Emery v Police
[2020] NZHC 2095
•19 August 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-65
[2020] NZHC 2095
BETWEEN DYLAN EMERY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 August 2020 Appearances:
A Hill for Appellant
D McWilliam for Respondent
Judgment:
19 August 2020
JUDGMENT OF LANG J
[on appeal against refusal to grant discharge without conviction]
This judgment was delivered by me on 19 August 2020 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Lawyers on Pukaki, Rotorua Crown Solicitor, Rotorua
[1] Mr Emery pleaded guilty in the District Court at Rotorua to a charge of breaching a protection order.1 On 21 July 2020, Judge Hollister-Jones declined to grant Mr Emery a discharge without conviction.2 The Judge convicted Mr Emery on the charge and sentenced him to nine months supervision with special conditions. He also directed Mr Emery to pay reparation in the sum of $300 to the victim of his offending.
[2] Mr Emery does not appeal against the sentence of reparation. He appeals, however, against the Judge’s decision declining to grant him a discharge without conviction.
The offending
[3] Mr Emery is 29 years of age. He has been in a relationship with the victim, his partner, for 15 years. They have three children aged two, eight and 10 years respectively.
[4] In 2019 Mr Emery and his partner began to experience financial and relationship difficulties. During that year police records show that the police were required to attend four family harm incidents between Mr Emery and his partner.3 In each incident Mr Emery was said to be the aggressor, with his partner being the primary victim and his children exposed to the incidents.
[5] On 20 November 2019, Mr Emery’s partner obtained a protection order against Mr Emery from the District Court at Hamilton. The police served a copy of the order on Mr Emery on 18 January 2020. The protection order provided that Mr Emery was permitted to live with his partner with her consent, but that she could revoke her consent at any point.
1 Family Violence Act 2018, ss 90(a), 9 and 112(1)(a).
2 New Zealand Police v Emery [2020] NZDC 14184.
3 The incidents occurred on 20 February, 24 March, 28 October and 16 November 2019.
[6] Mr Emery’s mental health deteriorated after he was served with the protection order. Eight days later, on 26 January 2020, he attempted to commit suicide. This resulted in his hospitalisation in a coma for a period of three days.
[7] Mr Emery returned to live with his partner with her consent in early February 2020. On 14 February 2020 he went on a hunting trip in the Manawatū region with his two sons. When he returned two days later, Mr Emery was intoxicated. He noticed that his vehicle was damaged, and an argument then ensued as to whether his partner had seen another man during Mr Emery’s absence. Mr Emery became enraged and punched a hole in the hallway of the address. He then began throwing objects around the bedrooms. He ignored pleas by his partner to stop this and to leave the address. He also told his partner he would “make it final this time, don’t cut me down this time” in an obvious reference to his earlier attempted suicide. Not surprisingly, his partner then called the police and they arrested Mr Emery.
[8] Mr Emery initially pleaded not guilty to the charge but ultimately entered a guilty plea on 3 June 2020.
Relevant principles
[9] 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.
…
[10] 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.
[11] When determining an application under s 106 the Court is required to consider three issues.4 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.5 Next, the Court must identify the direct and indirect consequences of a conviction being entered. Thirdly, it 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.
[12] 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
The Judge’s decision
[13] The Judge followed the required three stage process. In relation to the gravity of the offending, the Judge observed:7
Breach of protection order charges vary in their gravity due to the different circumstances in which they are committed. The charge has a maximum penalty of three years’ imprisonment which places it in the medium range of criminal offences, and the range can extend for instance from an unwanted text through to an assault.
[14] The Judge considered the salient features of the offending to be that Mr Emery had been living with his partner for 10 days prior to the incident giving rise to the charge, that his loss of temper resulting in property damage would have been frightening to both the adult victim and two year old child, and that the breach occurred
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].
5 Z (CA)447/2012 v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
6 Edwards v R [2015] NZCA 583 at [6].
7 New Zealand Police v Emery, above n 2, at [18].
on only one occasion.8 He considered the offending was at the lower end of the moderate range of offending of this type.9
[15] The Judge said he had taken into account matters contained in a lengthy statement Mr Emery had made to the police on 7 July 2020. This described the relationship difficulties that arose in in 2019, Mr Emery’s suicide attempt, and the circumstances leading to breach of the protection order.10 The statement also included the appellant’s wish to move on from the incident and his focus on his children and his work. The Judge concluded:11
I have carefully [read] the statement and there is nothing in it in which you express remorse for what occurred or express any insight into the impact of what occurred on the adult victim or your two year old. So that absence of remorse is a concern. As I said, you have no previous convictions and you are a well regarded employee, so when I consider your personal features and your response, they mitigate the offending to a degree, but they do not move the overall gravity out of the lower end of the moderate range.
[16] As to the direct and indirect consequences of conviction, the Judge noted that Mr Emery had not advanced employment difficulties or travel implications as consequences of a conviction. Rather, the consequence of concern was the existence of a conviction. Mr Emery considers this would be a stain against his character, which is otherwise generally that of a full contributor to society and a solid citizen.12
[17] The Judge observed that “[w]hilst a conviction is a consequence, it is an expected consequence” and not one that would prevent Mr Emery from moving on with his life.13 He concluded that the consequence would not be out of all proportion to the overall gravity of the offending.
8 At [20].
9 At [20].
10 At [22].
11 At [23].
12 At [24].
13 At [25].
Submissions
Mr Emery
[18] On Mr Emery’s behalf Mr Hill advances two grounds of appeal. First, he submits the Judge was wrong to conclude Mr Emery had shown no insight into his offending. He contends the evidence demonstrates Mr Emery fully understands his actions were not appropriate on the night and that he now wants to concentrate on maintaining a positive lifestyle moving forward. Mr Hill says Mr Emery demonstrated this insight from the outset because, when he learned his partner had called the police, he simply sat down and waited for them to arrive. This resulted in him being arrested without incident.
[19] In addition, Mr Hill points out that Mr Emery has complied with his bail conditions and has expressed a willingness to participate in restorative justice processes. Mr Hill submits that other material before the Judge also demonstrates Mr Emery has insight into his offending. This includes letters of support provided by his counsellor, his family and employer. Mr Hill contends the Judge ought to have treated Mr Emery’s insight into his offending as a factor counting in his favour.
[20] Secondly, Mr Hill submits the Judge downplayed the consequences of a conviction. He accepts that the conviction produces no employment or travel consequences for Mr Emery. He submits, however, that a conviction for offending involving family violence is a serious consequence. Mr Hill describes it as “black mark” against Mr Emery’s character. By this I understand him to suggest there is considerable stigma attached to a conviction of this type.
[21] Mr Hill referred me to Nash v Police, in which Mallon J allowed an appeal against conviction and granted a discharge without conviction.14 The appellant in that case was a 24 year old male who had pleaded guilty to one charge of assault. This related to a relatively minor assault against his partner.15 The appellant’s employment was not at risk as a result of a conviction. Mallon J observed:
14 Nash v Police HC Wellington CRI 2009-485-7, 22 May 2009.
15 At [2].
[19] I accept the submission for Mr Nash that there are general consequences that follow from a conviction. In a variety of ways (eg. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer that question honestly. It may also materially disadvantage him – as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction. It is true that the record will show that the conviction was for a minor matter because it will show that Mr Nash was discharged, but it will also show that it was serious enough for a conviction to have been entered. Mr Nash does have other convictions, but under the Criminal Records (Clean Slate) Act 2004 he will soon have a “clean slate” in relation to them. It is apparent from Mr Nash’s record that he has since that time stayed out of trouble and, according to the other material before the Court, is a hard working young man.
[20] Overall I am satisfied that these general consequences of conviction which may operate to Mr Nash’s disadvantage are out of all proportion to the gravity of the offending, particularly in light of the mitigating factors. Courts may be reluctant to grant convictions without discharge in situations of domestic violence, but there are some cases which warrant this course and I consider that this is one such case. Mr Nash has offered to make a donation to the Woman’s Refuge. I will, however, leave it to him to do so voluntarily without making it a condition of allowing his appeal (via an adjournment to see that payment is made).
[22] In conclusion, Mr Hill submits that this Court should view Mr Emery’s conduct as low-level offending that was out of character. He contends the Court should place weight on the fact that Mr Emery’s mental state was fragile at the time of offending, and that he has subsequently sought to better himself, including by developing insight into his offending through counselling. He contends the stain of a conviction would be a consequence out of all proportion to the gravity of the offending.
The respondent
[23] Ms Banuelos, for the respondent, submits that the District Court Judge was correct to decline the application for discharge without conviction.
[24] As to the gravity of the offending, Ms Banuelos submits the Judge was correct to characterise the offending as being at the lower end of the moderate range. She highlights the observation by the Court of Appeal in Weidemann v R, that “[b]reaches of protection orders are inherently serious. The psychological harm caused to a complainant by a breach should not be understated.”16
16 Weidemann v R [2018] NZCA 381, [2018] NZFLR 707 at [43].
[25] Ms Banuelos accepts Mr Emery has no previous convictions, is of good character, and pleaded guilty at the earliest opportunity. As to the issue of remorse, she submits the Judge was correct to find Mr Emery failed to express remorse beyond that inherent in a guilty plea. She notes that his statement to the police failed to include an apology or an acceptance of responsibility for the offending. Instead, Ms Banuelos submits that Mr Emery sought to justify or excuse his actions by blaming the victim for being unfaithful and addicted to methamphetamine. She does not accept his subsequent positive attitude to other people demonstrates remorse or acceptance of responsibility.
[26] In terms of the consequences of a conviction, Ms Banuelos says it is recognised that a “criminal conviction is of itself a black mark on a record especially for somebody with no previous history.”17 She also refers to the following observation by the Court of Appeal in R v Taulapapa: 18
…stigma is an ordinary consequence of conviction for young people, but…the ordinary consequence[s] of conviction are unlikely to be out of all proportion to the gravity of a young person’s offending.
[27] Ms Banuelos notes that Mr Emery has a longstanding involvement in the roofing industry, and there is no suggestion from his current employer that a conviction will result in termination of his employment. Furthermore, Mr Emery does not suggest he may change the nature of his employment. In summary, she submits any stigma that may flow from a conviction is not a consequence wholly disproportionate to the offending.
Decision
[28] I consider the Judge correctly categorised the offending as being at the lower end of moderate. The incident in question would not only have been frightening for Mr Emery’s partner but it was also viewed by his children. The reference to his earlier attempted suicide would have been particularly concerning to all who heard it.
17 DC (CA47/2013) v R [2013] NZCA 255 at [44].
18 R v Taulapapa [2018] NZCA 414 at [38].
[29] The position may have been different if this were an isolated incident of its type. The evidence confirms, however, that this is not the case. First, there was an incident in 2007 in which the police were called to a dispute between Mr Emery and his present partner. Then, in 2016, the police served a Police Safety Order on Mr Emery because of another similar incident. There were then the four instances during 2019 when the police were called to domestic disputes in which Mr Emery was named as the aggressor. In my view this factor outweighs any additional credit that might be available to Mr Emery for demonstrating insight and remorse.
[30] Although the conviction may result in some stigma for Mr Emery I consider that consequence to be low because it will have no further ramifications for him. As I indicated to Mr Hill during the hearing, I consider it important that there be a public record of offending such as this even where it results in stigma for the offender. It constitutes a form of flag, or signpost, for the police and the courts should Mr Emery become involved in similar conduct in the future.
[31] It follows that I agree with the Judge’s conclusion that the direct and indirect consequences of the conviction were not out of all proportion to the overall gravity of the offending.
Result
[32]The appeal against refusal to grant a discharge without conviction is dismissed.
Lang J
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