C v Police

[2022] NZHC 878

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-55

[2022] NZHC 878

BETWEEN

C

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

6 April 2022

Counsel:

C J Tennet for Appellant

H R Hancock for Respondent

Judgment:

29 April 2022

REASONS JUDGMENT OF ELLIS J

[1]    On 8 March 1996, when C was 21, she was convicted of being a party to unlawful sexual intercourse with a girl aged 12-16 years.1 She had pleaded guilty to that charge. Her then-partner, H, had also pleaded guilty as a principal to the charge. The girl in question was a few months shy of her 16th birthday at the time of the offending.

[2]    C was sentenced to a six-month suspended prison sentence and six months of supervision. She had never offended before. Since then, she has committed a very small number of minor offences.

[3]    Some 25 years later—on 20 December 2021—Gwyn J granted C an extension of time to appeal her sentence.2 She determined the delay was, for various reasons,

1      Crimes Act 1961, s 134(1) and s 66(1).

2      C v New Zealand Police [2021] NZHC 3560. Strictly speaking—and as Gwyn J expressly acknowledged—an appeal that is predicated on the contention that the appellant should have been

C v NEW ZEALAND POLICE [2022] NZHC 878 [29 April 2022]

explicable and that, on the face of it, there was merit in the argument that C should have been discharged without conviction, which apparently had not been considered at sentencing.

[4]    C’s appeal was heard before me on 6 April 2022. In a results judgment issued the following day I allowed the appeal and granted C a discharge without conviction, with reasons to follow. These are those reasons.

New “evidence” and background material

[5]    Police had no objection to the admission, on appeal, of further evidence from C about relevant matters subsequent to her 1996 conviction. As will be seen, those matters were addressed quite extensively by Gwyn J in the course of her judgment. I discuss them in more detail later in this judgment.

[6]    As far as the offending itself was concerned, Mr Tennet initially indicated that he might seek to adduce further evidence about that, too.. But prior to the hearing he sensibly recognised that the logistical difficulties presented by that course (some    25 years after the event) counted against it. He therefore agreed with Mr Hancock that matters would proceed largely based on the 1996 summary of facts which formed the basis of C’s guilty plea.

[7]    That position is, however, slightly complicated by the fact that the only account now existing of C’s sentencing itself appears to be a brief newspaper article published at the time and helpfully provided to the Court at an earlier point by Mr Hancock. Gwyn J referred to it in her judgment and I propose to do so too. Needs must. Also available to the Court is the statement made by the complainant to Police in 1996, which I consider where relevant. I can see no prejudice to either party in doing so.

discharged without conviction is an appeal against both conviction and sentence. Her grant of leave to appeal “against sentence” needs, I think, to be understood in light of the other possibility which she was addressing, which was that C should be granted leave to appeal her conviction and that a retrial potentially be ordered.

The summary of facts

[8]    The summary of facts records that at the relevant times C worked part-time at a store where her then-partner, H, worked as a manager. The victim (A) also worked full time at the store. As noted earlier, A was 15 and C was 21. H was a little older.

[9]The summary records that:

On Saturday 10 February 1996, the victim was invited to a party with both defendants at a local hall.

The victim, not accustomed to drinking, had several bottles of beer, and became quite intoxicated.

After the party, at approximately 11.30 pm, the defendants took the victim back to their flat.

[H] undressed the victim, and then undressed the defendant [C]. [H] undressed himself and all three then got into bed.

[H] then got the victim to commit indecencies upon [C], while he watched.

[C] then instructed the victim to have intercourse with [H].

[H] then applied KY jelly to his penis, and had sexual intercourse with the victim, while [C] fondled the victim’s breasts. [H] did not use a condom.

Some time later, the victim went to the bathroom, and realised that the room was spinning, due to her level of intoxication.

She returned to bed, and [H] again had intercourse with her.

All three fell asleep, and were woken at approximately 5.30 am, by a friend of the victim’s who was looking for her.

Both defendants were spoken to by Police some days later. They admitted the fact as outlined.

In explanation, they stated that the victim was a willing party throughout the entire night, and that nothing would have happened had she not wanted it to.

Sentencing

[10]   As noted earlier, the only available account of C’s sentencing is the brief report published in the Evening Post on 19 April 1996. It reported:

A young … couple’s sexual threesome has resulted in suspended prison sentences.

In the Wellington District Court yesterday, a lawyer for the man involved said the girl was a willing partner in the February 10 events which were an offence only because she was just short of 16 years old.

Defence counsel Paul Surridge said she was no stranger to alcohol and had already lived in a lesbian relationship.

[H], 23, and his fiancée [C], 21, were each sentenced to six months jail suspended for six months, and six months supervision by a community corrections officer.

Further offending could activate the jail sentence.

[H] pleaded guilty to having sex with the girl and [C] pleaded guilty to aiding in the commission of the offence.

The court heard previously that the three spent the hight together after a party. Police said the girl was quite intoxicated.

Judge Arthur Middleton said he accepted it was not a case of [H] leading the girl astray.

[C]’s lawyer, Jackie Anderson said [C] had a tragic history. She had been in the care of the State since the age of 18 months.

Her three-year relationship with [H] was her first close bond.

Miss Anderson said [C] claimed she was more responsible for what happened than [H].

[11]   There is nothing to suggest that the possibility of a discharge without conviction for C was raised at this time.

Applicable law and procedure

[12]   C’s conviction was entered before the enactment of the Criminal Procedure Act 2011 (the CPA). In accordance with s 397(2) of that Act, Ms C’s appeal must be heard and determined in accordance with the Summary Proceedings Act 1957 (the SPA), as if that Act was still in force.

[13]   Section 115 of the SPA provides that appeals against conviction (including appeals against sentence) are general appeals. Section 119 provides that general appeals are by way of rehearing and that the High Court has full discretionary powers to hear and receive further evidence, if that evidence could not in the circumstances reasonably have been adduced at the hearing. And s 121 relevantly provides:

121     High Court to hear and determine appeal

(1)The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

(2)In the case of an appeal against conviction, the High Court may—

(a)Confirm the conviction; or

(b)Set it aside; or

(c)Amend it and, if the Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the offender in any other way that the convicting Court could have dealt with him on the conviction as so amended.

….

(3)In the case of an appeal against sentence, the High Court may—

(a)Confirm the sentence; or

(b)If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

…

[14]   There is no dispute that to “deal” with an offender “in any other way” can include discharging him or her without conviction. In 1996 that dispositional option was governed by s 19 of the Criminal Justice Act 1985. It provided:

19 Discharge without conviction

(1)Where 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 a minimum penalty is expressly provided for.

(2)A discharge under this section shall be deemed to be an acquittal.

…

[15]   In Police v Roberts, the Court of Appeal explained that the central consideration under s 19 was whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence:3

What the Court must do is “to balance all the relevant public interest considerations as they apply in the particular case”. The public interest may require a conviction to be entered because of the nature of the offence and the particular occupation or proposed occupation of the offender. On the other hand, the offence may be so trivial that public interest does not call for a conviction to be recorded … [In] the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court’s discretion “if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence.” That must be the overriding consideration. The words, “out of all proportion” point to an extreme situation which speaks for itself.

[16]   As Gwyn J noted, Roberts made it clear that, when considering whether to discharge a defendant under s 19, a Court was required to assess:

(a)the nature of the offence and the gravity with which it is viewed by Parliament;

(b)the seriousness of the particular offending;

(c)the circumstances of the defendant in terms of the effect on “[their] career, [their] pocket, [their] reputation and any civil disabilities consequential on conviction”; and

(d)any other relevant circumstances.

[17]Those are the matters I discuss, in turn, below.

3      Police v Roberts [1991] 1 NZLR 205 at 210.

The nature of the offence and the gravity with which Parliament viewed it

[18]   At the time of Ms C’s offending, s 134 of the Crimes Act 1961 relevantly provided:

134     Sexual intercourse or indecency with girl between 12 and 16

(1)Every one is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any girl of or over the age of 12 years and under the age of 16 years, not being his wife.

…

(3)It is a defence to a charge under this section if the person charged proves that the girl consented and that he is younger than the girl:

Provided that proof of the said facts shall not be a defence if it is proved that such consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(4)It is a defence to a charge under this section if the person charged proves that the girl consented, that he was under the age of 21 years at the time of the commission of the act, and that he had reasonable cause to believe, and did believe, that the girl was of or over the age of 16 years:

Provided that proof of the said facts shall not be a defence if it is proved that the consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(5)Except as provided in this section, it is no defence to a charge under this section that the girl consented, or that the person charged believed that the girl was of or over the age of 16 years.

(6)The girl shall not be charged as a party to an offence committed upon or with her against this section.

(7)No one shall be prosecuted for any offence against this section, except under paragraph (a) of subsection (2) thereof, unless the prosecution is commenced within 12 months from the time when the offence was committed.

[19]I begin by observing that, since that time:

(a)the maximum penalty for an offence against s 134(1) has been raised to 10 years’ imprisonment; and

(b)the statutory defences have become, in some respects, more liberal and in others, more restricted in that:

(i)the s 134(3) defence has been removed; but

(ii)the s 134(4) defence has been expanded so that it applies regardless of the age of the defendant.

[20]   Neither of these changes in the law were brought to the attention of Gwyn J. They are, however, material for the reasons I now explain.

[21]   The 2005 increase in penalty is potentially relevant to the first limb of the Roberts inquiry because, in 1996, the maximum penalty for an offence against s 134 was the same as the maximum penalty for indecent assault.  It was only the former  (s 134) penalty that was increased in 2005. So viewing the matter through a 1996 lens (as I must) it might reasonably be supposed that Parliament then had a slightly different view as to the inherent seriousness of offending of this general kind.4 If Parliament viewed the seriousness of offending under s 134 as on a par with the seriousness of indecent assault, that makes the (quite numerous) cases where discharges without conviction have been given in indecent assault cases arguably more relevant and useful, for comparative purposes, than they might seem at first blush.5

[22]   The other important and general point is that despite the relatively high maximum penalty, s 134 is a blunt charging instrument; it potentially captures a wide range of behaviour, from the barely criminal to the much more serious. On the one hand it captures (as it did here):

(a)an act of intercourse that, had it taken place only a few months later— once the complainant had turned 16—would not constitute an offence under s 134 at all; and

(b)a case where the offender is not so much older than the complainant and may, him or herself, be still quite vulnerable.

4      Although it may also be observed that then, as now, the maximum penalty for an offence against s 134(1) was exactly half the maximum penalty for unlawful sexual connection.

5      Dickins v R [2012] NZCA 265; DV v R [2021] NZHC 1077.

[23]   As well, the 1996 version of s 134 would see an offender aged 21 or over convicted even if he or she believed on reasonable grounds (or after reasonable inquiry) that the complainant was 16. As the Court of Appeal noted in Kahia v R, the provision of a defence of mistake is a matter of justice; its absence in such a case offends a fundamental principle of the common law.6

[24]   For these reasons, I would pitch the gravity with which Parliament viewed offending under s 134 at a somewhat lower level than I think Gwyn J did. In my assessment it was regarded by Parliament—in 1996—as an offence of moderate seriousness.

Seriousness of the particular offending

[25]   The later changes to the defence provisions are also potentially relevant here. As just noted, in 1996 the s 134(4) defence (consent and reasonable belief that the complainant was 16) would not have been available to Ms C because she was 21 years old at the time, rather than “under” that age.

[26]   As it happens, however, the material before the Court makes it clear that A’s consent, and her closeness to the “cut-off” age of 16, were matters expressly raised as mitigating factors by defence counsel at sentencing. Before me, Mr Hancock expressly advised that he did not seek to adduce any evidence to counter the submission that the summary of facts leaves open the possibility that A was, indeed, a willing participant.

[27]   While it is more difficult—without adducing fresh evidence—for C to say now that she was under a misapprehension about A’s age, the unavailability to her in 1996 of a defence of mistake goes quite some considerable way to explaining why it was not a focus at sentencing.7 But in any event there is at least arguably a basis in the complainant’s own statement (made at the time) for suggesting that she may have appeared, and acted, older than she was: although on the one hand she maintained that

6      Kahia v R [2019] NZCA 612 at [26].

7      It may also be observed that, until the enactment of the Sentencing Act 2002 (and s 24 of that Act in particular), there was no defined procedure for assessing disputed facts prior to sentencing. The enactment of s 24 reflected the recommendations of the Law Commission in Proof of Disputed Facts on Sentence (NZLC R76, 2001).

everyone at her place of employment (including C) knew that she was 15, she also spoke about being involved at the time in a (sometimes sexual) relationship with another woman.8 Presumably this is what the sentencing Judge meant when he (reportedly) said that he accepted it was not a case of [H] leading the complainant astray.

[28]   As counsel acknowledged, it is not possible to interrogate these factual matters much further some 25 years after the event. But, in my view, they may well have played a part in the sentencing Judge’s view that both C’s and H’s offending was at the lowest end of the s 134 scale. That this was his view is reflected in the (effectively) non-custodial sentence he imposed on them both.

C’s relevant circumstances (consequences of conviction)

[29]   I note at the outset that this is not the first case of a defendant seeking on appeal to obtain a discharge without conviction well after the event due to more recent personal developments said to make the effect of the earlier conviction disproportionately severe. Moreover, appeals of that kind have, on occasion, succeeded.9

[30]   In this case, the consequences now of C’s historic conviction were canvassed thoroughly by Gwyn J. They plainly influenced her decision to grant leave to appeal so long out of time.

[31]   First, Gwyn J noted that C’s relationship with H broke down soon after their convictions. C was then in a relationship for 20 years and has two special needs children from that relationship. Then:

[6]        … From 2004 to 2016, Ms C was an early childhood teacher, employed by a national provider of in-home childcare and early childhood education services. Ms C had told her employer about her criminal record when she commenced employment with them, but after the Vulnerable Children Act 2014 came into effect her employers terminated her employment, in June 2016, on the basis that her previous conviction was for a “specified

8      A point apparently noted by defence counsel at sentencing. Whether a complainant’s appearance can suffice for the purposes of establishing reasonable grounds for a mistake as to age was discussed at some length in Kahia.

9      McNeil v Police [2018] NZHC 1685; Kearse v Police [2020] NZHC 3255.

offence” in Schedule 2 of the Act. The Act provides that a core worker convicted of a specified offence cannot be employed or engaged unless that person applies for an exemption. Ms C’s employer advised her that, while she was entitled to go through the exemption process, they would not re-register her given their internal policies.

[7]        Subsequently Ms C has applied for more than 40 jobs in other areas but has been unsuccessful.

[32]   Later in her judgment, Gwyn J specifically noted that in C v R the Court of Appeal did not consider the effect of s 28 of the Vulnerable Children Act to be a persuasive ground for the grant of a discharge without conviction.10 She said:

[65] … The Court discussed s 35 of that Act which provides a process to seek an exemption (which may be qualified or contain conditions) from the chief executive of any key agency. C had applied for an exemption and the Chief Executive of Oranga Tamariki had made a preliminary decision to decline her application, but provided C with an opportunity to provide further information targeted on specific areas of concern. The Court of Appeal said that, in the circumstances of that case, the ability to seek a statutory exemption provided “sufficient scope to look beyond the mere fact of a conviction and engage in a robust examination of C’s offending and later rehabilitative efforts.”

[33]But, the Judge said:

[66]      The circumstances of that case were somewhat different. In Ms C’s case her former employer, a national provider of in-home childcare and early childhood education services, who was aware of Ms C’s conviction from the outset, on the enactment of the Vulnerable Children Act, advised her that “While you are entitled to go through this exemption process, we would not re-register you given our internal policies on the matter.”

[67]      That in itself differentiates this case from C v R and [may] be a persuasive ground for a discharge without conviction. Added to that is Ms C’s inability to access emergency housing or live-in Women’s Refuge services at a time of critical need. In my view, that combination of effects, all of which would have been largely unforeseen or foreseeable, means that there is clear practical utility to the remedy sought and Ms C may ultimately be able to make out the test for a discharge without conviction.

[34]   I agree with Gwyn J that the consequences for C of her conviction are severe. She is being deprived of existing and future gainful employment in circumstances where she clearly poses no risk and where she has special needs children to support. In a time of great need it has prevented her from securing emergency housing for her and those children, despite (again) the absence of any relevant risk.

10     The “C” in that case is, of course, not the “C” in this case.

Are the consequences of conviction out of all proportion to the gravity of the offence?

[35]   In light of the matters canvassed above I consider that the consequences of C’s conviction are out of all proportion to the gravity of the offence. My reading of Gwyn J’s judgment is that she was also of that view. For the reasons I have explained, the case in favour of that conclusion is even stronger than it was before her.

Discretion

[36]   As has often been noted, it will be a rare case where a Judge concludes that the consequences of a conviction are out of all proportion to the gravity of the offence and then exercises his or her discretion against granting a discharge. The present is no exception. The only conceivable concern—that, given the nature of C’s occupation,  it is important for her future employers to know about her conviction—is, in my view, groundless. The relevant events occurred over 25 years ago. C has had no further relevant convictions. Her offending did not involve a young child. She poses no risk.11

Result

[37]   The appeal is allowed. C’s conviction is quashed. On the single charge under ss 134 and 66 of the Crimes Act 1961 she is discharged without conviction.

Rebecca Ellis J

Solicitors:

Crown Solicitor, Wellington for Respondent

11     Evidenced, as well, by the fact that her former employer (who was aware of C’s conviction) was prepared to employ her before the passage of the Vulnerable Children Act.