D v Police HC Whangarei CRI 2008-488-61

[2009] NZHC 1927

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-488-61

D

Appellant

v

THE POLICE

Respondent

Hearing:         17 July 2009

Appearances: A Fairley for appellant

K Thomas for respondent

Judgment:      24 July 2009

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2 pm on Friday 24 July 2009

Solicitors:

Thomson Wilson Whangarei
Crown Solicitor Whangarei

D V  POLICE HC WHA CRI 2008-488-61  24 July 2009

[1]      At the conclusion of a defended hearing on 3 November 2008 in the District Court at Whangarei, Judge de Ridder found Mr D   guilty of a breach of a protection order made in favour of his wife, in that without reasonable excuse he entered onto land occupied by his wife without her consent.   Mr D   was convicted and fined $400 and ordered to pay Court costs of $130.  He now appeals against conviction and sentence.

Background

[2]      The protection order in question was obtained by the appellant’s wife, Ms S, without notice to the appellant on 12 June 2008.  It followed the sudden departure of Ms S to Christchurch, again without notice to the appellant.  She took with her the daughter of the relationship, aged about three years.

[3]      Following the grant of a temporary protection order, there were negotiations which resulted in Ms S’s return to Whangarei with the parties’ daughter.  She took an apartment in Lupton Avenue, Kensington.

[4]      Before Judge de Ridder, Ms S said that on 22 July 2008 at around 4.30 pm, she was driving south on Lupton Avenue with her daughter in the car.  She says that she  saw  a  red  Nissan  Torana  (the  former  family  car),  being  driven  down  the driveway which served a block of flats, including her own.  The Nissan was being driven towards the roadway.  She immediately formed the view it was the appellant’s car.   The vehicle exited from the driveway and turned left onto Lupton Avenue, travelling in the opposite direction from the vehicle driven by Ms S.  Within a matter of seconds the two cars were level.  Ms S was able to identify the appellant, who she says, looked her in the eye as if to put her on notice that he now knew where she lived.

[5]      Ms S was significantly distressed by what had occurred.   She made a 111 call.  The police were summoned.  The appellant was located.  He accepted that he had been on Lupton Avenue and was driving the car which passed that of Ms S, but

he denied that the car had been on the driveway serving the block of flats. Nevertheless, he was charged with breach of the protection order, a charge upheld by Judge de Ridder, and now the subject of this appeal.

The guilty finding

[6]      Mr Fairley accepts that the police adduced evidence upon which it was open to the learned District Court Judge to convict.   He also accepts that the decision ultimately turned upon the Judge’s view of the witnesses, since the appellant, although accepting that he had been driving the red Nissan Torana motor car on Lupton  Avenue,  completely denied  having  driven  onto  the  driveway,  where  on Ms S’s account, she had first seen it.

[7]      The prosecution case was that, in driving his vehicle onto the driveway, the appellant was in breach of the temporary protection order.   In order to prove the prosecution case, the police had to establish beyond reasonable doubt that Ms S’s account was correct.

[8]      Mr Fairley’s challenge to the decision is based upon the contention that the Judge gave insufficient reasons for his decision, and in particular, that he failed to indicate why he preferred Ms S’s evidence to that of the appellant.   Moreover, Mr Fairley  argues,  the  reasons  given  by  the  Judge  for  doubting  the  appellant’s evidence are inadequate (or at least inadequately expressed), and might be read as suggesting that there was an evidential onus on the appellant.

[9]      The Judge was, of course, not obliged to give detailed reasons, although it is good judicial practice to do so:  R v Awatere [1982] 1 NZLR 644; R v MacPherson [1982] 1 NZLR 650. A failure to give reasons does not automatically vitiate a decision. Where credibility is in issue, there is no absolute requirement for detailed reasons in respect of credibility findings. Where the factual issues are relatively straightforward, it will be sufficient for a Judge to indicate that one witness’s evidence is preferred to that of another.

[10]     In the present case, where the facts fell within the narrowest of compasses, the reasons given by the Judge were amply sufficient in scope.   They ran to 17 paragraphs covering some four pages.

[11]   In essence, Mr Fairley’s complaint is that although there is an implicit preference in these reasons for the complainant’s  evidence, the reasons for that preference ought to have been spelt out, along with the Judge’s reasons for rejecting the contrary evidence for the appellant.

[12]     I am unable to accept that submission.  Judges are not required to articulate their decisions according to a formula.  It will be sufficient if the decision reached accords with the Judge’s factual findings.  In this case there were explicit findings of fact that more than adequately underpinned the Judge’s finding of guilt.  The Judge recorded  Ms  S’s  evidence  that  she  saw  the  Nissan  Torana  driving  down  her driveway;   thought it was her ex-husband’s car, saw the vehicle exit from her driveway and turn left onto Lupton Avenue, and shortly thereafter, watched it draw level with her own vehicle so she was able to identify the appellant as the driver. The Judge later found in respect of that evidence that “ … there is clear evidence that she  saw  the  defendant  leave  her  property”,  so  he  accepted  the  complainant’s evidence on the point, which was the pivotal issue in the case.  His finding is hardly surprising.  The complainant kept the appellant’s vehicle in continuous sight from the time she first saw it on her driveway, to the point at which it drew level with her own vehicle, when she was able to identify the driver.  So, provided he accepted the complainant as a credible witness, it was then only a short step to a finding of guilty.

[13]     Ms S was subjected to extensive cross-examination, during the course of which it was suggested to her that she had a motive to lie because she might believe herself better placed to obtain a final protection order if the appellant was convicted. The Judge found that the complainant was not influenced by the pending protection order proceedings because she was genuinely uncertain about whether the criminal proceedings would be relevant in the later civil case.  The Judge also explicitly found there were no other matters relating to the relationship between the complainant and the appellant which were likely to lead her to lie about what she saw.

[14]     The Judge also analysed the appellant’s evidence in some detail.  He briefly considered evidence from the appellant about the timing of his prior supermarket shopping activities.  Certain supermarket receipts were produced in an endeavour to demonstrate  that  the  appellant  could  not  both  have  undertaken  supermarket purchases at the time printed on his receipt and driven his car onto the complainant’s driveway  within  a  few  minutes  thereafter.    However,  as  the  Judge  found,  the appellant  admittedly had  sufficient  time to  drive his  car  along  Lupton  Avenue, following his visit to the supermarket.  That being so, there was no reason why he would not have had sufficient time also to drive onto the driveway.

[15]     The other plank of the appellant’s defence rested upon the proposition that there was simply no need for him to place himself in jeopardy by breaching the temporary protection order.   He had been a member of the regular Army and had served in a security related position in Iraq.  He was therefore trained in surveillance activities and in covert operations.   There were other lawful means by which he could find out where the complainant and their daughter were living.

[16]     The appellant asked the Court to take that consideration into account.  The Judge declined to do so.  He said: “I simply make the observation that there are all sorts of reasons why people may do things that do not ordinarily make sense, or would not necessarily appear logical”.   The Judge considered that to accept the appellant’s contentions would be to engage in speculation or guesswork.

[17]     In a case where the factual issues were relatively simple, the Judge engaged in a thorough analysis of the competing contentions of the principal witnesses, and reached his conclusion on a logical, principled basis.  He was entitled to prefer the complainant’s evidence to that of the appellant, which he plainly did, although he stopped short of rejecting the appellant’s evidence in forthright language.   It is common for Judges in summary cases to refrain from doing that.

[18]     Mr Fairley’s final point was that the Judge appeared to have reversed the onus of proof.  At the conclusion of his reasons for verdict he said:

None of the evidence of the defendant, in regards to the crucial point of whether he exited from the complainant’s property, is such to give me any

reasonable doubt to doubt the evidence of the complainant and I find that the prosecution has proved the charge to the necessary degree.

[19]     Mr Fairley contended that the Judge appears to have reversed the onus of proof in that it might, on one reading, be thought to suggest that it was for the appellant to adduce evidence for the purpose of raising a reasonable doubt.  That is plainly not the proper reading of what the Judge said.  On two earlier occasions in his decision Judge de Ridder reminded himself of the burden of proof.   In this conclusory paragraph he did no more than indicate that, after hearing the appellant’s evidence, he had found the prosecution case to have been proved beyond reasonable doubt on the basis of the complainant’s evidence, which he accepted.

[20]     In a case turning upon witness credibility, the decision of the trial Judge is entitled to the greatest respect.  There was plainly sufficient evidence upon which the Judge was entitled to find the case proved.   The appeal against the Judge’s guilty finding must accordingly fail.

Discharge without conviction

[21]     At the conclusion of his oral judgment, Judge de Ridder moved immediately to the sentencing process.  He did not consider it necessary to require a pre-sentence report and thought that the case simply called for the imposition of a fine.   Mr Fairley now contends that the  appellant  ought  to  have  been  discharged  without conviction.   That contention was not advanced before Judge de Ridder, but Mr Thomas accepts that this Court may properly consider it on appeal.

[22]     The jurisdiction of the Court to discharge without conviction is conferred by ss 106 and 107 of the Sentencing Act 2002 which relevantly provide:

106     Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless  by  any  enactment  applicable  to  the  offence  the  court  is required to impose a minimum sentence.

(2)      A discharge under this section is deemed to be an acquittal. (3)     A court discharging an offender under this section may—

(a)       make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)       loss of, or damage to, property; or

(ii)      emotional harm; or

(iii)     loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)make  any  order  that  the  court  is  required  to  make  on conviction.

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.

[23]     The application of these sections was recently discussed by the Court of Appeal in R v Hughes 2008 [NZCA] 546.  There, the Court noted that despite the heading to s 107, “Guidance for discharge without conviction”, the provisions of the section are mandatory.  In consequence, no Court may exercise its discretion under s 106 to discharge without conviction unless it is satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.  As was said in Hughes (at [8]):

…  Section  107  thus  provides  a  gateway  through  which  any  discharge without conviction must pass.  It stipulates a pre-condition to exercise of the discretion under s 106.

[24]  In Hughes, the Court of Appeal confirmed that the criminal law disproportionality test discussed in such cases as Fisheries Inspector v Turner [1978]

2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA) had not been departed from in s 107. The Court said in Hughes (at [41]):

In summary, the parameters within which the disproportionality principle operates   have   not   been   changed   by   s   107.      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.

[25]     The appellant does not carry an onus to establish that the disproportionality test has been met.   Rather, in terms of s 107, the Court may discharge without conviction “… if satisfied” that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.   As explained in R v Leitch [1998] 1 NZLR 420 at 428, the need to be “satisfied” simply involves the exercise of judgment by the Court; it is inapt to import notions of burden and standard of proof.

[26]     In Hughes, the Court of Appeal confirmed the continuing applicability of the three-step approach suggested in Turner and in Roberts:

a)       Identification of the gravity of the offending by reference to the facts of the particular case;

b)       Identification of the direct and indirect consequences of a conviction;

c)      Determination of whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.

[27]     I deal first with the offence itself.  Protection orders are of course a vitally important component in the armoury of Family Court Judges, who have jurisdiction in cases of alleged domestic violence.   But breaches of such orders can vary enormously in gravity.  In this case it is common ground that the breach fell at the very bottom of the scale.  In the course of his sentencing remarks the Judge said:

[21]      It is always invidious to talk about matters being low level especially when it comes to charges such as this but, comparing it as I have to with other cases, this clearly is very much at the low end of the scale.  You were not seeking to directly confront the complainant.   There were no threats.

You were simply in a place where you were not permitted to be and, as

Mr Bowden has properly said, for a very short time.

[28]     As a matter of interest, Judge Druce ultimately declined to make a protection order when the application for a final order came before him.  In a detailed reserved judgment dated 25 March 2008, he held that the necessary evidential threshold had not been reached.  Accordingly, he discharged the temporary order upon which the present prosecution was based.   That consideration does not, of course, have any immediate consequence in respect of the appellant’s conviction, but it is of interest that Judge Druce considered, as part of the case for a final protection order, the incidents which gave rise to the appellant’s prosecution.  He noted that the Lupton Avenue driveway served some six apartments, and that there was no suggestion that the respondent’s car was stationary at any time.   He found that the appellant’s presence on the driveway appeared to have been very brief.

[29]     There is no evidence that the appellant’s decision to drive up the driveway was aimed at the complainant.   The case has none of the usual harassment connotations that  normally underlie  protection  order  breaches.    At  the  time  the appellant did not know where the complainant and his daughter lived.  It is a proper inference that he was endeavouring to verify their address and no more.

[30]     The offending was therefore minor, as Judge de Ridder acknowledged.

[31]     I  turn  to  a  consideration  of  the  consequences  of  a  conviction  upon  the appellant.  The appellant does not have a perfect prior record.  He is 41 years of age. When aged about 19 years he was convicted of dangerous driving, and some months later of driving while disqualified.  For the latter offence he was sentenced to three months periodic detention.  Then, in 1990, he was convicted on charges of selling cannabis and possessing cannabis for supply.   Again he was sentenced to periodic detention.  Finally, in 1995, there was a conviction for driving at a dangerous speed, for which he was fined and disqualified.

[32]     Until  this  present  conviction  the  appellant  was  entitled  to  conceal  his previous convictions, pursuant to the provisions of the Criminal Records (Clean Slate) Act 2004.  If the present conviction is maintained he loses his eligibility.

[33]     Section 14 of the Act provides:

14       Effect of clean slate scheme on eligible individual

(1)       If an individual is an eligible individual, he or she is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record.

(2)       An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.

(3)       Nothing in subsection (1) or subsection (2)—

(a)prevents an eligible individual stating that he or she has a criminal  record,  disclosing his  or  her  criminal  record,  or consenting to the disclosure of his or her criminal record; or

(b)authorises an individual to answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record if the question is asked—

(i)under the jurisdiction of the law of a foreign country while an eligible individual is outside New Zealand; or

(ii)      while he or she is in New Zealand but relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).

(4)       Subsections (1) and (2) are subject to the exceptions in section 19.

[34]     Between 2000 and 2007 the appellant was employed in the New Zealand Army, first as a territorial soldier and later as a full time soldier holding the rank of corporal.  The last two years were spent serving in the New Zealand SAS.   More recently  he  has  been  working  as  a  security  consultant  for  a  private  sector organisation, offering protection and security services in countries such as Iraq.  His earlier convictions did not affect his employment prospects in those positions, by reason of the nature of the convictions, the length of time that had elapsed since they were entered, and the fact he had a clean record since 1995.

[35]     Mr  D    says  that  further  prospects  of  employment  in  the  security industry will be significantly diminished if the present conviction is maintained, because private security companies look unfavourably on applicants with criminal histories involving offences such as protection order breaches.

[36]     His employment plans for the future are uncertain.  He says he is considering a career in either business or the legal profession;  either would involve university study.  He has also considered teaching at either a secondary or tertiary level, and there is a possibility that he may apply to join the police.  Mr D   says that he believes that the cumulative effect of the historical convictions and this new conviction would place him at a significant disadvantage, in that options such as the police force, teaching or work in the security industry are likely to be ruled out.  If he is discharged without conviction, then in terms of s 14 of the Criminal Records (Clean Slate) Act he will be able to refrain from disclosing his earlier convictions.

[37]     Mr Thomas is critical of Mr D  ’s evidence about his future plans.  He argues that the Court is entitled to more precise information than has been supplied. However, as Mr Fairley argues, the appellant ought not to be penalised simply because his life is at something of a crossroads by reason of his separation from the complainant, and the fact their relationship property affairs are yet to be resolved.

[38]     I accept that if the conviction stands, the appellant’s employment prospects are likely to be significantly diminished.

[39]     The final consideration is whether, because of the nature and seriousness of the consequences of the offending, the result would be out of all proportion to the gravity of the offence.  In the course of the necessary assessment, all of the facts of the individual case must be considered.  The words “out of all proportion” suggest an extreme situation which speaks for itself:   Police v Roberts [1991] 1 NZLR 205 (CA). There is general judicial acceptance that discharges without conviction will be relatively rare, and that the test is not easy of achievement: see McDowell v Police HC CHCH A133/02 11 March 2003, and Daniels v Police HC WN CRI 2008-485-

19 22 May 2008.

[40]     The  Court  must  not  discharge  an  offender  without  conviction  unless  the Court is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence.   Here, the consequences are somewhat uncertain in that the appellant’s future employment plans are, to a degree,

nebulous.   But the options he identifies include several alternative avenues of employment which may be closed to him if the present conviction stands.

[41]     On the other hand, I am satisfied that the gravity of the offending itself lies at the very lowest point of the spectrum of criminal offending.   A low level of culpability on the part of an offender is a material consideration:  Lee v Police HC AK CRI 2005-404-28 27 July 2005.  The appellant’s previous record is against him, but he has been free of offending for many years, and the earlier offences themselves are not such as to justify the refusal of a discharge without conviction, which I believe it is otherwise appropriate to grant.

[42]     This case perhaps has some similarity to Steele v Police HC ROT CRI 2007-

463-151 11 February 2009,  where the appellant had spent several nights at the complainant’s home with her consent during the currency of a protection order.  She withdrew her consent, but the appellant remained in her house for at least some hours.  In the District Court, the offender was sentenced to nine months supervision. On appeal, Rodney Hansen J upheld a finding that there had been a breach of the protection  order,  but  nevertheless  allowed  the  appeal  against  conviction  and sentence, quashed the sentence of supervision, and discharged the appellant without conviction.  In that case, the Judge regarded the circumstances as highly unusual and characterised the offending as technical in nature.  He was heavily influenced by the fact there had been no deliberate attempt to flout the protection order.

[43]     Similarly, in the present case, I regard the offending as technical.   It bears none of the harassment hallmarks of most protection order breaches.

Result

[44]     I  am  satisfied  that  the  appeal  cannot  succeed  insofar  as  it  concerns  the Judge’s decision to find the appellant guilty of the offence charged.  Nevertheless, I am satisfied that the effect of a conviction on Mr D   is out of proportion to the gravity of the offending.  Accordingly, the appeal against conviction and sentence is allowed.   The conviction and sentence are quashed.   Mr D   is discharged without conviction.

C J Allan J