodie has dedicated his life to public service.
[15] Finally, the Judge turned to what he considered to be the most important financial consequence of a conviction. This relates to the fact that Mr Brodie owns a franchise that entitles him to operate a coffee making business. He was concerned that a conviction might justify the franchisor terminating the franchise. The Judge noted that possibility, but observed that the franchisor might endeavour to terminate the franchise even if no conviction was entered.
[16] Turning to the ultimate assessment of whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending, the Judge said:
[22] In the end, I have to make an assessment as to whether, taking into account the gravity of the offender, which I have outlined in some detail, and the results of a conviction, whether they would be out of all proportion the gravity of that offence. In the end, I have determined that the gravity of the offence here, bearing in mind the location, what has occurred, the effect on the complainant and the overall circumstances, is quite high and I take into account that the charge has been reduced from a more serious one to one of assault. The fact remains that, in a crowded bar situation, Mr Brodie was prepared to get himself involved in what turned out to be a significant assault on a totally defenceless and unprovoking complainant, so I hold that the gravity of the offending is at a high level overall in the circumstances of this case.
[23] While I accept there is the potential of consequences that will be unpleasant and financially difficult, as far as Mr Brodie and his family are concerned, I am not sufficiently sure that any of that will come to pass at the present time. Mr Phelps has said that it would be unusual for the franchisor to outline in any detail that they intended to abandon the franchise agreement
as a result of a conviction, but the franchisor has been very careful in the way that it has framed its response and, at the present time, it cannot be said with any degree of certainty that the franchise agreement would come to an end as a result of a conviction.
[24] As far as the travel and stigma and future contract prospects are concerned, in my view, they cannot be seen as out of all proportion to the gravity of the offending either. In my view, the test for a discharge without conviction has not been met in this case and I do not consider that I have jurisdiction to grant one, based on my view of the evidence and of the material put before me.
The gravity of the offending
[17] As the Judge acknowledged, this factor is not restricted to aggravating and mitigating factors relating to the offending. Factors relating to the offender may also be relevant.5
[18] There is no dispute that the Judge correctly identified the relevant aggravating factors relating to the offending itself. Mr Phelps contends, however, that the Judge failed to acknowledge or give weight to four important mitigating factors relating to Mr Brodie personally. These were his guilty plea and lack of previous convictions, the fact that he had expressed remorse and offered to attend a restorative justice conference and the fact that the complainant’s opposition meant that the police were unable to offer diversion to Mr Brodie. Mr Phelps submits that if the Judge had given these factors proper weight he would not have assessed the gravity of the offending as being high.
[19] As Mr Phelps acknowledged, however, the extent to which the Judge dealt with Mr Brodie’s previous good character means that he must have taken into account the fact that he had no previous convictions. The fact that Mr Brodie had entered an early guilty plea to the lesser charge of common assault was also clearly recognised by the Judge. Furthermore, although the Judge did not expressly refer to the issues of remorse and diversion, when his sentencing remarks are read as a whole I do not consider they would have altered his overall assessment of the gravity of the
offending.
5 Z v R [2012] NZCA 599 at [27]; DC v R [2013] NZCA 255 at [35].
[20] Viewing the matter afresh, I see the overall gravity of the offending as being less serious than did the Judge. My principal reason for doing so is that I consider significant weight must be accorded to the fact that the prosecution was prepared to reduce the charge from injuring with intent to injure to common assault. The former carries a maximum penalty of ten years imprisonment, whilst the latter has a maximum sentence of just 12 months imprisonment. Furthermore, a charge of common assault does not include as an element any intention on the part of the defendant to cause harm or injury to the victim. The defendant must only intend to carry out the assault in question. The charge of injuring with intent to injure also requires the prosecution to prove that the defendant intended to cause the victim actual bodily harm.
[21] The decision by the prosecution to reduce the charge to one of common assault obviously means that it viewed Mr Brodie’s culpability as being much less serious than that of his sons, both of whom pleaded guilty to charges of injuring with intent to injure. The difference between the two charges reflects the reality of the situation as disclosed by both the summary of facts and the CCTV footage of the incident. These clearly demonstrate that Mr Brodie played no part in the initial attack on the complainant. He did not become involved until after his two sons had already landed several blows to the complainant’s head. Although Mr Brodie’s action in placing the complainant in a headlock cannot be justified, he did not punch the complainant until after the complainant had bitten him on the arm. There can be no criticism of the complainant for acting in that way after being placed in a headlock. It does, however, provide an explanation, albeit not an excuse, for Mr Brodie taking the additional step of punching the complainant.
[22] When these factors are placed alongside Mr Brodie’s early guilty plea, his offer to attend a restorative justice conference, his impeccable previous record and his years of public service, I assess the overall gravity of the offending as being low to moderate.
The direct and indirect consequences of conviction
[23] Mr Brodie contends that a conviction for common assault will directly or indirectly affect the following aspects of his life:
(a) He will not be able to enter into training contracts with the New
Zealand Police;
(b) He will not be able to re-join the police;
(c) He will face restrictions in relation to overseas travel; (d) He will have the stigma of a conviction;
(e) The franchisor of his coffee business may seek to terminate the franchise.
Training contracts with the New Zealand Police
[24] After Mr Brodie left the New Zealand Police in 2012, he entered into contracts to conduct training exercises for the New Zealand Police in the Auckland and Eastern Police Districts and also at the New Zealand Police College in Wellington. The New Zealand Police discontinued these contracts after Mr Brodie was charged with the present offending in December 2014. Mr Brodie realistically accepts that he is unlikely to be offered any further work of this type in the future.
[25] Loss of the training contracts was undoubtedly a direct result of Mr Brodie’s participation in the events that gave rise to the charge. I consider, however, that the Judge correctly concluded that this particular consequence visited itself on Mr Brodie at a point well before the entry of a conviction. The New Zealand Police obviously took the view that it was inappropriate for Mr Brodie to train members of its staff once he had been charged with criminal offending. There is nothing in the evidence to suggest that a different view would be taken if Mr Brodie was discharged without conviction.
Further employment with the New Zealand Police
[26] When Mr Brodie left the New Zealand Police, he was given an option to take up re-employment at any stage during the following five years. He was therefore able to avail himself of that option up until 2017, but is now concerned that the existence of a conviction will now prevent him from doing so.
[27] I accept that this may be a consequence of a conviction being entered, but I do not detect from Mr Brodie’s affidavit any hint that he wishes to actively pursue re-employment by the New Zealand Police. In the absence of any such evidence I do not give great weight to this consequence.
Overseas travel
[28] A conviction for assault may create barriers for Mr Brodie in relation to travel to some countries overseas. Given the nature of the charge and the ultimate penalty imposed, however, it is unlikely that he would be refused a visa to travel to most countries in the western world. Furthermore, any restriction on Mr Brodie’s ability to travel will not harm his career prospects. His concern relates only to the difficulty that he may encounter in relation to overseas leisure travel with his wife in the years to come. I therefore assess the likely impact of travel restrictions as being low.
The stigma of a conviction
[29] I accept that for a person in Mr Brodie’s position the stigma of a conviction for assault after so many years of impeccable character and lengthy public service is an issue of genuine and significant concern. He says that it has made his life’s work and achievements worth nothing.
[30] This is obviously a matter of some weight, but any similar conviction is likely to be a matter of significant concern to a person who has served the community for a lengthy period and has led a blameless life up until the current offending.
Termination of franchise agreement
[31] Mr Brodie is concerned that the franchisor might terminate the coffee business franchise that he and his wife currently operate. Mr Brodie’s position in relation to this issue has not been helped by the fact that the victim of his offending has contacted the franchisor to make his views known about Mr Brodie’s suitability to remain a franchisee. To date, however, the franchisor has taken no steps to terminate the franchise agreement. It has said only that it will continue to monitor the situation before making its final decision.
[32] I acknowledge there is a possibility that the franchisor may seek to terminate the franchise agreement. If it did, I accept that the financial consequences for Mr Brodie would be significant. It is therefore necessary to consider whether it is likely that Mr Brodie’s concerns will be borne out.
[33] Although it can be anticipated that the franchise agreement contains a provision entitling the franchisor to terminate the agreement for cause, termination would presumably only be justified where there is a nexus between the conduct of the franchisee and his or her continued suitability to conduct the franchised business. I do not see any realistic nexus between the conduct that gave rise to the charge and Mr Brodie’s position as the franchisee of a coffee business. Although it is not difficult to see why that conduct would reflect on his suitability to be re-employed by the New Zealand Police, it is much more difficult to see why he should not be permitted to continue to serve coffee to members of the public. I therefore assess the risk that the franchisor will terminate the franchise agreement as being low.
[34] Furthermore, the franchisor is clearly fully aware of the present position. It will presumably reach a decision based on its own assessment of the effect of Mr Brodie’s conduct rather than on whether or not a conviction has been entered.
Conclusion
[35] Taking all of the above factors into account, I assess the direct and indirect consequences of a conviction as being low to moderate.
Are the direct and indirect consequences of conviction out of all proportion to the gravity of the offending?
[36] My earlier conclusions are that the gravity of the offending was low to moderate, and that the direct and indirect consequences of conviction are at the same level. It follows that the statutory threshold is not met, and that the Judge was correct not to grant a discharge without conviction.
Result
[37] The appeal is dismissed.
Lang J
Solicitors:
Crown Solicitor, Napier