Fulop v Police
[2021] NZHC 707
•31 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000512
[2021] NZHC 707
BETWEEN CSILLA NIKOLETT FULOP
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 March 2021 Appearances:
N Silich for the Appellant
O Klinkum for the Respondent
Judgment:
31 March 2021
JUDGMENT OF HINTON J
This judgment was delivered by me on 31 March 2021 at 3:00 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
Westside Chambers, Auckland Meredith Connell, Auckland
FULOP v NEW ZEALAND POLICE [2021] NZHC 707 [31 March 2021]
Introduction
[1] Csilla Fulop appeals convictions for one charge of assault on a person in a family relationship1 and one charge of wilful damage.2 Ms Fulop sought a discharge without conviction pursuant to sections 106 and 107 of the Sentencing Act 2002 (the Act). Judge Pidwell declined the application and sentenced Ms Fulop to six months’ supervision with a condition that she complete a parenting course.3
[2] Ms Fulop appeals the refusal to grant a discharge without conviction on the grounds that the Judge did not give sufficient credit for the rehabilitative steps taken by her when assessing the gravity of the offending and that the Judge erred when she decided the consequences of conviction were speculative.
[3] Ms Klinkum, counsel for the Crown, submits the appeal should be dismissed as there were no errors in the Judge’s assessment of the gravity of the offending, nor in weighing the consequences of conviction. Ms Klinkum submits the consequences asserted by Ms Fulop are speculative and not out of all proportion to the gravity of the offending.
Facts
[4] The offending occurred on 6 October 2019, shortly after Ms Fulop had turned 26.
[5] Ms Fulop and the complainant were in a defacto relationship and living together with their four-month-old baby. They had a heated verbal argument when Ms Fulop discovered the complainant was having an affair. Ms Fulop began to physically assault the complainant by punching and head-butting his head and kneeing him in the groin. The complainant tried to lock himself in the bathroom to get away from her. She got into the bathroom and continued to assault him in the same manner. He then attempted to leave the address in his car. Ms Fulop hit him in the head and groin and jumped onto the back of the car so that he could not leave. The complainant
1 Crimes Act 1961, s 194A; maximum penalty of two years imprisonment.
2 Summary Offences Act 1981, s 11(1)(a); maximum penalty of three months imprisonment or fine not exceeding $2,000.
3 Police v Fulop [2020] NZDC 23212.
went back inside the house. Ms Fulop picked up the complainant’s phone and broke it in half. The complainant suffered a bleeding nose, bruising, and swelling across his nose as a result of the assault.
Law
[6] Section 106 of the Act provides that a court may discharge an offender without conviction. Under s 107, the discretion is to be exercised only if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending”.
[7] This requires the Court to engage in a three-step proportionality assessment as set out by the Court of Appeal in Z (CA447/2012) v R:4
(a)the Judge must identify the gravity of the offending, including the aggravating and mitigating factors of the offending and the offender; and
(b)the Judge must identify the direct and indirect consequences of a conviction for the offender; and
(c)the Judge must consider whether those consequences are out of all proportion to the gravity of the offending.
[8] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.5 The appellant must establish either that a miscarriage of justice has occurred by virtue of a material error by the Judge entering a conviction or that the Judge erred in applying the principles of s 107 of the Act.
[9] The proportionality assessment is a matter of judicial evaluation rather than the exercise of a discretion. Therefore, the appeal proceeds by way of general appeal.6
4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142, at [27]-[28].
5 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144, at [12].
6 H (CA680/11) v R [2012] NZCA 198, at [30].
Sentencing in District Court
[10] In the District Court the Judge found that the gravity of the offending was at the mid to low end of the scale. In reaching this conclusion, the Judge disagreed with defence counsel’s suggestion that the offending was at the low end. She stated:7
“Low-end offending in my view is a single act, which does not cause injury. The offending, to the contrary, was sustained, it took a period of time, it did not stop at the first bout of anger. It continued within the home and outside and it was serious. It was punches to head, it was more than one punch to head. It was kneeing and headbutting as well as punches, together with breaking a phone, which is often a way of exerting power and control over a person.”
[11] In her assessment of the gravity, the Judge took into account the fact that Ms Fulop had completed the Women’s Stopping Violence programme and a parenting though separation course to address the causes of her violent outburst.
[12] Ms Fulop had sworn an affidavit saying that a conviction of this nature could be a bar to employment as a jewellery appraiser or at the least cost her an opportunity when up against another suitably qualified candidate. She said Police clearance is required for this type of work. She provided proof of her qualification from a jewellery institute and referred to having worked for Stewart Dawson and for Dollar Dealers, but she did not provide any evidence from employers as to how the conviction would impact her employment prospects. The Judge found that the risk was too speculative to satisfy her it was real and appreciable. The Judge further held that even if it were a real risk, it would not be out of all proportion to the gravity of the offending.
New affidavit by ex-employer
[13] At the hearing of this appeal Mr Silich for the appellant sought leave to adduce a further affidavit, this time by Ms Katrina Brown, the manager of Dollar Dealers in Avondale. Dollar Dealers employed Ms Fulop as a jewellery sales assistant for 12 months. Ms Brown says jewellery work requires a certain amount of trust; the character of an employee is an important consideration when employing someone in this field; and that generally a person with a criminal conviction of any type is not considered a suitable candidate.
7 Police v Fulop, above n 3, at [5].
Discussion
[14] I consider first the argument that the Judge erred by not giving sufficient credit for the rehabilitative steps Ms Fulop had taken, when assessing the gravity of the offending. Mr Silich cites Delaney v Police, submitting that “gravity of the offence” includes “guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will re-offend, the victim’s perspective, and any consequence already suffered by way of reparation, community work or publicity.”8 He submits that the significant steps, including attending programmes and workshops and reconciling with the complainant, taken by Ms Fulop to ameliorate the harm caused by her offending, should have placed the gravity of the offending into the lower end of the scale.
[15] Ms Klinkum says that the rehabilitative steps taken by Ms Fulop were taken into account by the Judge in assessing the broader circumstances of the offending, but that the Judge did not consider these steps reduced the offending to the lower end of the scale. Ms Klinkum submits that in isolation the offending was correctly viewed by the Judge as being of moderate gravity, brought down after rehabilitative steps to low to mid-range offending.
[16] The broader circumstances, including the completion of Stopping Violence programmes, the complainant’s views, and the counselling Ms Fulop and the complainant have completed together, reduce the gravity of the offending. However, I agree with the Judge that given the sustained nature of the offending and the injuries suffered by the complainant, the overall assessment is at the low to mid end of scale. The Judge did factor in the broader circumstances and did not err in her assessment of the gravity of the offending.
[17] I turn to the second appeal point: that the Judge erred in deciding the employment-related consequences of Ms Fulop’s conviction were ‘speculative’. Mr Silich relies on the affidavit evidence of both Ms Fulop and Ms Brown.
8 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29].
[18] Ms Klinkum submits that an applicant for a discharge without conviction must ordinarily point to a circumstance tending to establish that the consequence will happen9 and Ms Fulop’s affidavit does not go that far. Ms Klinkum submits Ms Brown’s affidavit is not cogent and should not be allowed into evidence but that it also does not go far enough. She submits further that while background checks and security may be important to prospective employers of Ms Fulop, she is not charged with a dishonesty offence. Therefore the conviction will likely be of less relevance.
[19] Ms Fulop does not have to prove the asserted consequences (i.e. loss of career as a jewellery appraiser) will happen, but she must present evidence or supporting material to establish there is a real and appreciable risk the conviction will impact her employment in the way she argues.10
[20] I would be prepared to err in favour of Ms Fulop and take into account Ms Brown’s affidavit, but I would still not be satisfied that the conviction would rule out Ms Fulop’s employment as a jewellery appraiser. What might be the general position is not enough. Ms Brown does not say for example that as a result of this conviction she would not re-employ Ms Fulop. Nor would I consider that likely to be the case. The particular conviction has no connection to any dishonesty and is on the face of it a one-off offence of jealous rage by a no doubt exhausted mother of a new- born.
[21] In any event I also agree with the Judge that, even if Ms Fulop could not now obtain employment as a jewellery appraiser, I would not consider that to be a consequence out of all proportion to the gravity of the offending. There would be no reason or insufficient reason to conclude that Ms Fulop could not obtain employment in related or other fields given her age, qualification and work experience.
9 R v Taulapapa [2018] NZCA 414, at [45].
10 Adamson v Police [2015] NZHC 2031, at [28].
Conclusion
[22] While I have sympathy for Ms Fulop her case does not fall within the very limited circumstances in which a discharge can be granted. For the reasons outlined above, the appeal is dismissed.
Hinton J
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