Fowler v Police
[2024] NZHC 3275
•6 November 2024
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY COMPLAINANTS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL
PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2024-463-000107
[2024] NZHC 3275
BETWEEN LANA KYLIE FOWLER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 November 2024 Appearances:
J W Howell for Appellant
E S R O’Brien for Respondent
Judgment:
6 November 2024
JUDGMENT OF VAN BOHEMEN J
[appeal against refusal to grant a discharge without conviction]
This judgment was delivered by me on 6 November 2024 at 12 pm. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Solicitors:
Crown Solicitor, Rotorua
Lance Lawson Limited, Mount Maunganui
FOWLER v NEW ZEALAND POLICE [2024] NZHC 3275 [6 November 2024]
[1] Lana Fowler appeals Judge C J Harding’s refusal to grant a discharge without conviction under s 106 of the Sentencing Act 2002.1
[2] Ms Fowler appeared for sentence in the District Court at Tauranga on 13 August 2024 having pleaded guilty to three charges of assaulting a child.2 The Judge declined Ms Fowler’s application for a discharge without conviction and sentenced her to six months’ supervision.
[3] Ms Fowler contends the Judge erred in refusing to grant a discharge without conviction because he:
(a)failed to place sufficient weight on the consequences of a conviction; and
(b)failed to properly consider the distinction between active charges and convictions.
Relevant background
[4]Ms Fowler is the mother of three children.
[5] The police summary of facts records that, during 2021 and 2022, Ms Fowler would occasionally hit two of her children, who were aged eight and 10, with a wooden spoon as a form of discipline.
[6] On 6 June 2023, after an argument between Ms Fowler and one of her children, then aged 10, Ms Fowler hit the child on her legs, causing her to curl up in a ball on her bed. Ms Fowler then hit her on her thigh.
[7] The children sustained localised redness, bruising and localised pain, causing them to cry.
1 Police v Fowler [2024] NZDC 19148 [Decision on appeal].
2 Crimes Act 1961, s 194(a). Maximum penalty two years’ imprisonment.
[8] Ms Fowler initially faced five charges for assaulting a child. However, on 25 June 2024, she pleaded guilty to three charges:
(a)one relating to the 6 June 2023 incident;
(b)one relating to an incident in 2021/2022 involving the same child, then aged eight; and
(c)one relating to an incident in 2021/2022 involving another child, then aged 10.
Evidence
[9] According to an affidavit sworn by Ms Fowler on 7 August 2024, Ms Fowler’s three children were uplifted by Oranga Tamariki by consent after the 6 June 2023 incident and were placed in the temporary care of Ms Fowler’s mother. The children returned to Ms Fowler’s full-time care in October 2023. Ms Fowler said there had been no reports of family harm since the children’s return.
[10] In the affidavit, Ms Fowler said she has attended multiple programmes and engaged with support services to upskill her parenting abilities and personal growth. Ms Fowler identified the specific courses which she attended.
[11] Ms Fowler said that, prior to the charges being laid, she was very involved with a school in the Bay of Plenty attended by her children and spent a lot of time volunteering at a charitable trust that teaches children about growing and preparing food. She was also very involved with school trips and other school activities.
[12] Ms Fowler said the charges had a severe impact on her ability to be involved with the children’s schooling because of a school policy that prevents / restricts people facing charges from being involved in school activities, and that she had to resign as president of the school parent teacher association.
[13] Ms Fowler also said the charges have affected her ability to support and advocate for whānau and her ability to obtain employment. She said she had applied
for a number of jobs since being charged but has been required to give consent for a police check when she advanced to the interview stage and that, where she has had an interview, she has not advanced beyond that stage. She considers it likely that the police check, which would have made reference to the charges, was the reason.
[14] Ms Fowler also said that, prior to the charges being laid, her children were happy and contented but that her daughter is now struggling with severe mental health and her boys with behavioural problems.
District Court decision
[15] On 13 August 2024, Ms Fowler appeared for sentence, having pleaded guilty to the three charges.3
[16] After outlining the relevant background, Judge Harding noted Ms Fowler had no previous convictions and that counsel for Ms Fowler had submitted that, in the circumstances, Ms Fowler ought to be discharged without conviction.4
[17] The Judge referred to Ms Fowler’s affidavit and noted that Ms Fowler had been involved with her children’s school and that she had previously spent significant time volunteering at a trust and with school activities.5 The Judge said Ms Fowler undertaking seven programmes reflected really well on her and he recognised that Ms Fowler’s passion was for helping whānau by offering support and advocacy and that she had not been able to do that since the allegations first surfaced.6 The Judge noted Ms Fowler had applied for a number of jobs but when she was required to give consent to a police check, that had effectively ended each prospect.7
[18] The Judge observed he could not discharge Ms Fowler without conviction unless he was satisfied that the direct and indirect consequences would be out of all proportion to the gravity of the offending.8 He said it was difficult to accept the
3 Decision on appeal, above n 1.
4 At [4].
5 At [6].
6 At [7].
7 At [7].
8 At [11].
submission from Ms Fowler’s counsel that the direct and indirect consequences of the conviction were significant and out of proportion to the gravity of the offending. The children’s school already knew of the charges and Ms Fowler had to disclose them in job applications. He noted a conviction was not going to change that and that the consequences would remain. A conviction would not materially increase the adverse consequences to Ms Fowler.9
[19] The Judge acknowledged that Ms Fowler was entitled to credit for the “quite significant steps” she had taken to try and make sure the offending would not reoccur.10
[20]The Judge concluded:
[16] I regret I do not consider that I can grant you a discharge without conviction because the impacts that have been occurring are occurring prior to conviction and the effects of the conviction will not be out of all proportion in my view.
[17] But I do not consider that any punitive result is required. I think a sentence of supervision for six months providing you with assistance and encouragement to continue with the good work that you are doing is all that is required.
[21] Accordingly, the Judge sentenced Ms Fowler to six months’ supervision, requiring her to take assessment, counselling, courses, treatment and training, if directed by her probation officer, noting none might be required given the steps Ms Fowler had already taken.11
Legal principles
[22] Under s 106 of the Sentencing Act, the Court has discretion to discharge an offender without conviction. However, the discretion must be exercised in accordance with s 107, which provides:
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.
9 At [13]–[14].
10 At [15].
11 At [18].
[23] An appeal against a refusal to grant a discharge without conviction is an appeal against both a conviction and sentence.12 An appeal must be allowed if the Court concludes that a “miscarriage of justice” has occurred,13 either because the District Court Judge made a material error in entering the conviction or because it erred in applying the principles for discharging a conviction under s 107.14 If the Court is satisfied that the District Court so erred, this Court must make its own assessment of the application’s merits.15
[24] The three-step process in considering an application for discharge without conviction is well-established.16 The first step involves considering the gravity of the offending. The second step is to examine the direct and indirect consequences of a conviction on the appellant. The third step is to determine whether those consequences would be out of all proportion to the offending.
[25] In assessing the gravity of the offence, the Court must take into account the aggravating and mitigating features of both the offending and the offender.17 The Court must also be satisfied that there is a “real and appreciable” risk that any given consequence of a conviction will happen.18
Submissions
Submissions for Ms Fowler
[26] Mr Howell, counsel for Ms Fowler, submits the Judge focused solely on consequences arising out of Ms Fowler having active charges and her disclosure of them. He says the Judge failed to consider that, once the charges had been resolved, there would be a change in the requirement to disclose active charges to the school and to potential employers as a part of job applications. Accordingly, there would be consequences associated with a conviction, distinct from the active charges. However, if there were no convictions, there would not be adverse consequences.
12 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8].
13 Criminal Procedure Act 2011, s 232(2).
14 Gaunt v Police [2017] NZCA 590 at [9]; and Jackson, above n 12, at [12].
15 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 14.
16 Ramirez-Alfonso v R [2024] NZCA 545 at [20].
17 At [27].
18 R v Taulapapa [2018] NZCA 414 at [22].
[27] Mr Howell notes Ms Fowler would have greater job prospects if she could say to a prospective employer that she has no convictions. He submits, therefore, that the Judge was wrong to suggest that there would be no appreciable difference in consequences on conviction because the charges were already known to the school and potential employers. Indeed, Mr Howell says Ms Fowler may apply to prospective employers where she did not apply at the time the charges were active. Such employers would have no knowledge of the charges and they would not have to be disclosed, but a conviction would be.
[28] Mr Howell submits the consequences of an inability to engage with the children’s school and the unlikelihood of gaining employment, when assessed against the gravity of the offending, mean that the consequences of a conviction are out of all proportion.
[29] In response to questions from the Court, Mr Howell acknowledged that there was no evidence before the Court that Ms Fowler had been denied an employment opportunity because of the charges or because of the convictions or the prospect of convictions. However, he submitted that such evidence was difficult to obtain and that the Court could take notice of the reality that convictions are or can be a barrier to employment. Mr Howell also referred to the stresses on Ms Fowler’s family as set out in Ms Fowler’s affidavit.
Submissions for the Crown
[30] Ms O’Brien, Crown counsel, submits the Judge did not err in declining Ms Fowler’s s 106 application. She says the consequences of conviction are not out of all proportion with the offending.
[31] Ms O’Brien submits the gravity of the offending is moderate. She accepts the offending is of a lesser overall seriousness. However, she notes an assault on a child is a serious offence and gives rise to legitimate community concerns. Ms O’Brien submits Ms Fowler’s offending is characterised by its span, occurring over a period of two to three years, coupled with the aggravating features of breach of trust and victim vulnerability.
[32] Ms O’Brien acknowledges Ms Fowler’s concern that a conviction may negatively affect her ability to secure employment involving children and families. However, she notes Ms Fowler has not supplied any evidence to support that submission nor to support the claim she has previously been employed in a role of that nature. While a conviction may act as a barrier to securing some types of employment directly involving children and families, Ms O’Brien submits Ms Fowler would still very likely be able to secure employment in an industry not directly related to the care of children and/or families. Ms O’Brien also notes that there is no evidence that Ms Fowler’s convictions or the prospect of conviction have been a barrier to employment.
[33] As regards the children’s school, Ms O’Brien submits the consequences outlined by Ms Fowler are unlikely to be changed should a discharge without conviction be granted. Similarly, she suggests any difficulties encountered by Ms Fowler in securing employment working directly with children and families would not be out of all proportion with the offending.
[34] Ms O’Brien refers to this Court’s decision in Pereira v Police, where an appeal against refusal to grant a discharge without conviction following a guilty plea on a charge for similar offending was declined.19
Analysis
[35] Having reviewed the affidavit filed by Ms Fowler, I am satisfied that the Judge took into account into account the evidence that was before him — which related only to the consequences of the charges that Ms Fowler then faced. There was no evidence of the likely consequences of conviction. For that reason, Mr Howell’s submission that the Judge failed to consider the consequences of conviction is unfounded and inconsistent with the evidence that was before the Judge.
[36] However, even if it is assumed that convictions would have the same or similar consequences, that does not establish that those consequences are out of proportion to the gravity of the offending. In reaching that conclusion, I have had particular regard
19 Pereira v Police [2019] NZHC 2130.
to the decision of Downs J in Pereira¸ which I consider is directly relevant to Ms Fowler’s appeal.
[37] In Pereira, a kindergarten teacher was charged with assault on a child after slapping her nine-year-old daughter across the face. The assault left no injury but upset the victim.20 The defendant was a first offender, who pleaded guilty promptly and completed courses and counselling. It was accepted that further offending was unlikely. It was also accepted that if the defendant remained convicted of assaulting a child, the Teaching Council was required to cancel her registration, which would mean she would lose her job and her future as a teacher would be in jeopardy.21 These consequences were apparently not known to the District Court Judge, who had not been satisfied of a real and appreciable risk the defendant would lose her teaching job at the kindergarten and had declined to discharge the defendant without conviction.22
[38] On appeal, Downs J noted that the offending involved the application of force to the head and a breach of trust and caused obvious distress.23 He also noted that it involved a momentary loss of control, possibly exacerbated by inadequate sleep and frustration, and left no physical injury. He assessed the gravity of the offending as between low and moderate.24
[39] The Judge accepted the defendant would lose her job if the appeal was not allowed and would likely suffer some financial hardship until she found other employment.25 He also accepted there was a risk a conviction would end her teaching career, unless an exemption were granted.26 Having discussed the process for and practice concerning the grant of exemptions, the Judge concluded that the defendant would be likely to obtain an exemption, but considered there was a real risk conviction may compromise her ability to obtain a teaching role and may also compromise her
20 At [1].
21 At [2]. Under s 28 of the Children’s Act 2014, a teacher cannot be employed in that capacity if they have a conviction for a specified offence, which includes assault on a child, unless granted an exemption.
22 Police v Pereira [2019] NZDC 11304 at [7].
23 Pereira v Police, above n 19, at [16].
24 At [18].
25 At [22].
26 At [23].
ability to obtain other employment of an attractive nature.27 Given these considerations and the financial implications of the defendant losing her kindergarten job, the Judge assessed the direct and indirect consequences of a conviction to be moderately serious.28
[40] Even so, the Judge did not consider that the consequences of conviction were out of proportion to the gravity of the offending.29 He said two considerations buttressed that conclusion. One was the need not to compromise the protection for children provided by the Children’s Act. The other was that, in Wilson v Police, Grice J had declined to discharge a teacher who twice assaulted his stepson.30 The Judge considered the offending in Pereira to be more serious than that in Wilson because it involved a blow to the face and noted that he would have discharged the defendant if she had slapped her daughter on the arm, leg or bottom.31
[41] I consider Ms Fowler’s offending to be of the same gravity as that in Pereira; that is, between low and moderate. While it did not involve a blow to the face, it involved three incidents and the use of an implement, a wooden spoon. It also involved a breach of trust and, probably, a loss of control, possibly exacerbated by frustration.
[42] The consequences of conviction, however, are far less serious for Ms Fowler than they were for the defendant in Pereira. The consequences as described in Ms Fowler’s affidavit are a curtailment of her ability to engage in voluntary activities at her children’s school and in support of her whānau, and an assumed curtailment of employment opportunities that require police checks.
[43] While I can take judicial notice of the fact that convictions can be an impediment to employment,32 particularly in certain industries, I cannot proceed on the basis that convictions would be a barrier to any job Ms Fowler might wish to undertake. In this regard, I note that Ms Fowler has not stated what jobs she has
27 At [25].
28 At [26].
29 At [27].
30 Wilson v Police [2019] NZHC 1252.
31 Pereira v Police, above n 19, at [28]–[30].
32 Evidence Act 2006, s 128.
applied for and what jobs she might want to apply for. Nor has she provided evidence to show that these opportunities would not be available if she were to explain to potential employers that, since the charges on which she was convicted arose, she has engaged in the various courses, for which her efforts were acknowledged by the Judge, and there have been no further incidents.
[44] I accept that Ms Fowler’s case does not give rise to the same statutory considerations regarding the protection of children as arose in Pereira and in Wilson. However, given that there is no evidence of a statutory barrier to Ms Fowler obtaining employment, that aspect is neutral.
[45] Overall, on the basis of the evidence, I consider the consequences of conviction for Ms Fowler to be low to moderate and, therefore, proportional to the gravity of the offending. It follows that I am not satisfied that the consequences of Ms Fowler’s convictions are out of all proportion to the gravity of the offending.
[46] Accordingly, I am satisfied no miscarriage of justice occurred and that the Judge did not err in declining Ms Fowler’s application for a discharge without conviction.
Result
[47] I dismiss Ms Fowler’s appeal against Judge Harding’s refusal to grant a discharge without conviction.
G J van Bohemen J
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