C v Police HC Auckland CRI 2008-404-307

[2009] NZHC 627

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-307

BETWEEN  C

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         25 May 2009

Counsel:         C Mitchell for the appellant

N Whittington for the respondent

Judgment:      27 May 2009

JUDGMENT OF POTTER J

on appeal against conviction

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3.30 p.m. on 27 may 2009.

Solicitors:           Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:            C Mitchell, 193 Hurstmere Road, Takapuna, Auckland 0622

C V POLICE HC AK CRI 2008-404-307  27 May 2009

Introduction

[1]      The appellant entered guilty pleas in the District Court to two charges of common  assault  contrary to  s  196  of  the  Crimes  Act  1961  and  one  charge  of unlawfully being in a building contrary to s 29(1)(a) of the Summary Offences Act

1981.

[2]      He sought a discharge without conviction under s 106 of the Sentencing Act

2002 (“the Act”) which was declined by Judge Sinclair in the District Court at Auckland on 18 September 2008.  He was sentenced to 125 hours community work and $200 reparation.

[3]      Mr C   now appeals against his conviction and seeks a discharge without conviction.

The offending

[4]      The summary of facts upon which the guilty pleas were entered records that at 11 p.m. on Saturday 8 September 2008 the appellant was at flat 2A/6 Winchester Street in Auckland City.  The appellant had been drinking scotch whisky and was intoxicated.  He climbed down to the balcony of the unit below.  He fell the last part of the distance on to the lower balcony and broke some of the pot plants on the balcony.  He then started to climb back to the floor whence he had come.

[5]      The victims in this case, Mr Evans and Mr Weake, came out on to their balcony to see what was going on.

[6]      From the balcony above to which the appellant had returned, he spoke to the victims about coming down to their unit to pay for the damage caused to the pot plants.  Shortly afterwards he appeared at the doorway of the victims’ unit.

[7]      The appellant then started to make affectionate little slaps to the side of Mr Weake’s face and to make comments about “gays”, which the victims did not appreciate.

[8]      The appellant was constantly inching forward into the victims’ unit.  When Mr Evans tried to stop him from going any further the appellant pushed him hard to the chest and Mr Evans fell backwards.  The appellant then started to comment that the victims were scared and to push both the victims.   He managed to push them both out of their own unit.  When they tried to get back into their unit the appellant pushed over Mr Weake and punched Mr Evans three times in the side of the head.

[9]      Mr Weake got to his feet and tried to help Mr Evans.   The appellant then punched him straight on the nose.  Both victims then retreated into a bedroom in the unit and locked the door.  When they looked out a few seconds later they saw the appellant in the other bedroom using his cellphone.  After about another minute the appellant left the unit.

[10]     The victim impact statement provided by Mr Evans, who was 22 years old at the time of the assault, records that he suffered considerable bruising which lasted over ten days, a broken nose and other cartilaginous damage.  He was obliged to take a week’s sick leave because of the pain and bruising from his injuries.  He reported that since the assault he has not been able to breathe through the left side of his nose due to cartilage damage.

[11]     He said the emotional harm caused by an intruder coming into their home and assaulting him without any provocation has been the hardest aspect to deal with.  His self confidence has been seriously affected.

[12]     Mr Weake was aged 20 at the time of the assault.   His physical injuries included bruising to the sides of his head, to his hands and other parts of his body, and severe concussion.   He suffered headaches for about two weeks and his right hand was too sore for him to write for  about a week.   He was obliged to  get extensions for assignments from the University of Auckland.  He felt anxious and needed to take counselling.

The District Court judgment

[13]     In considering the appellant’s application for a discharge without conviction, Judge Sinclair referred to the provisions of ss 106 and 107 of the Act and to the test in s 107 which requires the Court to be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[14]     She adopted the three step process set out in “BC” v Police HC WN CRI

2003-485-101 2 June 2004, Ronald Young J:

To identify the gravity of the offending; to identify the direct and indirect consequences of the conviction; to consider whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[15]     In considering the gravity of the offending the Judge referred to the judgment in Delaney & Ors v New Zealand Police HC WN CRI 2005-485-22 22 April 2005

Miller J, that regard needs to be had not only to the offence but also anything that might affect the Court’s assessment of overall capability, including guilty pleas, expressions of remorse, the Court’s assessment of how likely it is that the offender will re-offend, the victim’s perspective and any consequences already suffered by way of reparation, community work or publicity.

[16]     The Judge then referred to the details of the offending and the impact on the victims.  She noted that the appellant had made comments disparaging of gay people. She regarded that an aggravating feature of the offending because Mr Evans and Mr Weake were in a same sex relationship and the comments caused them considerable upset.

[17]     She noted by way of mitigation the early guilty pleas and full co-operation with the Police and that the appellant had attended a restorative justice conference with Mr Evans and Mr Weake and had  apologised for his conduct, which was accepted.

[18]     She referred to the serious health issues of the appellant, noting that he has suffered from depression and has also experienced head injuries most recently in

2006 as the result of an accident, for which he had been receiving ongoing medical treatment.   She referred also to the appellant’s history of alcohol abuse and noted that alcohol was a  feature of the offending and  as the result of the appellant’s intoxication he said he had little memory of the events that evening.  She recorded that since the offending, with the support of his family, he had taken positive steps to stop drinking, to better control and address his medical issues and to ensure that offending of this nature did not occur again.

[19]     In relation to the restorative justice conference, the Judge recorded that in an updated statement Mr Weake and Mr Evans said that while they appreciated the opportunity to attend the conference with the appellant and had found it useful, they were firmly of the view the appellant should be held accountable for his offending and  that  a  discharge  without  conviction  should  be  declined.    She  recorded  the victims’ explanation that their opposition to a discharge without conviction was not motivated out of spite, nor an act of revenge or power play.   They described the restorative justice conference as helping significantly with the healing process and expressed the hope that the appellant would learn from his errors and make positive changes in his life.

[20]     The Judge then turned to consider the direct and indirect consequences of a conviction for the appellant.  She first considered the effects on employment.  She noted that the appellant was on track for a first class honours degree with a straight A average, as an electrical engineering student at AUT; that he was intending to study for a PhD and within the next five years also to apply for engineering and research positions with institutes such as NASA and the European Space Agency or MAF Works in Massachusetts; that he was also considering the possibility of research work at MIT or Stanford.

[21]     She referred to the appellant’s affidavit in which he stated that a conviction would seriously restrict his chances of any of these overseas positions.  She noted there was no evidence produced to support that contention and she said that in the absence of clear evidence that it would be a bar to the appellant entering employment

with any of those institutions she could place little weight on that aspect.  She further observed there was an argument that such entities should know about the appellant’s history including any convictions entered against him.

[22]     She then turned to consider travel, noting that the employment opportunities identified by the appellant would involve travel to the United States.  She said there was no evidence that convictions on the charges to which the appellant had pleaded guilty would prevent travel to the United States or would restrict the appellant ever entering the United States.

[23]     She then turned to the third step and concluded that taking all matters into account, she was not satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offending in this case.   She emphasised that the offending involved a serious assault on two complete strangers in their own home resulting in injury to both men.   She said in the absence of evidence that would give grounds to find the direct or indirect consequences would be  out  of  all  proportion,  she  was  strongly  of  the  view  that  the  gravity  of  the offending was such that the application under s 106 must be declined.

Sections 106 and 107 Sentencing Act 2002

[24]     Section 106 of the Act confers on the Court a discretion to discharge an offender without conviction unless any enactment applicable to the offence requires the imposition of a minimum sentence.  A discharge under s 106 is deemed to be an acquittal.

[25]     Section 107 provides:

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.

[26]     The Court of Appeal stated in R v Hughes [2008] NZCA 546 at [8]:

Although the heading in s 107 refers to “guidance for discharge without conviction”, it is clear that the section is mandatory.   Before a Court may exercise its discretion under s 106 to discharge without conviction, the Court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.   Thus s 107 provides a gateway through which the discharge without conviction must pass.   It stipulates a pre-condition to the exercise of the s 106 discretion.

[27]     The Court determined at [41] that 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 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 for an order to be made under s 106 to deal with the offender.

Onus of proof

[28]     The judgment in Hughes also confirms there is no onus on the offender to establish that the disproportionality test has been met. In terms of s 107 the requirement is that “the Court is satisfied” it has been met. Section 107 imports no onus of proof. The sentencing Judge can assess all information that is relevant to the disproportionality analysis. The requirement is simply for the Court to be satisfied that the disproportionality test has been met. However, the Court said it could be expected in the normal run of things that an offender seeking a s 106 discharge would put before the Court information which if accepted would provide a basis for the Judge to be satisfied that the s 107 test is met and that a decision in the offender’s favour under s 106 is appropriate (at [53]).

Approach on appeal

[29]     The  Court  of  appeal  also  clarified  in  Hughes  that  whether  the  Court  is satisfied the s 107 threshold has been met is a matter requiring judicial assessment which can be subject to appeal on normal appellate principles: R v Rajamani [2008]

1 NZLR 723 (SC) at [5]. The Court’s discretion arises under s 106 only when the

Court is satisfied that the disproportionality test under s 107 has been met.

[30]     Accordingly in terms of Austin, Nichols & Co Inc v Stichting Lodestar [2008]

2 NZLR 141 (SC) at [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[31]     I turn to assess the three steps in the disproportionality test under s 107 to reach my own conclusion as to whether the “gateway” test in s 107 is satisfied so that the Court’s discretion to discharge without conviction under s 106 may be invoked.  The three step approach was set out by Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) as further explained in Police v Roberts [1991] 1

NZLR 205 (CA), and is now provided in s 107.  This was the three step approach adopted and applied by Judge Sinclair in the District Court.  But in accordance with Austin, Nichols, I approach afresh the assessment of the disproportionality test in this case.

Gravity of the offending

[32]     There can be no doubt that the assaults of which the appellant was convicted, albeit  arising  out  of  the  same  incident,  were  violent  assaults  on  two  complete strangers in the safety of their own home, entirely unprovoked.

[33]     The Crown in submissions identified the following aggravating factors which are not disputed by the appellant and with which I agree:

a)       Actual violence was used: s 9(1)(a) of the Act.

b)Ongoing harm and damage was caused by the offending: s 9(1)(d).  I have already referred to the injuries and physical, emotional and psychological consequences for the two victims.   In addition there was property damage, a pot plant was broken.   This I regard as a

minor consequence and one that can be compensated by the reparation ordered.   Of more significance are the injuries and emotional and psychological effects for the victims.

c)        The assaults occurred while the appellant was unlawfully inside the victims’ home: s 9(1)(b).

[34]     The Crown also raised in written submissions that s 9(1)(h) was invoked because the offender committed the offence “partly or wholly because of hostility towards a group of persons who have an enduring common characteristic” (in this case their sexual orientation).

[35]     The  appellant  strongly  disagrees  that  he  was  motivated  by  any  hostility towards the victims on account of their sexual orientation, and in oral submissions Mr Whittington accepted it is probably not correct to draw an inference of hostility towards the victims.   However, the summary of facts accepted by the appellant, refers to him making “affectionate little slaps” to the side of Mr Weake’s face and to making “gay comments” which the victims did not appreciate.  Thus, while I accept that the offending was not motivated by hostility towards the victims, the physical violence was obviously accompanied by verbal and physical references and acts, based on or alluding to the victims’ sexual orientation which I consider is properly regarded as an aggravating factor of the offending.

[36]     Relevant mitigating factors personal to the appellant include his early guilty pleas to the charges (the pleas were not at the earliest opportunity but were entered soon after his counsel had explored the likelihood of success of a defence of automatism).  At the age of 22 years (20 at the time of the offending), Mr C   has no previous convictions of any kind.  He is remorseful and apologised to the victims personally at a restorative justice conference.   He was fully co-operative with the Police, limited only by his absence of recollection of the details of the incident.  He has  taken  steps  since  the  offending  to  address  his  problems  with  alcohol,  as evidenced by a letter from Community Alcohol & Drug Services (CADS) of the Waitemata District Health Board dated 8 December 2008 and a certificate from the Relapse Prevention Group of CADS.

[37]     I also take into account his previous history of depression which Dr Richard Powell, medical director of the Three Kings Accident & Medical Clinic states in a letter dated 13 June 2008, Mr C   has suffered since age 15.  That letter also refers to a head injury incurred on 4 February 2006, the effects of which require ongoing care under Dr Greg Finucaine and medication.  Dr Powell also refers to the alcohol issue and that the appellant had been binge drinking in 2007 to a level with reported blackouts.  Dr Powell states that from his knowledge of the appellant his aggressive behaviour is out of character and he was surprised that the appellant acted aggressively while under the influence of alcohol.   With the concurrence of Dr Finucaine, the appellant was strongly advised to totally abstain from alcohol, advice which  the  appellant  appears  to  have  treated  seriously.    In  these  efforts  he  is supported by his family.

[38]     However, while accepting the appellant’s apology offered at the restorative justice conference, the victims have clearly instructed counsel for the Crown that they had no idea this would later be used to support an application for discharge without conviction, to which they are strongly opposed.   It is also noted in the written submissions of the Crown that the agreement at the restorative justice conference that the  appellant  would  undertake community work  for,  or make  a financial contribution to Rainbow Youth, has not been satisfied.  This point was not addressed in written or oral submissions by counsel for the appellant and I assume is not contested.  However, it is not a significant factor in the overall assessment I must make.

[39]     In summary, this was serious violent offending mitigated to some extent by the legitimate personal factors of the offender to which I have referred.

Direct and indirect consequences of a conviction

[40] The aspirations of Mr C in respect of future study and employment as presented to this Court were summarised by Judge Sinclair and are referred to above at [20]. Mr Mitchell submitted that Mr C is academically gifted and destined for the highest level of either academia or research in either an overseas prestigious university (Harvard, Stanford, MIT) or in a leading institution (Nasa, European

Space Agency or similar).  He submitted that in 20-30 years time Mr C   is likely to be a leader in his field, whatever that may be.

[41]     Since the decision of the District Court, Mr C   has achieved the degree Bachelor of Engineering in electrical  and electronic engineering with  first  class honours from the Auckland University of Technology.  The certificate is dated 20

February 2009.   The record of his academic results shows excellent grades, particularly in 2008 where he achieved five A+ grades, one A and one B+.   Mr C   is clearly a gifted student who has considerable potential.

[42]    In endeavouring to place relevant information before the Court, counsel presented a number of emails to relevant overseas institutions where he sought a response to the general situation of an outstanding young scholar with convictions for serious criminal offences (assault) who would wish to make a future formal application to attend the institution.  The question was asked whether his past record would prove an impediment to an interview.  Perhaps unsurprisingly, no responses were received that confirmed or denied the likely future attitude to the situation presented.   Such responses as were received indicated that a specific application would need to be made for a place in the institution of choice.

[43]     However, there is no information which indicates the convictions are likely to have an effect of precluding him from obtaining a position to pursue further study or from obtaining employment with the institutions of choice he has indicated if they were to otherwise consider him a suitable candidate.   (I deliberately refer to “information”, for the Court is not limited to consideration of “evidence”, but may take into account all relevant information and material placed before it).

[44]     Mr Mitchell accepted there is no information that automatic exclusion would be a likely consequence of a conviction.   He agreed it could only be a matter of speculation.   The most he could responsibly submit was that it was possible the convictions would operate as a bar.   He asked the Court to take a “pragmatic approach” and consider if two similarly qualified candidates were under consideration, the chances of the candidate with criminal convictions succeeding would be remote.

[45]     The Crown submitted that the Court should be careful before effectively concealing from bodies with an interest in the matter, the fact of the convictions: Roberts  v  Police  (1989)  5  CRNZ  34;  Steventon  v  Police  HC  AK  A108/01  2

November 2001, Chambers J at [22] where the Judge observed:

It is generally better for the offending to be noted by way of a conviction.  It is then up to the offender to explain to those authorities why in the particular circumstances the conviction should be looked one with a benevolent eye.

[46]     The  Crown  further  pointed  to  the  requirement  of  non-immigrant  visa applicants for admission to the United States to answer the following questions:

Have you ever been arrested or convicted for any offence or crime, even though subject of a pardon, amnesty or other similar legal action?”

As the Crown pointed out, the absence of a conviction would not assist Mr C   when addressing that question, but the form indicates that a positive response does not  automatically  signify  ineligibility  for  a  visa  but  may  require  a  personal appearance before a consular officer.

Are the direct and indirect consequences of a conviction out of all proportion to the gravity of the offence?

[47]     I turn to the balancing exercise which is necessary to address the issue at the third step of the test under s 107.

[48]     As I have concluded, the gravity of this offending was very significant.  The more serious the offending, the less likely that a discharge can be granted.  On the other hand as Randerson J said in Iosefa v Police HC CHCH CIV 2005-409-64 21

April 2005 at [35]:

The nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. … the higher the likelihood and the more serious the consequences, the more likely it is that the statutory [disproportionality] test can be satisfied.

[49]     I approach the assessment on the basis that it is not necessary for the Court to be satisfied that the direct and indirect consequences would inevitably or probably

occur.  Rather it is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur: Iosefa at [34]; Alshamsi v Police HC AK CRI 2007-404-62 15 June 2007, Asher J at [20].

[50]     In this case, on all the information available to the Court I cannot be satisfied that there is a real and appreciable risk the appellant would be barred by the convictions   from   future   study   or   employment   opportunities   with   overseas institutions, or from obtaining the necessary visas to travel to the countries of his choice.  It is no doubt highly likely he will need to explain the convictions in any such  future  application,  and  they  will  be  a  factor  the  relevant  authorities  or institutions weigh in the overall assessment of the merit of his application, along with his qualifications and his abilities for the position for which he has applied.

[51]     I have considered the decision in Smoothy v Police HC INV CRI 2008-425-

34 17 December 2008, Chisholm J.  It was helpfully provided by the Crown at the hearing in response to my inquiry whether counsel could provide any authority in which the s 107 test had been considered in the context of serious offending such as in this case.

[52]     Mr Smoothy was convicted of common assault and entered a guilty plea.  His application for a discharge under s 106 was declined and he was fined $400 and ordered to pay Court costs of $130.   On appeal he was granted a discharge under s 106 subject to payment of Court costs and a donation of $400 to the Salvation Army.

[53]     Mr Smoothy’s offending occurred in an incident in a bar in the small hours of the morning when there was a  confrontation between Mr Smoothy and  the  bar manager about a cellphone belonging to Mr Smoothy’s female companion which had been taken by the bar manager.   The appellant reacted badly and punched the bar manager in the face causing him to fall to the floor.  He suffered a cut to his nose and eye socket but no permanent injuries.  After this occurred, Mr Smoothy immediately called an ambulance and began tending to the bar manager.   He was fully co- operative with Police and very remorseful.

[54]     The bar manager in his victim impact statement took full responsibility for allowing Mr Smoothy and his female companion to be in the bar when he (the bar manager) was not in a position to supervise because he was too drunk.  He said he thought he fully deserved the punch.   Apparently the Police did not oppose the application for a discharge under s 106.

[55]     Mr Smoothy was a professional skier aged 22 with no previous convictions. He was a member of the New Zealand free ski team and ranked number one for big mountain skiing.   He competes internationally and undertakes promotional work internationally which involves travel to North America and Europe.

[56]     In assessing the gravity of the offending, Chisholm J accepted, as did the victim,  that  the  victim  made  an  offensive  remark  and  Mr  Smoothy’s  response, though not justified, was a spontaneous reaction involving a single punch, immediately  followed  by  remorse.    The  Judge  said  it  was  not  clear  why  the sentencing Judge had adopted a critical view of the victim’s willingness to accept responsibility.  His view was that the Judge had significantly overstated the gravity of the offending.

[57]     The Judge accepted there was a real and appreciable risk there would be problems for the appellant’s entry into Canada and possibly also the USA and that the impact of those consequences on his current career had to take into account that travel and his professional career were inextricably linked.  Chisholm J was satisfied that the approach of the sentencing Judge was seriously flawed and in the circumstances of the case the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  Accordingly he allowed the appeal and discharged Mr Smoothy under s 106.

[58]   This case provides a useful comparison, but in my view is clearly distinguishable.  In the first place the offending was at a much lower level of gravity than in this case, particularly given the admitted provocation and responsibility for the incident accepted by the victim.  Secondly, the direct and indirect consequences of a conviction were accepted to pose an immediate real and appreciable risk for the appellant in the context of his current professional career.

[59]     In this case, I am not satisfied the direct and indirect consequences of the convictions are out of all proportion to the gravity of the offending.  The offending was very serious.  The possible consequences are speculative and do not present a real and appreciable risk of occurrence.   Much, I anticipate, will depend on Mr C  ’s progress and conduct in the immediately ensuing years.   If he is able to pursue a PhD in New Zealand with the success he has demonstrated to date in attaining  a  Bachelor  of  Engineering  degree  with  first  class  honours,  while maintaining  a  disciplined  approach  to  his  medical  issues  which  enables  him  to achieve not only an offence free record in future, but a track record for sound conduct and behaviour, his regrettable offending in September 2007 and the consequent criminal convictions, will be able to be put into appropriate perspective on future applications for study or employment opportunities.

[60]     Balancing as I must, the relevant factors as presented, I am drawn inevitably to the conclusion that the disproportionality test in s 107 is not satisfied.

Result

[61]     The appeal is dismissed.