Dewdney v Police
[2020] NZHC 954
•11 May 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-000013
[2020] NZHC 954
BETWEEN MATTHEW JOSEPH DEWDNEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 April and 1 May 2020 Appearances:
S Taylor for Appellant
A S Alcock for Respondent
Judgment:
11 May 2020
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 11 May 2020 at 3.30 pm.
Registrar/Deputy Registrar Date……………
DEWDNEY v NEW ZEALAND POLICE [2020] NZHC 954 [11 May 2020]
[1] Mr Dewdney pleaded guilty in the District Court to charges of assaulting and threatening to kill his mother, intentional damage and dangerous driving. On 23 January 2020, Judge P R Connell declined an application by Mr Dewdney to be discharged without conviction under s 106 of the Sentencing Act 2002 (the Act).1 On the same date the Judge sentenced Mr Dewdney to 12 months judicially monitored intensive supervision.2 On the charge of dangerous driving the Judge convicted and discharged Mr Dewdney but disqualified him from driving for six months.
[2] Mr Dewdney appeals against both conviction and sentence. First, he contends the Judge erred in refusing to grant him a discharge without conviction under s 106 of the Act. In the alternative, he contends the Judge was wrong to impose a sentence of intensive supervision. He says the Judge ought to have imposed a sentence of supervision rather than intensive supervision.
The charges
[3] All of the charges other than that of dangerous driving relate to an incident that occurred on 27 July 2019 at the address where Mr Dewdney was living with his mother. Mr Dewdney dropped his cellphone as he was getting out of a vehicle after arriving home with his father. This caused the screen of the cellphone to break. Mr Dewdney became angry. He stormed inside the address and began demanding that his mother buy him a new cellphone. Mr Dewdney continued to harangue his mother for the next 45 minutes. At one stage during this episode he held a butter knife in his hand and threatened to stab his mother if she did not buy him a new cellphone. Mr Dewdney also picked his mother’s cellphone up and smashed it by throwing it onto the floor.
[4] Mr Dewdney’s mother eventually went outside the house to call the police. Mr Dewdney followed her and wrapped both of his arms around her. He then picked her up and dropped her so that she fell onto her side. This caused his mother to suffer a grazed knee.
1 New Zealand Police v Dewdney [2020] NZDC 1133.
2 New Zealand Police v Dewdney [2020] NZDC 5896.
[5] Mr Dewdney then left the address but returned a short time later, still in an aggressive mood. When he entered the address he punched and kicked the walls of the hallway, causing four holes to be smashed in the walls as a result.
[6] The charge of dangerous driving was laid as a result of an incident that occurred on the evening of 21 December 2019 whilst Mr Dewdney was on bail on the charges arising out of the earlier incident. On that evening Mr Dewdney was driving a motor vehicle in Hamilton. He was the holder of a restricted driver’s licence and breached the terms of this by having two unlicensed drivers in the vehicle. A police patrol vehicle observed Mr Dewdney accelerate heavily away from an intersection in an area with a posted speed limit of 80 kilometres per hour. Mr Dewdney’s vehicle was then detected travelling at a speed of 132 kilometres per hour. The police vehicle activated its flashing lights and siren to direct Mr Dewdney to pull over to the side of the road. When asked for an explanation he said he was in a hurry to get the passengers of the vehicle home.
Relevant principles
[7] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:
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.
…
[8] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This 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.
[9] A court considering an application for discharge under s 106 must consider three issues.3 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.4 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.5 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
[10] An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.6
[11] Mr Taylor submits on Mr Dewdney’s behalf that a discharge without conviction ought to have been entered on all charges. I do not consider this argument has any substance on the charge of dangerous driving. Those who deal with Mr Dewdney in the future will readily appreciate that it relates to a single incident of bad driving when he was 18 years of age. It attracted no penalty other than six months disqualification from driving. I do not consider a conviction on this charge will have any practical consequences for Mr Dewdney. It follows that he has no basis on which he can realistically contend the Judge ought to have discharged him without conviction on it. That is particularly so given the fact that the charge was laid because of an incident that occurred whilst Mr Dewdney was on bail on the remaining charges. The appeal therefore has no merit so far as the charge of dangerous driving is concerned.
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].
4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
5 DC (CA47/2013) v R, above n 4, at [43].
6 Edwards v R [2015] NZCA 583 at [6].
The gravity of the offending
[12] Several features obviously increase the gravity of the offending that occurred on 27 July 2019. These include the fact that it comprised a prolonged episode involving actual and threatened violence against a vulnerable victim in her own home. The fact that the victim was Mr Dewdney’s mother increases the gravity of the offending because a mother is entitled to be protected by her son rather than threatened and assaulted by him. The fact that Mr Dewdney threatened his mother with a weapon in the form of a butter knife is also an aggravating factor.
[13] The Judge considered, and Mr Dewdney’s counsel acknowledged, that the gravity of the offending itself could properly be described as moderate. From that initial assessment, however, several mitigating factors need to be taken into account.
[14] First, the charges were laid as a result of a single incident rather than a continuing course of conduct. The police had been called to Mr Dewdney’s address on several earlier occasions where he had reported to be in an aggressive frame of mind but none of these incidents resulted in Mr Dewdney being charged with an offence.
[15] Fortunately, too, Mr Dewdney’s mother did not receive any lasting physical injuries as a result of her son’s actions. In addition, Mr Dewdney entered his guilty pleas at an early stage and has now paid his mother in full for the damage he caused to her property.
[16] Mr Dewdney explains that the offending arises out of the fact that has suffers from long standing depression and anxiety issues. He was not on medication at the time of the offending but is now taking medication to deal with these issues. He is also attending counselling on a regular basis to ensure he comes to terms with the causes of the present offending.
[17] Importantly, too, Mr Dewdney’s mother and other members of his family fully support Mr Dewdney’s application for discharge and his endeavours to rehabilitate himself. He has attended a restorative justice conference with his mother and this produced a positive outcome for both. At the time of the offending Mr Dewdney was
living in a caravan at his employer’s premises but he has now moved back to his mother’s address. There has been no repetition of the type of conduct that led to the present charges. Mr Dewdney’s employer has likewise provided his support for the present application.
[18] Finally, Mr Dewdney has no previous convictions and the offending occurred shortly after he turned 18 years of age. Youth is a factor that can be taken into account in the present context.7 He has also demonstrated remorse and insight into his offending.
[19] I consider these factors reduce the gravity of Mr Dewdney’s offending significantly. When they are taken into account I consider the overall gravity of the offending is low.
The consequences of a conviction
[20] At present Mr Dewdney is working for a business that manufactures caravans. His current employer is obviously fully aware of the present offending and has maintained his support for Mr Dewdney throughout the court process. His current occupation is therefore not in jeopardy.
[21] As the Judge acknowledged, however, Mr Dewdney seeks to advance his career by gaining a qualification as an electrician. Before he can be registered as an electrician he will be required to satisfy the Electrical Workers Registration Board (the Board) that he is a fit and proper person to be registered as an electrician. The reason for this is obvious. Electricians are permitted to enter clients’ homes and premises, and to work there with no or limited supervision. This means they must be persons who can be trusted not to abuse this ability.
[22] The Board has published the procedure and criteria it will apply in determining whether a person is a fit and proper person to be registered as an electrician on its website. This includes the following information:
3.Rules
7 Prasad v R [2018] NZCA 537 at [28].
3.1All persons who apply for registration or for a provisional licence will be assessed as to whether they meet the fit and proper person criteria as part of their registration application.
…
3.2In determining if a person is fit and proper the Board will take the following factors into considerations:
…
(f)ever been convicted of a criminal offence punishable by more than six months imprisonment in the last ten years in New Zealand or any other jurisdiction;
(g)any criminal charges punishable by more than six months imprisonment pending in New Zealand or any other jurisdiction; or
(h)done any other thing which may impact on their being a fit and proper person.
3.4 Applicants must declare, at the time of their application for registration or licensing, whether any of the above factors apply to them and or whether there are any other matters which the Board ought to be aware of as regards their character.
…
3.6An applicant for registration or for a provisional licence who have any criminal convictions must include a current New Zealand or overseas criminal record.
3.7The Board may, as part of its assessment of whether any applicant for registration or a provisional licence or any electrical worker seeking a licence meets the fit and proper person requirements, obtain a New Zealand Police Vetting Service criminal history check. The Board may take any refusal to consent of the Board obtaining a criminal record into account in determining whether or not an applicant is a fit and proper person.
…
3.9If there is evidence of one or more of the matters in 3.2 above, then the applicant may provide the Board with further information as set out below in rules 3.10 and 3.11. If further such information is required, the Board will consider it in determining whether the applicant is a fit and proper person. If further such information is not provided, the applicant will be deemed to not be a fit and proper person.
3.10The Board may also take factors other than those contained in 3.2 and
3.7 above into consideration in determining if a person is fit and proper.
3.11Any applicant may submit to the Board in writing that they are, notwithstanding evidence of one or more of the matters in 3.2 above or such other evidence as the Board considers relevant, a fit and proper person.
3.12Any such application must set out the applicant’s reasons. The applicant will be given an opportunity to be heard by the Board in support of their submission.
…
3.14The Board will apply and adhere to the principles of natural justice in coming to its decision as to whether a person meets the fit and proper person requirements of the Act. The Board may also take any of the following into consideration:
(a)how serious the matter is or was;
(b)what health and/or safety concerns it may raise;
(c)how long ago it occurred;
(d)any consequences for the applicant or any other person;
(e)whether it was a one off incident;
(f)how relevant it is to the applicant carrying out or supervising prescribed electrical work;
(g)the implications of the matter; i.e. what does it show about the applicant;
(h)the applicant’s attitude to the matter;
(i)how a member of the public who engaged the applicant to carry out prescribed electrical work would view the matter;
(j)anything else that the Board may consider relevant.
[23] On its website the Board cites Domb v Real Estate Licensing Authority as authority for its ability to include a “vetting” provision in the form of r 3.7 in its procedure for determining whether an applicant is a fit and proper person to be registered as an electrician.8 That case was subsequently overruled by the Court of Appeal, which held that a body such as the Board can only impose such a requirement where the legislation establishing the body provides for that to be done.9 The Act provides the Board with “all such powers as are reasonably necessary or expedient to
8 Domb v Real Estate Agents Authority [2015] NZHC 3157, [2016] NZAR 47.
9 Real Estate Agents Authority v Domb [2017] NZCA 199 at [17].
enable the Board to carry out its functions”.10 On my reading of that legislation it does not, however, include a provision expressly authorising the Board to utilise the police vetting procedure. An issue may therefore arise as to whether the Board can lawfully require Mr Dewdney to be subject to that process.
[24] Even if the requirement is not valid Mr Dewdney is still required under r 3.4 to declare whether he has done anything that may impact on his being a fit and proper person and whether there are any other matters of which the Board should be aware as regards his character. It therefore seems inevitable that the Board will learn of the circumstances giving rise to the present charges whether or not Mr Dewdney is discharged without conviction.
[25] In Parker v Police Williams J observed that the existence of a vetting provision undermined the argument in favour of discharge.11 Justice Williams based this observation in part on his view that a discharge in such circumstances will “simply provide a signal to the Board that the sentencing Judge thought the incident should not affect registration”.12 He considered that, for a body such as the Board, “the view of a judicial non-expert is probably of little probative value”.13 He also pointed out that it is not the role of the courts to tell such bodies how they should exercise their decision-making power because that would be to usurp their mandate.14
[26] Bodies such as the Board have a duty, however, to take into account all relevant information in deciding whether an applicant is a fit and proper person to be registered for a trade or profession. As always, context is everything. In some circumstances I consider a body such as the Board may derive considerable assistance from the view a sentencing Judge takes of the overall gravity of criminal conduct and its probable consequences.
[27] In the present case the Board will obviously be concerned to know Mr Dewdney has convictions for offending involving violence and damage to
10 Section 148(2).
11 Parker v Police [2016] NZHC 2524 at [29].
12 At [26].
13 At [26].
14 At [27].
property. It may call into question his suitability to enter clients’ properties to carry out electrical work on an unsupervised basis. The extent to which this is so will ultimately be a matter for the Board. I consider, however, that the rules set out above ensure Mr Dewdney will have the opportunity to provide the Board with all relevant material relating to the convictions. In particular, he will be entitled to place before the Board the material he has placed before the Court in relation to the application for discharge. The Board will also have the benefit of this Court’s assessment as to the overall gravity of his offending. I therefore do not consider the mere existence of the convictions is likely to produce significant consequences for Mr Dewdney in terms of his bid to be registered as an electrician.
[28] Mr Taylor pointed out that, even putting aside Mr Dewdney’s desire to be registered as an electrician, he is still a young man and the existence of the present convictions is likely to be a major hindrance to any other career he may wish to pursue in the future. He referred me to Walker v Police, in which this Court observed that the potentially greater consequences of a conviction for a young offender who does not have a “foothold in a career” need to be recognised along with the risk that a conviction may be permanently damaging.15
[29] I acknowledge the force of these observations but I do not place Mr Dewdney in the category of a person who does not have a foothold in a career. He has been employed by his current employer for some time now, and has clearly won his employer’s trust, confidence and support. That will stand him in good stead whatever path his career may take in the future.
[30] I would therefore assess the direct and indirect consequences of the convictions for Mr Dewdney as being low.
Are the consequences of the convictions out of all proportion to the gravity of the offending?
[31] Mr Taylor relied heavily in this context on the recent judgment of the Court of Appeal in Prasad v R.16 In that case the Court of Appeal granted a discharge without
15 Walker v police [2016] NZHC1450 at [22]
16 Prasad v R [2018] NZCA 537.
conviction to an offender who, at the age of 19 years, had engaged in two separate acts of violence against his partner. As in the present case, the appellant had entered early guilty pleas. The parties had also reconciled their differences and the victim supported the application for discharge. In addition, the appellant had expressed remorse and insight into his offending. He had also undertaken significant rehabilitative steps. These included the payment of reparation to the victim and attendance at a restorative justice conference that produced a positive outcome. The Court of Appeal assessed the overall gravity of the offending as being low to moderate.
[32] The convictions had, however, contributed to the appellant in Prasad becoming depressed to the point where he had attempted to commit suicide. The convictions had also thwarted a promising academic career, and had jeopardised the appellant’s future career prospects. Not surprisingly, the Court of Appeal categorised the consequences of the convictions as being serious. It followed that the consequences were out of all proportion to the gravity of the offending. I view the present case as different to Prasad because the consequences of the convictions for Mr Dewdney are much less serious than those for the appellant in Prasad.
[33] I have assessed the overall gravity of the offending as being low and the consequences of the convictions as likewise being low. It follows that the consequences of the convictions are not out of all proportion to the gravity of the offending. Mr Dewdney has therefore failed to cross the statutory threshold required before a discharge without conviction may be granted. The appeal against conviction must accordingly be dismissed.
The appeal against sentence
[34] The Judge’s decision to impose a sentence of judicially monitored intensive supervision was clearly influenced by what he viewed to be a pattern of aberrant behaviour on Mr Dewdney’s part. He saw the charge of dangerous driving as being symptomatic of this.
[35] There is a considerable amount of material before the Court to suggest Mr Dewdney has had significant issues with anger management for some time. These are best demonstrated by the rapid and inexplicable manner in which the events giving
rise to the present charges developed. I agree that these issues warranted Mr Dewdney being sentenced to supervision but I do not share the Judge’s concern that they required the more invasive restrictions of judicially monitored intensive supervision. The rehabilitative steps Mr Dewdney has already undertaken demonstrate he now has a significant degree of insight into the causes of the present offending. Furthermore, he has been able to hold down a steady job for a considerable period. His relationship with his mother and other members of his family is also good. Provided Mr Dewdney keeps taking his medication I consider there is little risk he will offend again in a violent way in the future.
[36] I therefore consider the less restrictive sentence of supervision was sufficient to provide for Mr Dewdney’s rehabilitation and reintegration into the community.
Result
[37] The appeal against conviction is dismissed. The appeal against the sentence of 12 months judicially monitored intensive supervision is allowed. That sentence is quashed. In its place I impose a sentence of 12 months supervision.
Lang J
Solicitors:
Crown Solicitor, Hamilton
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