Fielding v R
[2019] NZHC 1472
•26 June 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-19
[2019] NZHC 1472
BETWEEN ALISOHN JOAN FIELDING
Appellant
AND
THE QUEEN
Respondent
Hearing: 11 June 2019 Appearances:
Appellant in person with a McKenzie Friend D M Helm for the Respondent
Judgment:
26 June 2019
JUDGMENT OF CULL J
[1] Ms Fielding appeals against her conviction and sentence for wilful trespass, on the grounds that the District Court Judge was wrong to refuse her a s 106 discharge without conviction. The District Court convicted Ms Fielding,1 and ordered her to come up for sentence if called upon within a period of nine months.2
[2] Ms Fielding appeals against her conviction and sentence on the grounds that a miscarriage of justice has occurred, and the consequence of a conviction is out of proportion to the gravity of the offending.
[3] The Crown opposes the appeal. The Crown submits there was no material error by the District Court Judge in entering a conviction in the circumstances, and the sentence imposed was appropriate and not manifestly excessive.
1 Police v Fielding [2019] NZDC 3359.
2 R v Fielding [2019] NZDC 6898.
FIELDING v R [2019] NZHC 1472 [26 June 2019]
Factual background
[4] Ms Fielding’s first appeal to the High Court against her initial conviction and sentence was successful.3 Collins J quashed her conviction and remitted the case to the District Court, for a further hearing. The background to this case has been described succinctly by Collins J as follows:
[2] On 13 January 2018, Ms Fielding, who had previously been in a relationship with the complainant, trespassed onto his property. The complainant was asleep at the time, but Ms Fielding’s presence was recorded on CCTV footage. Ms Fielding had previously been served with a notice under the Trespass Act 1980 requiring her to keep off the complainant’s property.
[3] The CCTV footage shows a person disguised in a white top with a hood and a scarf covering their face. Around 6.42 am, this person emerged out of some bushes on the side of the driveway to the complainant’s property and placed a note under the windscreen wiper of a vehicle belonging to the complainant’s then girlfriend. The person then left through the same bush area.
[4] About 10 minutes later, the same person returned to move some furniture from the complainant’s deck.
[5] About 15 minutes after that, the same person peered into a window after they had been standing some time looking at the property.
[6] Three minutes later, the person threw a plant onto the complainant’s front porch.
[7] Four minutes after that, the person removed a note that had been left for a courier and opened the front door, leaving it slightly ajar.
[5] Ms Fielding has no other previous convictions. Since the offending, she has been on medication for a range of mental illnesses. Ms Fielding submitted initially that she was sexually assaulted by the complainant before the offending.4 She explains that during the offending, she was not in her normal state of mind; she was traumatised by the sexual assault. She says the offending was a one-off incident she regrets.
3 Fielding v Police [2018] NZHC 2222. Her initial sentence was supervision for nine months, along with an order to pay emotional harm reparation of $200 to the complainant.
4 This was first raised in her first appeal against conviction and sentence in the High Court.
Procedural history
[6] In the first hearing of this case, Ms Fielding pleaded not guilty to the charge of trespass.5 Her defence was that she was not the person who could be seen in the CCTV footage trespassing onto the complainant’s property.
[7] The District Court Judge found that Ms Fielding was the person in the CCTV footage and therefore convicted her. He accepted the evidence given by the complainant identifying Ms Fielding’s mannerism of walking, and his recognition of her clothing, shoes, eyes and eyebrows.
[8] The Judge rejected a submission from then-counsel for Ms Fielding that she should be dealt with by being ordered to come up for sentence if called upon. He did not regard that outcome as sufficient for Ms Fielding’s offending. He concluded that nine months’ supervision was the least restrictive sentencing outcome. He also imposed special conditions requiring Ms Fielding to undertake such assessment, counselling, courses, treatment and training as directed by the probation officer.6 At this first hearing, no application for a discharge without conviction was made on Ms Fielding’s behalf.
[9] Ms Fielding appealed this conviction and sentence to the High Court.7 She submitted she ought to have been discharged without conviction. Collins J noted that both counsel acknowledged the District Court Judge made no error in his assessment of the evidence. The appeal proceeded on the basis that Ms Fielding had new evidence to be brought to trial, namely:
(a)A new affidavit by Ms Fielding asserting that the complainant had sexually assaulted her after plying her with alcohol and spiking her drink;
(b)A new affidavit by Ms Bennett, the homestay coordinator at Kapiti College, confirming that Ms Fielding would be unable to continue to
5 Police v Fielding [2018] NZDC 13970.
6 Police v Fielding [2018] NZDC 14602.
7 Fielding v Police, above n 3.
provide homestay services for Japanese students if her conviction remains;
(c)The affidavit from Ms Fielding asserting would be disadvantaged in her professions with a conviction (she is training to become a health educator); and
(d)An affidavit by Ms Fielding’s doctor saying that having to explain her conviction would be retraumatising for Ms Fielding and would have a detrimental impact on her mental health.
[10] Collins J held that although most of the new evidence was not fresh as it was available to be called at the hearing in the District Court, the evidence was, on its face, credible. He held that “the affidavits record matters that, if accepted, may have affected the sentence imposed in this case”.8 Accordingly, he held there was a risk of miscarriage of justice if the evidence was excluded and admitted the evidence. He also found that in light of the allegation of sexual assault, if the allegation were true it might provide a very strong mitigating circumstance for Ms Fielding’s offending.9 He held there was a miscarriage of justice in that there was an error on the part of trial defence counsel in not seeking a discharge without conviction, or an occurrence that created a real risk that the outcome of the trial was affected.10
[11] Collins J therefore allowed the appeals against conviction and sentence, quashed the conviction, and remitted the case back to the District Court to consider the new evidence from Ms Fielding and determine if Ms Fielding should be discharged without conviction.11
District Court decision
[12] In the second hearing before the same Judge in the District Court, Ms Fielding did not pursue her allegation that she had been sexually assaulted by the victim. The
8 At [18].
9 At [25].
10 At [28].
11 In accordance with the Criminal Procedure Act 2011, ss 233(3)(e) and 251(2)(c).
District Court Judge therefore found that under s 24 of the Sentencing Act 2002 (the Act), this claim could not be taken into account by the Court as a mitigating factor in determining sentence.12
[13] The Judge declined to grant a discharge without conviction. He undertook the two-stage inquiry: first, s 107 of the Act requires the Court to consider the (dis)proportionality of conviction, in which the Court is required to consider the three- step process set out in Z v R;13 second, if the Court is satisfied the jurisdictional test on disproportionality is met, the Court must determine whether it should exercise its residual discretion to grant a discharge.
[14] In relation to the jurisdictional test on disproportionality, the Judge found the aggravating factors of the offending were:
(a)There were a number of trespasses on to the property over a period of 35 minutes.
(b)There were considerable efforts made to disguise herself.
(c)Ms Fielding was not just on the property and trespassing, but on each occasion she was doing a different act (placing a note under a windscreen wiper, moving furniture, peering in windows, throwing a plant and opening the front door).
[15]The Judge found there were no mitigating factors to the offending.
[16] The Judge found there were no aggravating factors in respect of Ms Fielding personally. However, in respect of mitigation, he noted that Ms Fielding is of good character, has no previous convictions, and has a 17 year old daughter. He also noted the steps Ms Fielding had taken since the offending, including seeing the Kāpiti Community Mental Health team and counselling.
12 It was explicitly submitted by counsel for Ms Fielding that Ms Fielding “does not seek to rely on the fact that she was sexually assaulted as a mitigating factor at the sentencing hearing”; and “Counsel is aware that the Court will not take into account the specific references to sexual assault in the affidavits”.
13 Z v R [2012] NZCA 599, [2013] NZAR 142 at [8]; and see also [26] of this judgment.
[17] Although this case was remitted to the District Court to test the evidence in support of the defendant’s application for a discharge without conviction, the sexual allegation was not pursued, so the sexual allegation was put to one side.
[18] Taking all these factors into account, the Judge concluded that the gravity of the offending was moderate for offending of this type. It was premeditated, planned, and persistent with a number of trespasses occurring within a short timeframe.14
[19] The Judge then considered the consequences of a conviction, and held they were not exceptional. In particular, the need for a defendant to explain the circumstances of past offending was a natural and ordinary consequence of being convicted and not out of all proportion to the gravity of Ms Fielding’s offending.15 He further held that the consequences regarding future employment and prospects as a homestay parent were insufficient in themselves to justify a discharge without conviction.16 Because the Judge found the s 107 gateway test was not satisfied, he did not consider the residual discretion. He entered a conviction and gave judgment for sentence separately.17
[20] The Judge agreed that a sentence of supervision was unnecessary, as Ms Fielding had already undertaken counselling through Compass Health and was undergoing ongoing specialist counselling. He considered that the least restrictive outcome was to convict Ms Fielding and order her to come up for sentence if called upon within nine months.18
Approach to appeal
[21] An appeal against conviction in a Judge-alone trial is a general appeal. This appeal is governed by s 232 of the Criminal Procedure Act 2011. An appellant must satisfy the Court that a miscarriage of justice has occurred either because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of
14 Police v Fielding, above n 1, at [30].
15 At [63].
16 At [64].
17 R v Fielding, above n 2.
18 At [12].
justice has occurred”, or for any other reason.19 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected" or “has resulted in an unfair trial or a trial that was a nullity”.20 As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.21
[22] The previous approach under s 232(2)(b) has been that an unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair.”22 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.23
[23] However, the Supreme Court has recently re-examined the role of s 232(2)(b) and the general function of an appellate court.24 In Sena v Police, the Supreme Court held that the appellate court should re-evaluate the evidence and an appellant is entitled to the appeal court’s determination of whether the first instance Judge was right or wrong substantively on the outcome.25 The previous review function of whether a finding was open to the trial Judge therefore has no application. On this approach, if the appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred in their assessment.26
[24] The Court cautioned however that this change of approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no hearing at first instance.27 Since it is an appeal, it is for the appellant to show that an error has been made. In assessing whether there has been an error, an appellate court must take into account any advantages a trial Judge may have had.28 Where the
19 Criminal Procedure Act 2011, s 232(2).
20 Section 232(4).
21 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
22 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
23 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 22, at [78].
24 Yusuke Sena v New Zealand Police [2019] NZSC 55.
25 At [34] and [38].
26 At [38].
27 At [38].
28 At [38].
challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.29
[25] Ms Fielding submits she ought to have been discharged without conviction. The power of a court to order a discharge without conviction is set out in s 106 of the Sentencing Act 2002. Section 107 is the threshold which must be met before a court’s discretion can be exercised under s 106. Section 107 states:
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.
[26]A determination under s 107 has been held to be a three-stage process:30
(a)consider the seriousness or gravity of the offending;
(b)consider the direct and indirect consequences of a conviction on the offender; and
(c)determine whether the consequences would be out of all proportion to the gravity of the offending.
[27] The Court of Appeal has expressed differing views as to whether aggravating and mitigating features personal to an offender should be considered at the gravity of offending stage or the discretionary assessment stage. However, this is unlikely to be of great practical significance.31
[28] Because s 107 is a question of fact requiring judicial assessment, an appeal against a finding that s 107 is not satisfied is an appeal on the appellate principles outlined above, not an appeal against the exercise of discretion.32
29 Sena, above n 24, at [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] (footnote omitted).
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17], R v Blythe [2011] NZCA 190,
[2011] 2 NZLR 620 at [14]; DC (CA47/13) v R [2013] NZCA 255 at [31]; and Z v R, above n 13,
at [8].
31 DC (CA47/13) above n 30; and Blythe, above n 30.
32 R v Hughes, above n 30, at [63]-[66]; and Maraj v Police [2016] NZCA 279 at [11].
The parties’ positions
[29] Ms Fielding, who is self-represented, submits the Judge erred in his assessment of the evidence such that a miscarriage of justice has occurred,33 or that a miscarriage of justice has occurred for some other reason.34 Her principal objection is that the Judge in the initial 2018 decision did not hear her account of events as she was advised by her legal advisor not to give evidence. The relevant findings on the facts in the decision under this appeal were again taken from the initial 2018 decision, and Ms Fielding says they were incorrect and unfair. She submits the direct and indirect consequences of the resulting conviction are disproportionate to the gravity of the offending, and a discharge without conviction ought to have been granted.
[30] The Crown submits the District Court Judge correctly assessed the offending as being in the “moderate category” for offending of this type. The offending involved the intrusion of the victim’s privacy at an elevated level by a disguised offender who trespassed on five occasions on the same day and, among other things, left an offensive note.
[31] Similarly, the Crown submits the Judge was correct in his assessment that Ms Fielding’s need to explain to a potential employer the circumstances of her offending was a natural and ordinary consequence of conviction, and not out of all proportion to the gravity of the offending. The balancing exercise, the Crown submits, weighs against a discharge without conviction. The sentence imposed was not manifestly excessive in the circumstances, it being at the least restrictive end of the hierarchy of sentences and orders under the Sentencing Act 2002.
Discussion
Gravity of the offending
[32] The District Court Judge found that the following aggravating factors in relation to the offending were relevant:
33 Criminal Procedure Act 2011, s 232(2)(b).
34 Section 232(2)(c).
(a)Ms Fielding made considerable efforts to disguise herself, suggesting the offending was premeditated and planned.
(b)There were five trespasses on the property where Ms Fielding was doing different things on each occasion.
[33] I consider on the material before me that the following four matters are relevant mitigating factors in an assessment of Ms Fielding’s offending. They are:
(a)there is one charge only of wilful trespass;
(b)the motivation for the note left by Ms Fielding;
(c)the explanation of her clothing at the time; and
(d)the absence of planning or premeditation.
[34] Ms Fielding faces one charge of wilful trespass, which occurred on one occasion. Although Ms Fielding was present on the property and did the things identified in the Judge’s decision, these occurred on the one occasion. I consider the Judge has treated the offending as five separate trespasses, as though they were separately charged. As a result, in my view, the Judge has overstated the offending.
[35] The note Ms Fielding left when trespassing was self-admittedly in very crude terms, and on this point the Judge rejected Ms Fielding’s explanation. He concluded that the language in the note seemed more indicative of jealousy at the complainant’s new relationship than coming from a desire to protect other women.35 During the hearing before me, Ms Fielding canvassed the discovery she made about the complainant, that during her relationship with him he was having sexual relations with three other women without her knowledge. There were potential consequences to Ms Fielding’s health, given her recent surgery. Her note was not motivated by jealousy, as the Judge found, but as a warning to the complainant’s new partner. She believed,
35 R v Fielding, above n 2, at [60].
as she emphasised to this Court, that she had some social responsibility to warn other vulnerable women.
[36] From the material before me, Ms Fielding accepts that she had been warned to keep away from the property, but when she was on her bike ride she decided to go to the complainant’s property. The clothing she was wearing was not a disguise, but the clothing she wears while exercising in the mornings, including a full beanie. She has an autoimmune condition, making her susceptible to bronchitis and other conditions, so Ms Fielding wears full clothing around her face and neck.
[37] She explained to the Court that her actions in going to the complainant’s property arose out of a spur of the moment decision. Ms Fielding said she knew the back door is always unlocked at the complainant’s property, so leaving it ajar let the complainant know that someone had been on the premises. That is the reason she left not a plant on the verandah, but a flower, strategically placed on the top step, so he would see it.
[38] None of the detail of the above four factors was placed before the District Court Judge. Although Ms Fielding had instructed her respective legal representatives about these matters, it appears they were not raised before the District Court Judge. In my view, this places Ms Fielding’s offending in a different light to that cast by the Judge on the material that he had before him. This is not a reflection on the Judge or, indeed, the High Court Judge, who also did not have the detail of the material I heard, some of it of a highly private nature. Whilst the circumstances of the relationship do not excuse Ms Fielding’s offending, they cast her actions in a different light from that of a jealous or spurned ex-partner.
[39] The aggravating features that the District Court Judge found in relation to this offending, on the limited information before him, can be seen to be overstated in light of the information now before this Court. In my view, Ms Fielding’s wilful trespass needs to be seen in light of her discovery of the complainant’s behaviour, her upset at the serious health impact it could have had on her personally, the sporadic nature of the offending and emphasis on the fact that this is one occasion, and indeed one charge,
of wilful trespass. These factors do not excuse her offending, but they do raise mitigating factors in relation to it.
Direct and indirect consequences
[40] The Judge rejected Ms Fielding’s submissions that a conviction would impact her future employment in an exceptional way. He held that her need to explain the circumstances of any offending is a natural and ordinary consequence of being convicted. Similarly, he observed that the homestay and employment consequences are insufficient to justify a discharge without conviction.
[41] In making this assessment, the Judge was not referred to the Court of Appeal decisions in Gaunt v New Zealand Police and DC v R.36 Both of those decisions reinforce that the “black mark” of a conviction alone is a significant consequence on an otherwise clean record, in that the consequences of such a conviction on future employment is relevant where it would have a detrimental impact on an appellant’s ability and opportunity to obtain employment.37
[42]There are three pivotal consequences to consider:
(a)Ms Fielding’s mental health: explaining the circumstances of the conviction will require discussion of the circumstances and breakdown of the relationship between the complainant and Ms Fielding. This will be traumatising for Ms Fielding and negatively affect her mental health.
(b)Her future employment: having a conviction will negatively impact her future employment prospects.
(c)The loss of her homestay service: having a conviction will negatively impact her prospects as a homestay parent.
[43] The consequences of Ms Fielding’s conviction on her employment opportunities are already evident. Because of her conviction, she can no longer be a
36 Gaunt v New Zealand Police [2017] NZCA 590; and DC (CA 47/2013), above n 30.
37 Gaunt, above n 36, at [14]–[15].
homestay parent. She has been advised by the homestay organisers that she is no longer eligible for the scheme.
[44] Ms Fielding advised the Court that she made a job application online, disclosing her conviction and was promptly rejected. She attributes the job rejection as a consequence of her conviction, although there was no explanation given by the prospective employer.
[45] Ms Fielding was partway through a health educator’s qualification and has put it on hold until this proceeding has been determined and her counselling completed. Ms Fielding submits that a conviction will prevent her from obtaining employment as a health educator. She further submits that the fact she is 52 years of age already makes it difficult to obtain employment, her health conditions limit her ability to work, and therefore a conviction is having, and will have, an exceptional detrimental impact on her future employment prospects.
[46] I am satisfied that the consequences of a conviction for Ms Fielding would be out of all proportion to the gravity of the offence. I am satisfied that there has been error:
(a)in the assessment of the gravity of the offending and any mitigation of it, because relevant material was not placed before the District Court Judge;
(b)in not placing sufficient weight on the consequences of a conviction of Ms Fielding’s employment prospects, particularly given her age and health in returning to the employment market; and
(c)in concluding the consequences of a conviction would not be disproportionate to the gravity of the offence.
[47]I accept a miscarriage of justice has occurred as a result.
Result
[48]Ms Fielding’s appeal is allowed.
[49]The conviction on the charge of wilful trespass is quashed.
[50] Ms Fielding is discharged without conviction under s 106 of the Sentencing Act 2002.
Cull J
Solicitors:
Luke Cunningham & Clere, Wellington for the Respondent
3