Flatman-Williams v Police
[2025] NZHC 2100
•30 July 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-53
[2025] NZHC 2100
BETWEEN TAINE JOSEPH FLATMAN-WILLIAMS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 July 2025 Appearances:
J A T Ross for Appellant
M B Brownlie for Respondent
Judgment:
30 July 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 30 July 2025 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
FLATMAN-WILLIAMS v NEW ZEALAND POLICE [2025] NZHC 2100 [30 July 2025]
Introduction
[1] The appellant, Taine Flatman-Williams, pleaded guilty to a charge of common assault.1 Judge Duggan refused to grant him a discharge without conviction. Instead, she convicted him and ordered him to pay a $500 emotional harm reparation.2 Mr Flatman-Williams now appeals that decision.
Facts
[2] On 25 March 2024, around 1.30 am, the appellant was at a bar in Queenstown. There were concerns about the behaviour of the appellant and a second man (who was removed from the bar without issue). When the appellant was asked to leave, he refused. He was holding two glasses. The staff took the glasses off him, got him out of the bar and when he was released, he punched the doorman in the jaw.
[3] About 10 minutes later, the appellant climbed onto a wheelie bin and jumped into the bar’s courtyard. When he was found, he was again physically removed from the premises by the doorman. When outside, the doorman pushed the appellant to create space between them given he had earlier been punched. When pushed, the appellant fell to the ground then leapt up and delivered three or four further punches to the victim’s face.
District Court decision
[4] The Judge acknowledged the appellant sought a discharge without conviction. As she identified, that required her to consider both the seriousness of the offending and the potential consequences of a conviction.
[5] The Judge considered the seriousness of the offence was moderate. In reaching this conclusion, she noted that the first punch connected with the victim’s head and there were further punches. She also noted the victim impact statement which recorded the victim’s anxiety in going back to work for fear of another assault. She also took account of the appellant’s guilty plea, the fact it was his first conviction, and
1 Crimes Act 1961, s 196; maximum penalty one year’ imprisonment.
2 Police v Flatman-Williams [2024] NZDC 25514.
that he had done “quite a bit” of voluntary work and personal work since the offending, having completed 101 hours of voluntary work and completed the Positive Life Skills programme.
[6] Turning to the consequences of conviction, the Judge recorded that the appellant was concerned about the potential impact on his P endorsement on his driver’s licence, his employment, and on the ability to travel in the future.
[7] The Judge was not satisfied the potential consequences were out of all proportion to the seriousness of the offending. She was not prepared to give a discharge without conviction, but taking account of the voluntary and personal work already completed, she did not impose a sentence of supervision or community work. Instead, she imposed a requirement to pay an emotional harm reparation in the sum of
$500.
Principles on appeal
[8] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
[9] The decision under s 107 involves a matter of fact, requiring judicial assessment. Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.3 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.4
3 H (CA680/11) v R [2012] NZCA 198 at [35]–[36].
4 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
Submissions
Appellant’s submissions
[10] Mr Ross, for the appellant, submits the Judge misapplied the test for a discharge without conviction; did not give sufficient weight to personal mitigating factors when assessing the gravity of the offending (specifically remorse, prior good character, offer to make amends, counselling, adherence to bail conditions, and community service); and failed to give sufficient weight to the consequences of a conviction and the impact on the appellant. He submits the gravity of the offending itself was moderate, which was reduced to low-to-moderate when his personal mitigating factors were considered, and when the consequences are weighed against this, they are out of all proportion with the gravity of the offending and a discharge ought to have been given.
Respondent’s submissions
[11] Mr Brownlie, for the respondent, submits the offending alone is at the higher end of offending for a charge of common assault. The Judge acknowledged there were several relevant personal mitigating factors, being the appellant’s guilty plea, prior good character, and voluntary community work. Mr Brownlie submits the Judge did not err in determining the gravity of the offending was ‘moderate’.
[12] Mr Brownlie submits that the risk to current or future employment and potential difficulty with overseas travel are speculative and stem from the offending itself not necessarily the conviction, meaning the consequences are not out of all proportion to the gravity of the offending.
Analysis
The gravity of the offending
[13] I accept that the gravity of the offence itself is moderate. The offending involved multiple punches to the victim’s head and resulted in bruising and tenderness to his face, top of his head, and jaw. It has also had psychological consequences for the victim. However, I accept it was not premeditated and the second phase of the
assault, while clearly unjustified, was in response to being pushed to the ground by the victim.
[14] Turning to the personal mitigating factors, I acknowledge there are a number of these and the Judge did not expressly refer to all of them. The Judge recognised the appellant’s guilty plea, lack of prior convictions, and voluntary and personal work. In particular, the appellant’s voluntary work with the Hospice (over 100 hours) goes well beyond the usual self-directed volunteering that this Court sees. He has also engaged in personal development through the Positive Lifestyle Programme.
[15] In terms of the factors which were not expressly referenced by the sentencing Judge and which are advanced by Mr Ross as mitigating factors, I accept this includes the appellant’s remorse as articulated in his affidavit, including offering to participate in restorative justice and to make payment of emotional harm reparations. Mr Ross also submits that the Judge should have acknowledged the fact the appellant spent approximately seven months on bail without breach of conditions (which included a geographical restriction and a condition not to enter licenced premises including supermarkets) as a mitigating factor. However, I do not agree this is a mitigating factor. That is no more than what is expected when bail is granted.
[16] I consider that the appellant’s mitigating factors, being no prior convictions, his early acknowledgment of the assault and guilty pleas, his prior good character, remorse and offer to make amends, counselling and, in particular, his community service with Hospice, considered in totality, reduce the gravity of the offending to low-to-moderate.
Direct and indirect consequences of a conviction
[17] The appellant must show there is a real and appreciable risk of direct or indirect consequences that are out of all proportion to the gravity of the offending. Here, the appellant contends there are several consequences, being the general stigma of conviction, the potential impact on his P endorsement on his driver licence, the effects on his employment prospects, and on future overseas travel.
[18] It is well recognised that the black mark of a conviction alone is a significant consequence on an otherwise clean record.5 While stigma is often referred to as a ‘general consequence’ of a conviction, in Nash v Police, this Court was satisfied that the general consequences of conviction which may operate to the offender’s disadvantage were out of all proportion to the gravity of the offending (in relation to a minor family violence offence) and a discharge without conviction was provided.6 However, as accepted by Mr Ross, while stigma may be relevant, this is not a case where the stigma of a conviction, on its own, is out of all proportion to the gravity of the offending.
[19] In respect of the specific consequences of a conviction, Mr Ross submits that it is unclear whether a key document relating to the appellant’s job, prospects of promotion and need to travel, being the employment reference dated 1 October 2024 supplied by the appellant’s manager, Darb Richmond (manager’s reference) was considered by the Judge. This is because the appellant also submitted a reference from a director of the company and yet the Judge only referred to a reference from “an employer” saying the “reference from [his] boss is glowing” and notes the employer is looking to give the appellant “the opportunity to take on senior management roles”. I have read both letters. While both letters are positive, only the manager’s reference refers to potential opportunities to take on senior management roles. I am satisfied the Judge did consider the manager’s reference.
[20] In his reference, the manager, Mr Richmond addressed what the appellant needed to do to progress in the business: which included to obtain a firearms licence, a duty manager’s certificate, and maintain a ‘fit and proper’ certificate for his jet boating licence. The letter also laid the foundation for the appellant to potentially travel overseas for his employment if he is promoted.
[21] Mr Ross submits the manager’s reference details the appreciable risk of consequences that would adversely affect the appellant. He submits a conviction will bear on the ‘fit and proper’ standing required for the licences and the duty manager’s certificate. He relies on Police v Leask where it was accepted that the risk of
5 Gaunt v Police [2017] NZCA 590 at [15].
6 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19]–[20].
jeopardising a duty manager’s certificate was a serious consequence.7 However, this is a decision of a community magistrate. It can have little precedent value in this Court. In any event, the offender in Leask was charged with drink driving which is clearly more closely related to whether a person would be considered ‘fit and proper’ in the context of being a duty manager at licenced premises, than the conviction in the current case.
[22] Turning to the ‘fit and proper’ assessment for transport licensing, the assessment criteria are set out in s 30C of the Land Transport Act 1998. The overall focus is on “the interests of public safety” and ensuring the public are protected from “serious or organised criminal activity.”8 There is also a focus on criminal offending which would have a bearing on the person’s ability to safely provide transport services.9 None of these criteria suggest a single conviction, with a very modest penalty and which is not repeated, would be an impediment to satisfying the Director that the appellant is a fit and proper person in relation to the provision of a transport service.
[23] While the conviction may have more relevance to being assessed as a ‘fit and proper person’ for firearms licencing, the Firearms Safety Authority states they will require information on whether someone has been “charged with or convicted of an offence punishable by imprisonment”. A discharge without conviction could still have a bearing on that assessment.
[24] In any event, the modest sentence imposed will indicate the very low level of this offending. Furthermore, it is clear the appellant can call on character references which demonstrate this was offending which was out of character and that he is otherwise an honest, law-abiding person.
[25] Ultimately, I find there is insufficient evidence to suggest that the conviction will impact the appellant’s current employment or his ability to obtain or maintain requisite licences and certificates.
7 Police v Leask DC Invercargill CRI-2023-017-154, 19 October 2023.
8 Land Transport Act 1998, s 30C(1).
9 Section 30C(2).
[26] Mr Ross also submits the Judge erred in not considering the impact of a conviction on the appellant’s ability to obtain future work. He relies on an observation of Nation J in Godoy v R that in a competitive job market, a conviction alone may be enough to deter prospective employers from making further enquiries about an applicant or the seriousness of their offending.10 However, this comment was made in the context of an offender who was convicted of theft from their employer, and was prefaced with:11
On many occasions when a discharge for conviction is sought, the offender will have to establish the specific and likely significant consequences of a discharge on future employment, study or other particular prospects to obtain a discharge. On other occasions, the obvious normal stain of a conviction, particularly for dishonesty, may, in all the circumstances, be sufficient.
[27]Mr Ross also relies on the Court of Appeal guidance in R v Taulapapa:12
The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview; this may apply particularly to unskilled or semi-skilled work.
[28]This also ignores the other observations made by the Court in that case, being:13
(a)Conviction carries a social stigma which the law sustains by recording and publishing convictions. It may affect a person’s career, but that consequence must normally yield to the employer’s right to know. This principle extends to independent bodies charged with assessing the character or suitability for a particular career. …
(b)The consequence may be severe if employers are unwilling to look behind the conviction to consider the person’s merits and that reaction is unfair to the offender in the sense that the conviction itself ought not exclude them from the career or job concerned. Such risk may arise where the conviction speaks to character or records a serious offence but does not fairly reflect the offender’s character or culpability. Theft may be an example of an offence that may lead employers to reject an applicant without further inquiry.
[29] Mr Brownlie submits that the rationale for recognising the effects on employment in such cases is that young people do not yet have a foothold in their
10 Godoy v R [2017] NZHC 2172 at [41].
11 At [41].
12 R v Taulapapa [2018] NZCA 414 at [42(d)] (footnote omitted).
13 R v Taulapapa, above n 12 at [42] (footnotes omitted).
career and can be disproportionately affected in advancing that by a conviction. That is not the case here and, furthermore, this was not a one-off youthful indiscretion. In any event, there is no concrete evidence that the appellant’s career will be hindered by the conviction. His employers think highly of him and are supportive of him. They see him progressing on to more senior roles. It also appears they would provide excellent references if he were to move to another employer, given the references provided to the Court.
[30] The impacts of travel, too, are entirely speculative. There is no evidence of plans to travel in the near future and, in any event, no evidence that this minor conviction would prevent him from travelling.
Proportionality
[31] While I assess the gravity of the offending as low-to-moderate, I consider the submitted consequences are entirely speculative or are a consequence of the offending rather than the conviction. The Judge did not err in finding the consequences of conviction were not out of proportion to the gravity of the offending.
Result
[32]The appeal is dismissed.
Solicitors:
Crown Solicitor, Invercargill
Copy to:
J A T Ross, Barrister, Invercargill
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