Ed v The Queen - [2019] NZHC 2857

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT’S SON PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-336

[2019] NZHC 2857

BETWEEN
E D

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 November 2019

Counsel:

A Bloem for appellant

K Guilford for respondent

Judgment:

4 November 2019

ORAL JUDGMENT OF KATZ J

[Appeal against conviction and sentence]

Solicitors:Meredith Connell, Office of the Crown Solicitor, Auckland Bloem & Associates, Auckland

E D v THE QUEEN [2019] NZHC 2857 [4 November 2019]

Introduction

[1] On 6 May 2019, Ms D pleaded guilty to one charge of assaulting a child.1 She applied to be discharged without conviction. On 26 July 2019 Judge C S Blackie refused Ms D’s application in the District Court at North Shore.2 Instead he ordered her to come up for sentence if called upon within 12 months. Ms D now appeals the refusal to grant her a discharge without conviction.

The offending and subsequent events

[2] The victim was Ms D’s nine-year-old son. Ms D and the child’s father are separated. On 29 October 2018 the child was at Ms D’s address. His father had requested an extension of custody, so he could take him on a trip overseas. For whatever reason, this upset Ms D. She became involved in an argument with the child. Ms D grabbed her son by the hair and dragged him into the kitchen. The child was terrified and wet himself. Ms D told him to clean up the urine.

[3] Initially, Ms D denied assaulting her son and stated that he was “put up to it” by his father. She acknowledged that he had wet himself but said this was because he noticed she was upset. She denied telling him to clean up the urine.

[4] Ms D subsequently pleaded guilty, after resolution discussions had taken place and a summary of facts was agreed at the Case Review Hearing. She has no previous convictions. Subsequent to the offending she has voluntarily undertaken 42 hours of community work with Red Cross, and also completed a parenting programme and a 10-week anger management course.

Legal principles – discharge without conviction

[5] The Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3 This entails a three-step enquiry:4

1      Crimes Act 1961, s 194(a): the maximum penalty is two years’ imprisonment.
2      Police v D [2019] NZDC 14476.
3      Sentencing Act 2002, s 107.
4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]-[28].

(a)first, consider all the aggravating and mitigating factors relevant to the offending and the offender to assess the gravity of the offending;

(b)second,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ed v The Queen

Details

AGLC: Ed v The Queen [2019] NZHC 2857
Case: [2019] NZHC 2857
Decision Date: 4 November 2019

CaseChat Overview and Summary

The case of Ed v The Queen concerns an appeal against a conviction and sentence for assault on a child. The appellant, Ms D, had pleaded guilty to the charge of assaulting her nine-year-old son and applied for discharge without conviction. The District Court judge had refused her application, and Ms D appealed to the High Court. The legal issues for the Court to decide included the gravity of the offending, the consequences of a conviction, and whether those consequences would be out of all proportion to the gravity of the offence.

The Court found that while the offending was not severe or extreme, it was moderately serious, given the vulnerability of the child and the breach of trust involved. The Court considered the consequences of a conviction for Ms D, particularly the potential impact on her employment and ability to travel to Australia. The Court accepted that there was a real and appreciable risk that the consequences of a conviction would be very serious in terms of Ms D’s career, given her employer’s recent expansion into the Australian market. The Court concluded that the consequences of a conviction would be out of all proportion to the gravity of the offending.

In light of the above findings, the Court allowed the appeal against conviction and sentence. The conviction for assault on a child was quashed, and Ms D was discharged without conviction on this charge. The Court also made an order suppressing the name of Ms D under the Criminal Procedure Act 2011, on the basis that publication of her name would lead to the identification of her son and would cause him undue hardship. The child's name was already suppressed by statute.

Orders