Edwards v R
[2015] NZCA 583
•30 November 2015 at 3.30 pm
| NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA306/2015 [2015] NZCA 583 |
| BETWEEN | CHAD BRYAN VEILLEUX EDWARDS |
| AND | THE QUEEN |
| Hearing: | 13 October 2015 |
Court: | Miller, Heath and Lang JJ |
Counsel: | G Newell for Appellant |
Judgment: | 30 November 2015 at 3.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe application for leave to adduce fresh evidence is granted.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Mr Edwards was found guilty in the District Court on one count of indecent assault. The trial Judge, Judge Down, refused an application for discharge without conviction.[1]
[1]R v Edwards [2015] NZDC 6663.
On appeal against sentence, Mr Edwards contends that he ought to have been discharged. He says that the Judge overstated the seriousness of his offence and understated the consequences of conviction.
The facts
The facts as recorded by the trial Judge are that Mr Edwards and the complainant had been friends for some years. On the night of the incident he was at her flat visiting her flatmates. He knocked on her bedroom door late at night and asked if she wanted to talk. She told him to come in. After a short time he began telling her that he found her attractive. She made it clear that she was not interested. Specifically, she told him to “fuck off”. He then got on the bed and lay beside her, placing his hand on her breast and saying that he wanted to have sex with her. At that point she insisted that he should leave the room and he did so.
Mr Edwards’ defence at trial was that he misinterpreted her initial rejection, reasonably believing that she consented. He contended that the incident followed a flirtatious discussion. The jury must have rejected that defence.
The jurisdiction
Sections 106 and 107 of the Sentencing Act 2002 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.
…
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.
For purposes of appellate review, this Court treats as evaluative the first step in the inquiry; that is, whether the consequences of conviction sufficiently outweigh the gravity of the offence. The second step, whether to grant a discharge in all the circumstances, is treated as the exercise of discretion.[2] In the District Court Mr Edwards fell at the first step.
Gravity of the offence
[2]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
When considering the gravity of the offence, the sentencing court should consider all the aggravating and mitigating factors relating to the offending and the offender.[3]
[3]Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
We begin with the offence. The Judge treated it as intrinsically serious and characterised this particular case as falling at the lower end of the scale but nonetheless moderately serious. Mr Newell submitted that it was less serious than that.
The offence of indecent assault encompasses a very wide range of conduct. At one extreme it encompasses assaults that are tantamount to sexual violation. At the other, it protects personal autonomy in sexual matters, policing an important social boundary by proscribing non-consensual sexual touching. So courts always take the offence seriously. But it does not fall into a separate category for discharge purposes. A fleeting touch may qualify as an assault in law and in context it may be only just indecent. Each case requires assessment on its own facts. As Mr Newell pointed out, discharges have been given on occasion.[4]
[4]Dickins v R [2012] NZCA 265 and Marshall v Police [2014] NZHC 2681.
So far as this particular case is concerned, Mr Newell emphasised that Mr Edwards and the complainant had been friends for a number of years and they had previously discussed matters of sexuality, the home in which the incident happened was an openly sexual environment, she is a forthright and confident person, and he was in an emotional state at the time because he had just broken up with his girlfriend.
We are prepared to accept these submissions so far as they go. It may be that when he was invited into the complainant’s room Mr Edwards had some reason to think she might be receptive to his advances. But the fact remains that he touched her in a sexual way after she had conveyed in unequivocal language that she did not want him to do so. The jury must have been satisfied that whatever his emotional state he could not reasonably have believed he had her consent. We accept that it was low-level offending of its kind, but it nonetheless falls squarely within the mischief that the offence addresses.
Mr Newell criticised the Judge for taking into account the interests of the complainant when evaluating the gravity of the offence. He submitted that her interests were an irrelevant consideration. We do not agree. The criminal law should vindicate victims and a discharge may detract from that function. The Judge did not place too much weight upon the complainant’s attitude towards Mr Edwards; her victim impact statement claimed that she had suffered considerably from his actions but the Judge considered that some of her personal difficulties had nothing to do with him.
Mr Newell next submitted that the Judge was wrong to discount Mr Edwards’ remorse. The Judge did so because Mr Edwards maintained that his account of what happened that night was correct. We accept Mr Newell’s submission that there is no necessary inconsistency between Mr Edwards maintaining that he had reasonable belief in consent and expressing remorse for the impact of his error on the complainant. But the Judge presided over the trial, where Mr Edwards represented himself, and was best placed to gauge the quality of his remorse. There is something in Mr Carruthers’ point that Mr Edwards is still seeking to justify himself.
Mr Newell emphasised other mitigating factors. Notably, Mr Edwards’ risk of sexual violence and reoffending are low and he has undergone rehabilitation with Community Alcohol and Drugs Services (CADS) on his own initiative. We accept these submissions, as did the Judge. We note in passing that we do not accept that the Judge overlooked a psychological report confirming the low reoffending risk. He did not need to refer to it, because it did not add materially to what the Judge already knew.
Lastly, Mr Newell noted that the Judge attached some weight to Mr Edwards’ need for further rehabilitation to deal with his high level of drinking. He had reported consuming something over 40 standard drinks over a period of three days. Mr Newell submitted that the Judge erred, because there was no causal nexus between alcohol and this offence and Mr Edwards’ reoffending risk is low. But substance abuse and its associated risks are a relevant circumstance of the offender. In his letter of apology to the complainant Mr Edwards acknowledged that there was a connection between his alcohol use and his behaviour toward women generally. The Judge does not appear to have attached too much weight to it.
We are not persuaded that the Judge was wrong to view the offence as falling toward the bottom end of the scale but nonetheless moderately serious.
Consequences of conviction
Mr Newell submitted that the consequences of a conviction for indecent assault are always serious. He cited Brown v R for the proposition that prospective employers are unlikely to take the circumstances of the offence into account.[5] Rather, he submitted, employers will focus on the intrinsic seriousness of the offence, and that being so, the consequences of conviction can be extremely severe depending upon the defendant’s circumstances.
[5]Brown v R [2012] NZCA 197 at [31].
We observe that in Brown the charge was common assault and the Court did not state a rule. We take a different approach on our facts. We do accept that some employers may not be prepared to look beyond the bare fact of a conviction to read what the courts had to say about its circumstances and mitigating factors, but we are not prepared to assume that all or even most will behave in that way, especially where the offender is generally a person of good character, as in this case. If accepted, Mr Newell’s submission would result in discharges being given routinely in indecent assault cases falling at the lower end of the scale of seriousness.
Counsel also relied upon the actual and perceived consequences of a conviction upon Mr Edwards’ ability to travel. He is a game designer whose work may require him to travel to the United States. He also wants to be able to visit his sister, who lives in Canada. Mr Newell submitted that it is likely that he will be unable to enter those countries and that this will deny him employment opportunities and the ability to maintain full contact with his sister.
We granted Mr Newell leave to file an affidavit of Tony Ciniglio of Marker Metro Ltd, which designs and builds games and applications. The firm employs Mr Edwards. Mr Ciniglio says that Mr Edwards is a talented game developer but the conviction has already affected his employment. His work requires international travel because most of the company’s clients are based abroad. Any applicant with travel restrictions would be rejected automatically when applying for a senior role. In June 2015 Mr Edwards was denied a senior position for that very reason. A former employer, Tristan Boyd of Zero One Data Group, has written a letter stating that because Mr Edwards would be unable to apply for a working visa overseas that company would no longer employ him. Both men appear to assume that Mr Edwards will be unable to travel. Neither deposes to having any special knowledge of foreign immigration law and practice.
We accept that Mr Edwards has personal reasons to travel to Canada and in his chosen career may be required to travel internationally, particularly to the United States, for work. However, the evidence of travel restrictions is unsatisfactory. Mr Newell referred us to s 36(2) of the Canada Immigration and Refugee Protection Act 2001, which states that a foreign national is inadmissible for criminality where he or she has committed “an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence…”.[6] He explained that sexual assault is an indictable offence under Canadian law. We observe that it is the act constituting the offence that causes inadmissibility. On the face of it, Mr Edwards is inadmissible to Canada whether or not he receives a discharge. Further, there is no evidence that inadmissibility is absolute, in the sense that there is no alternative visa available and no discretion that can be exercised in the applicant’s favour at any time in the future.
[6]Immigration and Refugee Protection Act S C 2001 c 27, s 36(2).
Turning to the United States, Mr Newell advised that ss 1182 and 1183 of the US Criminal Code provide that an alien who has been convicted of a crime involving “moral turpitude” — which includes indecent assault — is inadmissible where the maximum penalty exceeds one year’s imprisonment.[7] So it appears that Mr Edwards is inadmissible to the United States. But again, there is nothing to confirm that there is no alternative way in which he can enter that country, perhaps after a period of time, and no discretion that can be exercised in his favour.
[7]Aliens and Nationality 8 USC §§ 1182 and 1183.
It is perhaps as well to say something about the evidence that an applicant ought to adduce if he or she is to invoke foreign law and practice in support of a discharge.
The court must be “satisfied” that the consequences of conviction are out of all proportion to the gravity of the offence. It is settled law that an applicant for a discharge need only point to a real and appreciable risk that adverse consequences will ensue.[8] That standard recognises that the court is being asked to predict what will happen in the future. So, for example, Mr Edwards need only point to a real and appreciable possibility that he will need to travel overseas for work.
[8]DC (CA47/13) v R [2013] NZCA 255 at [43].
It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require expert evidence if they are not agreed[9] and cannot be established in any other way.
[9]As we expect they would be if, for example, they had been established in another case.
It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
If all of these things can be established, a sentencing court must further be satisfied that the offence is not so serious that it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.
The affidavit evidence in this case sufficiently establishes that Mr Edwards is likely to need to travel for work, but it falls significantly short of establishing that he will be unable indefinitely to travel to the United States or Canada. It follows that we must discount, as apparently unsupported, his employers’ belief that he will be unable to travel for work if convicted.
Balancing
We agree with Judge Down that the consequences of conviction are not out of all proportion to the gravity of the offence. We note that Mr Edwards does not otherwise challenge his sentence of supervision and 80 hours’ community work.
Decision
The application for an extension of time to appeal is granted. The application for leave to adduce fresh evidence is granted. The appeal is dismissed.
Solicitors:
Kevin McDonald & Associates, North Shore City for Appellant
Crown Law Office, Wellington for Respondent
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