Coleman v Police
[2015] NZHC 1265
•8 June 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000032 [2015] NZHC 1265
KIM COLEMAN
v
NEW ZEALAND POLICE
Hearing: 2 June 2015 Appearances:
John Munro for the Appellant
Zoe Hamill for the RespondentJudgment:
8 June 2015
JUDGMENT OF MOORE J [Appeal against conviction and sentence]
This judgment was delivered by me on 8 June 2015 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
COLEMAN v NEW ZEALAND POLICE [2015] NZHC 1265 [8 June 2015]
Introduction
[1] On six occasions in the first part of 2014 Mrs Coleman supplied alcohol to three young persons. Additionally, over a period of about three weeks in March
2014 she sent five sexually explicit images to her 14 year old daughter and her
daughter’s 15 year old boyfriend.
[2] Mrs Coleman pleaded guilty in the District Court. She applied for a discharge without conviction under s 106 of the Sentencing Act 2002.
[3] Judge Gibson declined her application. He convicted and fined her $700 on the representative charge relating to the indecent images and $350 on each of the charges of supplying alcohol to a minor. She appeals that sentence.
Background
[4] Mrs Coleman is a 41 year old woman with no previous convictions. She has two daughters who, at the time of the offending, were aged 14 and 12. In early 2014
Mrs Coleman’s older daughter began a relationship with a 15 year old boy. Mrs Coleman became increasingly involved in the relationship. She communicated directly with both her daughter and the boyfriend.
[5] Between 10 and 31 March 2014, Mrs Coleman sent the couple five sexually explicit images. These have been classified as restricted by the Office of Film and Literature Classification.
[6] Three of the images showed genitalia, both male and female, infected by sexually transmitted diseases. Another of the images was pornographic and included a video link. The fifth image depicted a woman’s face and neck, digitally altered so as to depict the mouth and nose as a vagina and labia.
[7] The three images depicting sexually transmitted diseases were classified as objectionable only if distributed to those under the age of 16. The latter two were classified as objectionable only if distributed to those under 18 years. In respect of these offences Mrs Coleman was charged with a single representative charge brought
under s 125(1)(a) of the Films, Videos and Publications Classification Act 1993. It is a fine-only offence and is punishable by a maximum penalty of $3,000.
[8] Mrs Coleman was also charged with supplying alcohol to minors contrary to s 241 of the Sale and Supply of Alcohol Act 2014. This offence, too, is a fine only offence carrying a maximum penalty of $2,000.
[9] The summary of facts reveals that the Police’s investigation uncovered a pattern of behaviour by Mrs Coleman involving the supply of alcohol to young people. This included communicating with the young people about the choice of alcohol, the purchase price and what particular type of alcohol was for sale on special.
[10] She supplied alcohol to three young people on the five occasions alleged. One of the young people was her oldest daughter’s boyfriend aged 15. She also supplied alcohol to another 15 year old and to a 14 year old.
[11] In her explanations to the Police she denied supplying her daughter’s boyfriend with alcohol but admitted supplying the other 15 year old on the two occasions as charged. She admitted only to being present when the 14 year old was intoxicated.
District Court decision
[12] In relation to the charges involving the transmission of indecent images his Honour accepted this was done without any intention on Mrs Coleman’s part to corrupt her daughter or her daughter’s boyfriend. He accepted the submission that Mrs Coleman’s conduct was educative in the sense she was concerned the couple were engaging in sexual activity and wanted them to be aware of the possible consequences.
[13] In relation to the charges of supplying alcohol the Judge noted that this behaviour was part of a pattern and involved Mrs Coleman communicating with the young people in relation to their choice of alcohol, price and matters of that kind. In this context the Judge made reference to the purchase of a bottle of Vodka for her
daughter’s boyfriend and taking her daughter to the boyfriend’s address, knowing his parents were away. He said that the alcohol was consumed at that address and the young people subsequently engaged in sexual activity. However, these facts related to a charge which had been withdrawn and their inclusion in the Judge’s sentencing comments was an error.
[14] Judge Gibson then considered Mrs Coleman’s personal mitigating factors which he accepted could be taken into account in assessing the gravity of the offending in the context of a s 106 application. He referred to the psychological reports prepared by Dr Blackwell and, in particular, the psychologist’s opinion that Mrs Coleman had tried to be a friend to her children and their friends rather than dealing with them in an appropriately adult and parentally mature fashion. The Judge acknowledged that Mrs Coleman accepted her actions were inappropriate. He noted Dr Blackwell’s observation there had been a significant improvement in Mrs Coleman’s attitude and was confident she would not re-offend.
[15] In the Judge’s assessment of the gravity of the offending he recorded he considered the more serious offending was the supply of alcohol to minors given the number of instances and the period over which the offending took place. He characterised these breaches as “relatively serious”. Conversely, the Judge considered the distribution of the restricted images as “a more moderate circumstance” because he accepted Mrs Coleman’s intention was “purely educative”.
[16] In assessing the consequences of a conviction the Judge noted that Mrs Coleman was currently employed but was intending to seek alternative employment. He considered the submission she would be disadvantaged in competing for a new job with a criminal conviction but noted that there was no specific course of employment proposed nor was Mrs Coleman a member of any professional or specific occupation where a conviction might well trigger disciplinary consequences. He accepted that anyone with a conviction of this type may well suffer genuine prejudice as a simple consequence of the conviction but given the offences are punishable by way of a fine only his Honour was of the view that this would significantly mitigate any adverse impact an employer might take from the fact of a conviction if it was to become known.
[17] On the question of whether the convictions might affect Mrs Coleman’s ability to travel overseas, his Honour noted that her existing employment required travel. More specifically her younger daughter, who is a member of a dance troupe, is planning to travel to Australia and the United States later this year and Mrs Coleman intends to accompany her. Mrs Coleman expressed concerns that a conviction would be likely to prevent this travel.
[18] On this question his Honour observed that there was no evidence, other than a general concern, that travel to Australia would be restricted, noting that entry to Australia requires only the disclosure of convictions for offences carrying a penalty of two years or more. On the question of travel to the United States he noted that restrictions were well known but would not necessarily prevent travel although disclosure of the conviction is required.
[19] The Judge thus dismissed the claims in relation to travel restriction as
“merely speculative”.
[20] For these reasons he refused the application for discharge under s 106 of the
Sentencing Act.
[21] He then entered convictions and proceeded to sentence Mrs Coleman. After noting the maximum penalties for the sexually explicit images the Judge said he would have ordinarily imposed a fine of $1,000 but by reason of Mrs Coleman’s previous good character and the fact she had pleaded guilty at the first reasonable opportunity, he discounted that fine and imposed a fine of $700.
[22] In relation to the alcohol-related charges he noted he would have, but for the matters of mitigation referred to above, fined the defendant $500. In the circumstances he reduced that to $350 on each charge.
Approach on appeal
[23] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. This discretion is subject to the test in s
107 being satisfied. That test 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.”
[24] It is only when the s 107 test is met that the Court has a discretionary power to discharge under s 106. However, when the test is satisfied this usually results in a discharge.
[25] An appeal against a refusal to discharge is by way of rehearing. The Court hearing the appeal must make a new assessment in accordance with its own opinion.1
The Court of Appeal in R v Hughes concluded that as the s 107 test was not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion.2 An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.
[26] The approach to be followed in applying the s 107 test is set out in the well- known Court of Appeal authority of Z v R where Arnold J held:3
“...[w]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge...”
[27] What this approach requires is that the court must first determine the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offence and also to those factors which apply to the offender. The Court should then determine the direct and indirect consequences of conviction and
determine if they are out of all proportion with the offending.
1 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].
2 At [11].
3 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]
Appellant’s submissions
[28] Mr Munro, for Mrs Coleman, submits that the Judge was wrong to find that the consequences of the offending were not out of all proportion to the offending itself. In particular, he submits that the Judge erred in the following ways:
(a) he sentenced on incorrect facts;
(b)he failed to consider the views of the victims of the offending, in particular Mrs Coleman’s daughter, who made an affidavit in support of her mother’s appeal;
(c) he failed to take into account Mrs Coleman’s own difficult past; and
(d)he wrongly concluded the consequences of the offending were only general and speculative.
[29] On this appeal Mr Munro has provided evidence in the form of an opinion from a legal expert with qualifications in law from both New Zealand and United States law schools. That opinion concludes Mrs Coleman faces a real and appreciable risk of permanently losing the right to travel to the United States under the Visa Waiver Programme operating between this country and the United States as well as ineligibility for a visa of any sort, immigrant or non-immigrant, to the United States until the year 2030. This material was not before the sentencing Judge. Furthermore, on the question of travel, Mr Munro submits that this Court can take judicial notice of travel restrictions and refers me to authorities which he submits are
supportive of that proposition.4
[30] Mr Munro also submits that Mrs Coleman, who is presently working in her former husband’s business, has no particular vocational skills. He submits that it is thus difficult to obtain any explicit evidence on the effects a conviction would have on Mrs Coleman’s future job prospects. He noted that having regard to the nature of
the offences, even if the offending was not particularly serious, the emotive response
4 Han v Police [2012] NZHC 791; R v Hemard HC Christchurch T30/03, 11 April 2003; Dickens v
R [2012] NZCA 265; Ross v Police [2012] NZHC 2269.
from a prospective employer would be highly negative. In this context he relies upon Nash v Police5 where Mallon J accepted the proposition that there are general consequences which flow from a conviction including employment where the convicted person may be disadvantaged when competing against one who does not have a conviction even where the record shows the conviction was for a minor matter.
Decision
[31] I now turn to consider the factors listed in the s 107 test in the Sentencing Act as set out in Z v R.6
The gravity of the offence
[32] It is correct that none of the offences on which Mrs Coleman was convicted attracts a term of imprisonment. They are fine-only offences and thus are relatively minor in nature.
[33] It is also correct that the Judge referred to offending which was not the subject of any charge. However, reading the sentencing reasons as a whole I am satisfied that in describing the alcohol-related charges the Judge correctly described their nature. His erroneous inclusion of the facts of the dismissed charge were used by him as an illustration of the offending rather than as an incident of an aggravating fact. In any event, given the Court is required to consider the test under s 107 afresh, I do not take this reference into account.
[34] Mrs Coleman’s offending is highly unusual and is difficult to categorise. I do, however, agree with the submission of Ms Hamill, for the Crown, that the offending can nonetheless be described as moderately serious for its type. The Judge regarded the alcohol offences as more serious. He came to that conclusion after taking into account the number of months over which the offending took place and the number of occasions Mrs Coleman offended. He pointed to the purpose of the
Sale and Supply of Alcohol Act 2012 noting that the offence provision was plainly
5 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.
6 Z v R, above n 3.
designed to prevent exactly what occurred in the present case. He pointed to the responsibility of a parent to ensure that young people were given guidance in relation to alcohol consumption and that even when an adult may be under pressure to supply alcohol it is their responsibility to resist.
[35] In relation to the sexually explicit images his Honour expressed the view that he regarded this offending as less serious and accepted Mrs Coleman’s explanation that her motive was “purely educative”. With respect I am unable to agree with that assessment. While this finding was open to the Judge in relation to the images depicting infected genitalia, the same does not apply to the pornographic image with a video link or the other distorted image of a woman’s face.
[36] I also note the Judge’s observation that it was mitigating the images were restricted to those over 16 years of age. However, as is recorded in the summary of facts, the other two images have been classified as restricted to those over the age of
18 years. It follows the distribution of those images elevates the seriousness of that offending.
[37] In all the circumstances the gravity of the offending is properly described as moderately serious.
Circumstances of the offender
[38] Mrs Coleman’s personal circumstances were covered in two reports which were before the sentencing Judge.7 The Judge made explicit reference to the second report which referenced the first by noting the various factors which Dr Blackwell believed led to Mrs Coleman “inappropriately [trying] to be a friend to her children and their friends”. The second report referred to the progress which Mrs Coleman had made but noted her long history of unassertive behaviour and emotional immaturity resulted in permissive parenting practices which may require continued therapy and monitoring. The report concluded it was most unlikely Mrs Coleman would display poor decision-making again.
[39] Mr Munro is correct that the Judge did not make explicit reference to the extensive psycho-social stressors present in Mrs Coleman’s life. These were described in Dr Blackwell’s first report. Dr Blackwell made the observation that, amongst other issues, aspects of these stressors lie at the core of the offending.
[40] However, the report does not go so far as to state these features were causative of the offending. Furthermore, a number of the other factors listed do not appear to have been linked to Mrs Coleman’s past history.
[41] In any event, the Judge referred extensively to the contents of Dr Blackwell’s reports both in terms of the factors which influenced the offending as well as her longer term prognosis.
[42] I am not satisfied that the Judge failed to give sufficient weight to this factor.
[43] Another matter urged on me by Mr Munro was the failure of the Judge to take into account the victims’ views. The affidavits filed by Mrs Coleman’s daughters describe a deeply loved and respected mother. The older daughter who, with her boyfriend, was sent the images and thus qualifies as a victim under the
Victims’ Rights Act 2002,8 plainly does not regard herself as a victim. She
complains that she has had no voice in the whole investigation and prosecution process despite it largely involving her. She described the experience as very frustrating. She also describes herself as being furious when she found out what the charges against her mother were and that everything was “blown out of proportion”. She says she could not understand why her mother was charged for sending the images because she was doing so to educate her boyfriend and herself on sexually transmitted diseases.
[44] Mr Munro submits that although this material was before the Judge it is evident that he did not take it into account or, if he did, it is not apparent in his decision.
[45] The views of both daughters, particularly the elder, must be relevant but they are not determinative.9 However, again, these are issues which I must weigh myself in carrying out the balancing act required by s 106.
Direct and indirect consequences of the conviction
[46] Mr Munro submits there are two primary factors which the Court should have given greater weight to. These are:
(a) Mrs Coleman’s ability to travel overseas; and
(b) her prospects of securing employment. [47] I shall deal with each of these in turn.
(a) Travel overseas
[48] Mr Munro submits that Mrs Coleman’s plans to travel to the United States in October this year to accompany her younger daughter, who is in a dance troupe, will be put at risk by her convictions. It was for this reason that the legal opinion was commissioned. As noted earlier this was not before the sentencing Judge.
[49] While it is questionable whether this evidence meets the test necessary for its admission on appeal10 I am of the view the legal opinion does not add materially to what was before the Judge or what I am required to consider on this appeal. The opinion concludes with the following words:
“Ms Coleman faces very serious convictions for charges of distribution of restricted obscene/objectionable materials to a minor and supply of alcohol to a minor. It is our legal opinion that under the United States laws these convictions would be for crimes involving moral turpitude. Pursuant to the US Immigration and Nationality Act, a non-immigrant alien who was guilty of a crime of moral turpitude is ineligible for admission to the United States.”
9 R v Clotworthy (1998) 15 CRNZ 651 (CA), at 659; R v Roche [1990] 2 CRAppR(S) 105, at 109 per Lord Bingham.
10 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; R v Bain [2004] 1 NZLR 638 (CA) at
[23]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
[50] The description of the offences by the authors of this report as “very serious convictions” must necessarily colour the weight I can given to the conclusions. These are not very serious convictions. The highest the sentencing Judge placed the offending was to describe the breaches (in relation to the supply of alcohol) as “relatively serious”. And even that comment must be considered in the context of a fine-only offence. Even accepting the opinion’s conclusion at its face the authors place the risk of being denied travel to the United States at its highest as being a “real and appreciable” one.
[51] Furthermore, the question of travel to the United States must be placed in the context of Mrs Coleman’s intended travel. As I understood Mr Munro’s submission and as is apparent from Mrs Coleman’s affidavit, the intended travel relates to a proposed tour to San Diego in August this year to accompany her youngest daughter. The consequence of being unable to join her daughter in these circumstances makes this case readily distinguishable from those involving family reunification or further
education.11
(b) Employment
[52] Mr Munro is correct when he submits that in circumstances such as the present it is difficult to present specific or cogent evidence that particular convictions will operate to prevent an offender from securing future employment. I also accept his submission that in some cases it will not be necessary to place before the Court such evidence.
[53] Mrs Coleman is presently employed in her former husband’s business. In her affidavit she states she wants to move on, find a job and have a fresh start but is concerned as to what the effect these convictions may have upon that aspiration.
[54] The Judge described the concerns around Mrs Coleman’s employment prospects as speculative and although this expression is criticised by Mr Munro, in my view it is an accurate reflection of the true position. The Judge made express
reference to the concerns raised by Mrs Coleman but observed, correctly in my view,
11 Rodrigo v R [2014] NZCA 68; Han v Police [2012] NZHC 791.
that the general prejudice she may suffer is simply the consequence of obtaining the convictions. Furthermore, he expressly noted that the charges were fine only and must, as a result, significantly mitigate any adverse effect an employer might take from the fact of a conviction if it became known.
[55] Again, I am not satisfied that any difficulties Mrs Coleman may encounter in securing alternative employment takes this case beyond the ordinary or usual such that the direct and indirect consequences of conviction are out of all proportion to the gravity of the offence.
[56] Mr Munro submits that even if the limitations on travel and the complications and difficulties of securing future employment do not individually satisfy the statutory test I should, nevertheless, consider the cumulative effect.
[57] Even on a cumulative basis I am not satisfied that the statutory test of disproportionality is met in the present case.
Result
[58] This appeal is dismissed.
Moore J
Solicitors:
Mr Munro, Auckland
Crown Law, Wellington
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