Burton v Police
[2015] NZHC 3251
•16 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000091 [2015] NZHC 3251
BETWEEN KAELEN BURTON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Appearances:
A MacMillan for Appellant
J Barry for RespondentJudgment:
16 December 2015
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 16 December 2015 at 2.15pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….
Solicitors/Counsel:
A MacMillen, Auckland
Meredith Connell, Auckland
BURTON v NZ POLICE [2015] NZHC 3251 [16 December 2015]
Introduction
[1] On 3 March 2015 the appellant, Mr Burton, pleaded guilty to one charge of indecent assault. He was convicted and sentenced to a fine of $350 by Judge J H Walker in the District Court at North Shore. Judge Walker declined to grant Mr Burton a discharge without conviction.
[2] Mr Burton now appeals against the Judge’s refusal to grant a discharge
without conviction under s 106 of the Sentencing Act 2002.
Relevant facts
[3] At about 8.30pm on 28 May 2014 Mr Burton was at a party at a residential address. The complainant was also present. Mr Burton had been drinking heavily. At one stage he followed the complainant up a flight of stairs. As they walked up the stairs Mr Burton reached forward and placed his hand between the complainant’s legs. He proceeded to press his fingers on her underwear and pushed them against her vagina.
[4] When he was spoken to by the police, Mr Burton accepted that he was at the address, but denied the offending. When he was later spoken to by the probation officer who prepared the pre-sentence report, he said that he had limited recall of the incident. He said that he was unable to confirm the summary of facts. He recalled being in the kitchen, that he heard the complainant and her flatmate yelling in the background, and that his next recollection was running down the stairs with the complainant’s friend chasing him carrying something in her hand and yelling that she was going to kill him. He said that his next memory was of waking up in hospital with a head injury. He told the probation officer that he believed he was struck on the head with a heavy object.
[5] Mr Burton has since filed two affidavits.
(a) The first is dated 28 February 2015. In that affidavit he stated that he was either pushed or fell down the stairs at the house, and hit his head. He said that he was shocked at the allegations when the police put
them to him, and that the behaviour was out of character for him. He said that he pleaded guilty because he could not remember anything that occurred, and because he did not want to put the complainant through the stress of giving evidence in Court. He also said that when he discussed the matter with his lawyer, he was advised that the police prosecutor had suggested that this was a matter which could be dealt with through the restorative justice programme, and that an application for a discharge without conviction would not be opposed by the police. He said that he understood that the prosecutor spoke to the complainant and that she was supportive of this approach. He said that he decided to plead guilty as a consequence.
(b)In a second affidavit dated 12 November 2015, filed for the appeal, Mr Burton says that he was hit over the head with a brick.1 He also confirmed much of the above and detailed his current job aspirations.
[6] It appears from the file that Mr Burton initially entered a not guilty plea, but that this plea was subsequently vacated. He sought to engage in a restorative justice conference. It appears both from Mr Burton’s affidavits, and from a memorandum which the informant filed with the District Court, that the police also took the view that the complainant’s needs were better met by the restorative justice process, and that it was ultimately agreed that a guilty plea would be entered and a referral to the restorative justice process made on the understanding that Mr Burton would be willing to follow that path and that this would be given due recognition when he applied under s 106 of the Sentencing Act for a discharge without conviction.
[7] The restorative justice process was not completed, and no conference was held. That however was the complainant’s decision, and it was not attributable to Mr Burton. As a result, the police, before the District Court Judge, neither opposed nor
supported Mr Burton’s request for a discharge without conviction.
1 The Crown did not oppose this further affidavit being filed, and I granted leave accordingly.
District Court decision
[8] Judge Walker considered the application for a discharge without conviction. She noted that the complainant was upset by the offending and that her family had said that she was not the bubbly outgoing person she used to be. The Judge acknowledged that the events took place at a party and that Mr Burton had relatively little recollection of what occurred. However she took the view that intoxication was not a mitigating factor. The Judge considered that the offence was serious, and that the offending was at the moderate end of the scale rather than at the lower end. She noted that there was no skin to skin contact, but that there was an assault to the victim’s genital area.
[9] The Judge referred to Mr Burton’s first affidavit and noted that he had stated that he was seeking to pursue a career as a chef. She recorded that it was not necessary for the Court to be satisfied that direct or indirect consequences would inevitably and probably occur and that it was sufficient that there was a real and appreciable risk that such consequences could occur. She accepted that in Mr Burton’s case there are general consequences which apply to all persons who have a conviction for indecent assault. She recorded however that she was not satisfied that there was any particular direct or indirect consequence for Mr Burton as a result of the conviction. She noted that there was no evidence that a conviction would be a disqualifying factor, or that it would hinder any employment opportunities Mr Burton may have. The Judge also observed that there was no evidence that Mr Burton’s career as a chef was likely to become a reality.
[10] She did not consider that a conviction would be disproportionate. She noted the police submissions relating to the failed restorative justice conference. She acknowledged that there had been no conference. She recorded that Mr Burton was remorseful and she noted his affidavit in that regard. She considered however that there were other means which Mr Burton could have used to tender an apology and demonstrate his remorse. She referred to the victim impact statement, and noted that it recorded that the victim had not taken the matter lightly, and that other people present at the time did not consider that it was a matter which should be taken lightly either. She declined to discharge Mr Burton without conviction.
Submissions
[11] Ms MacMillan, appearing for Mr Burton, submitted that Judge Walker erred in assessing the gravity of the offending. She submitted that the Judge either failed to take into account or accord proper weight to relevant considerations, such as the lack of skin to skin contact, the lack of premeditation, the fleeting nature of the contact, Mr Burton’s remorse, his willingness to attend a restorative justice conference and the stance of the prosecution. Further she argued that Her Honour erred in her assessment of the consequences of the conviction by failing to take into consideration Mr Burton’s youth, his remorse and the inevitable impact of a conviction on his future employment prospects. She noted that Mr Burton has now chosen to pursue a career in dog handling, and that he has been accepted into an animal management course which commences in February 2016. As a lead into that course, he has completed a foundation course at the Mt Albert Unitec. She noted Mr Burton’s concern that the conviction could prevent him from pursuing his chosen career path, namely handling dogs with a Government agency such as the Customs Border Security Canine Unit, or perhaps with the police or the SPCA. Finally, Ms MacMillan argued that Judge Walker erred in weighing the consequences of a conviction against the gravity of the offending.
[12] Mr Barry for the Crown submitted that, after considering all of the aggravating and mitigating factors relevant to the gravity of the offending, Judge Walker correctly assessed the offending as being towards the moderate end of the scale of seriousness. He submitted the consequences argued in this case derive from any criminal conviction, and that there is no evidence before the Court as to the potential direct or indirect consequences of a conviction for Mr Burton. He argued that there is no evidence to show how a conviction would specifically hinder Mr Burton’s future employment prospects. He referred to a number of decisions where this Court has cautioned against granting a discharge where the consequences are unclear, and where there is insufficient evidence to support assertions as to alleged consequences. He observed that an existing conviction which Mr Burton has for possession of cannabis would need to be disclosed to the New Zealand Customs Service under s 19 of the Criminal Records (Clean Slate) Act 2004, should he wish
to work for Customs, and argued that ultimately the decision whether or not to employ Mr Burton is a matter for any prospective employer.
Approach on appeal
[13] Under ss 229 and 244 of the Criminal Procedure Act 2011, Mr Burton has a general right of appeal against both his conviction and sentence.
[14] In R v Hughes2 the Court of Appeal characterised the nature of a decision under ss 106 and 107 of the Sentencing Act as a matter of fact requiring judicial assessment. Accordingly, a decision as to whether the statutory test is met is subject to the normal appellate principles, prescribed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.3 The appellate court must consider the matter afresh and form its own opinion.
[15] The role of this Court is, therefore, to assess for itself whether the proportionality test under s 107 has been met. If the test is met, whether the s 106 discretion should be exercised has to be considered afresh. However, a favourable exercise of the discretion is likely to follow given that “it will be a rare case where an offender has passed through the s 107 ‘gateway’, but is then not discharged under
s 106(1).”4
Analysis
[16] Section 106 of the Act permits the Court to discharge an offender without conviction. However, s 107 provides that the Court must not do so 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”.
[17] In DC v R,5 the Court of Appeal confirmed the now settled principles in relation to discharges without conviction. The s 107 inquiry is staged. The first
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
5 DC(CA47/2013) v R [2013] NZCA 255; and see Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
stage under s 107 requires a three step process.6 The three steps require the Court to consider:
(a) the gravity of the offending;
(b) the direct and indirect consequences of a conviction; and
(c) whether the consequences of conviction would be out of all proportion to the gravity of offending.
[18] In Z v R the Court of Appeal considered that the aggravating and mitigating factors relating to both the offending and offender can be treated as relevant to the first step (the gravity of the offence) or the third step (the balancing exercise), as long as they are considered somewhere in the process.7
[19] In Hughes, the Court of Appeal concluded that s 107 had not altered the common law.8 It summarised the position as follows:9
… Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and
10. Having taken account of those factors, the judge must determine whether the s 107 test is met and whether it is appropriate that he or she
makes an order under s 106 to deal with the offender.
[20] Against this background, I turn to consider this case.
[21] First, I note the offence of indecent assault encompasses a very wide range of conduct. As the Court of Appeal has noted, at one extreme it encompasses assaults that are tantamount to sexual violation. At the other, it protects personal autonomy
in sexual matters, policing an important social boundary by proscribing non
6 See Bruce Robertson (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brookers)
at [SA107.01].
7 Z (CA447/2012) v R, above n 5, at [27]-[28].
8 R v Hughes, above n 2, at [34]-[35].
9 At [41].
consensual sexual touching. It is an offence which the Courts always take seriously.10
[22] Here there were a number of aggravating features to the offending. First, it was to the genital area. It was not to, for example, the breasts or buttocks. Mr Burton was intoxicated but that does not mitigate the offending. He was 22 years of age at the time. He should have known better. The victim impact statement which was before the Judge makes it clear that the offending has had a significant effect on the complainant. She has moved away from the North Shore, because that is where the incident took place. She gets flashbacks on a regular basis. She had not seen Mr Burton before the offending took place and she states correctly that he had no right to touch her. She says that she did not lead him on or give him any signals to suggest that he had permission to touch her, and that his actions have left her feeling vulnerable. She records that she gets emotional, and cries often. She keeps blaming herself for what happened. She records that she has gone from being an independent, carefree person to being fearful and needing support, that she does not trust people anymore and that she feels emotionally drained. All of this suggests that the offending was serious.
[23] I accept that there are some mitigating features to the offending. In particular, the contact was not skin to skin contact, there was no premeditation and the contact that occurred was fleeting. Mr Burton has expressed remorse and he was willing to attend a restorative justice conference. It seems that the police were prepared to support a discharge without conviction, had a restorative conference gone ahead, and that the fact that a conference was not held was not attributable to Mr Burton. He has only one prior conviction, and that is not relevant for present purposes.
[24] The Judge regarded the offence as serious and Mr Burton’s offending as
being at the moderate end of the scale.
[25] Having considered all the aggravating and mitigating factors relevant to Mr
Burton’s offending, in my view the offending falls at the lower end of the scale of
10 Edwards v R [2015] NZCA 583 at [9].
seriousness for offending of this kind. It was not however insignificant or minor offending.
[26] I now turn to the consequences of a conviction. The Court must be satisfied that there is a real and appreciable risk that the identified direct and indirect consequences will occur.11
[27] Mr Burton is concerned about the impact of conviction on his future employment prospects. In his first affidavit he deposed to his desire to become a chef, and he raised concern about the impact a conviction might have on his ability to travel and to get work experience in that field. In his second affidavit he refers to his desire to work as a dog handler with Customs, the police or the SPCA. It is clear that he has made some progress in this regard. He has passed a pre-entry course, and is enrolled in an animal management course commencing early in 2016.
[28] There is however no evidence that there is a real and appreciable risk that a conviction will adversely affect Mr Burton’s employment prospects. If he wishes to work for a Government agency such as Customs or the police it is likely that he will have to declare his existing cannabis conviction under s 19 of the Criminal Records (Clean Slate) Act. I acknowledge that some employers may not be prepared to look beyond the bare fact of a conviction, but it cannot be assumed that all or even most employers will behave in that way, especially where the offender is otherwise a
person of good character.12
[29] I do not consider that there is a demonstrated real and appreciable risk that a conviction will have an exaggerated impact upon Mr Burton’s development and future prospects. There is no hard evidence before the Court as to the potential direct and indirect consequence of a conviction for Mr Burton. Although his choice of career has now changed, he has not provided any evidence as to how a conviction
would specifically hinder his future employment prospects.
11 Iosefa v Police HC Christchurch CIV-2005-409-000064, 21 April 2005 at [34].
12 Edwards v R, above n 10, at [18].
[30] The Court has previously cautioned against granting a discharge when the consequences are not clear and where there is insufficient evidence to support assertions as to the alleged consequences.13 In my view, this case falls into that category.
[31] I now turn to the balancing test which is required.
[32] Even though I consider that the indecent assault is at the lower end of the scale of seriousness for such offending, I do not consider that the consequences of a conviction are disproportionate to the gravity of the offending. It seems to me that the consequences of a conviction for Mr Burton are no more or less severe than those experienced by anybody else with a criminal conviction.
[33] The expression “out of all proportion” contained in s 107 implies that there must be a significant disproportion of consequence in relation to the gravity of an offence before a Court will be justified in exercising the discretion to discharge without conviction.14 The words “out of all proportion” point to an extreme situation that speaks for itself.15
[34] In my view the consequences for Mr Burton of a conviction are not out of all proportion to his offending. As a result the threshold for a discharge without conviction under s 107 is not met.
[35] The appeal is dismissed.
Wylie J
13 Police v M [2013] NZHC 1101, [2013] NZAR 861; and Simmons v Police [2014] NZHC 2488.
14 Iosefa v Police, above n 11, at [36].
15 Police v Roberts [1991] 1 NZLR 205 (CA) at 210.
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