Gaunt v Police
[2017] NZCA 590
•13 December 2017 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA568/2016 [2017] NZCA 590 |
| BETWEEN | JAMIN GAUNT |
| AND | NEW ZEALAND POLICE |
| Court: | Brown, Courtney and Toogood JJ |
Counsel: | J P Miller for Appellant |
Judgment: (On the papers) | 13 December 2017 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe conviction on the charge of common assault is quashed.
CThe appellant is discharged without conviction under s 106 of the Sentencing Act 2002.
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REASONS OF THE COURT
(Given by Toogood J)
Introduction
On 6 July 2016 the appellant, Jamin Gaunt, was convicted in the District Court at Wellington of one charge of common assault for spitting.[1] In a Judge-alone trial before Judge Thorburn, Mr Gaunt also faced two charges of male assaults female arising out of the same incident with the same complainant, with whom Mr Gaunt was in a relationship at the time. Those two charges were dismissed by Judge Thorburn on the basis of self-defence.[2] However, the Judge did not accept Mr Gaunt’s explanation that the spitting was also used as self-defence when normal physical attempts had not deterred the complainant from attacking him, and accordingly found him guilty of the common assault charge.[3]
[1]Crimes Act 1961, s 196.
[2]New Zealand Police v Gaunt [2016] NZDC 14604 at [36]–[38].
[3]At [39].
Counsel for Mr Gaunt made an oral application for a discharge without conviction under s 106 of the Sentencing Act 2002. Judge Thorburn declined the application without giving reasons, and convicted and sentenced Mr Gaunt to come up if called upon within 12 months.
He appealed his conviction and sentence to the High Court on the basis that the Judge should have granted a discharge or at least a further written opportunity to do so. Cull J dismissed the appeal on 20 October 2016.[4]
[4]Gaunt v New Zealand Police [2016] NZHC 2505.
Leave to bring a second appeal was granted by this Court on 12 May 2017.[5] The basis of the grant of leave is whether a miscarriage of justice occurred as a result of:[6]
(a)the Judge failing to take account of the complainant’s act in spitting at Mr Gaunt in assessing the gravity of the offending;
(b)the Judge failing to take account of Mr Gaunt’s difficult personal circumstances in assessing the effect of conviction on his employment prospects; and
(c)the effect of these two factors in the proportionality assessment under s 107 of the Sentencing Act.
The facts
[5]Gaunt v New Zealand Police [2017] NZCA 178.
[6]At [3].
The facts are conveniently summarised in Cull J’s judgment:[7]
[4] On 20 January 2016, Mr Gaunt was at home with his then partner, Ms Livingston and their one year old daughter. It was not a happy evening. At about 10.00 pm, a verbal argument took place between Mr Gaunt and Ms Livingston over his family’s disapproval of their relationship. The argument led to physical assaults, as a consequence of which, Mr Gaunt was charged with assaulting Ms Livingston by throwing her against a wall, back-handing her across her face and spitting in her face. …
[5] Mr Gaunt pleaded not guilty to all three charges and the matter came before Judge Thorburn, as a Judge-alone defended hearing. In his oral judgment, Judge Thorburn described the nature of the allegations and counter‑allegations from each of Mr Gaunt and Ms Livingston. Mr Gaunt was described as angry, ripping down curtains and advancing towards Ms Livingston. Ms Livingston kept trying to push him away and he threw her up against the wall with her left shoulder hitting the wall. Mr Gaunt spat in Ms Livingston’s face and Ms Livingston responded similarly. Ms Livingston alleged that Mr Gaunt hit her across the face a number of times with the back of his hand and Mr Gaunt alleged that Ms Livingston threw a piece of the vacuum cleaner at him and that Ms Livingston came at him again and again kicking and punching him.
The lower courts’ judgments
[7]Gaunt v New Zealand Police, above n 4.
In accepting a plausible narrative for self-defence for the two male assaults female charges, Judge Thorburn made the following findings:[8]
[35] I strongly suspect that she gave as much as she got in this particular incident. I strongly suspect that. Another reason why I say that is that she spat at him. Spitting is pathetic. It is traffic and her justification for that had a certain hollowness to it against some of the other ring of truth aspects of her evidence … . She suggested that she spat at him in order to protect herself from him. I have never heard of a case in which spitting is anything other than a horrible, demeaning, derogatory act. And he spat at her so she spat at him and so I am not really that convicted that her evidence takes me to the place of confidence beyond reasonable doubt over his.
[8]New Zealand Police v Gaunt, above n 2.
Nevertheless, in finding Mr Gaunt guilty of the common assault charge for spitting, Judge Thorburn held:
[39] Spitting, however, I just do not accept what either of them say about the spitting as being a justifiable thing. That is just a disgusting, disgraceful, aggressive act and it has got nothing to do with defending each other. It is just vitriolic and about as low as it goes and clearly he spat at her. He admits that. He has got an explanation for it. His explanation I do not accept. I am not going any further into that so I find him guilty of assault by spitting.
On appeal Cull J recognised that, in response to the oral application for a discharge without conviction, Judge Thorburn did not consider either ss 106 or 107 and that those had to be assessed on appeal.[9] The Judge acknowledged that the offending is at the lowest level of assault and was minor, and that there would be potential impact on his future employment as a result of conviction. However, overall, the impact on Mr Gaunt’s employment prospects was not serious enough to be out of all proportion to the gravity of the offending.[10]
The appeal
[9]Gaunt v New Zealand Police, above n 4, at [19].
[10]At [38]–[41].
The principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction, or alternatively a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.[11] The relevant parts of the sections read:
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.
(2) A discharge under this section is deemed to be an acquittal.
....
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]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
The test for a discharge without conviction under the Sentencing Act requires an evaluative judgment and is not a matter of discretion.[12] The ordinary principles governing general appeals therefore apply and this Court must reach its own conclusion on the merits.[13]
[12]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]–[13].
[13]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
Mr Miller for Mr Gaunt submits that a miscarriage of justice occurred because the lower courts: failed to take into account the conduct of the complainant as a mitigating factor towards gravity assessment; took into account the assault happening within a domestic setting as an aggravating factor; and, misapplied the test concerning the likelihood of a risk to employment materialising under the proportionality assessment. The Crown’s position is that Cull J correctly weighed all of the relevant factors and rightly determined a conviction would not be all out of proportion to the gravity of the offending.
Discussion
Judge Thorburn’s finding that the two charges of male assaults female were committed in self-defence justifies his conclusion that the dispute between Mr Gaunt and Ms Livingston involved a physical altercation to which Ms Livingston contributed, including by spitting. There was an element of provocation in her actions. Ms Livingston’s behaviour does not excuse Mr Gaunt’s offending, but they were equally culpable in the overall context of the altercation, and there does not appear to have been any evidence explaining why Ms Livingston was not also charged. Ms Livingston’s contribution to the altercation is a mitigating factor to be taken into account, reducing the overall gravity of the offending.[14] We consider that insufficient weight was given to that element in the courts below.
[14]Sentencing Act 2002, s 9(2)(c).
We acknowledge Judge Thorburn’s revulsion about spitting, but it is evident from his descriptive language that the Judge overstated the gravity of the offending. We are satisfied that the common assault was at the very lowest level of seriousness and that, in the particular circumstances, it barely warranted the intervention of the criminal law.
We are also satisfied that the consequences of a conviction would not be insignificant for Mr Gaunt. Cull J accepted that a conviction, albeit a minor one, could have an impact on Mr Gaunt’s future employment prospects but was not satisfied that it will prevent him from gaining employment.[15] We consider, with respect, that the Judge misstated the test. It would be unrealistic not to recognise that a conviction for common assault, which carries a maximum penalty of one year’s imprisonment, would have an inhibiting effect on Mr Gaunt’s employment prospects. Answering truthfully the commonly asked question of whether he had any criminal convictions would immediately place him at a disadvantage. If given the opportunity to do so, he would be required to explain that the conviction was for spitting at his partner in the course of a domestic dispute. That is not likely to be seen as a positive quality in the assessment of Mr Gaunt as a prospective employee.
[15]Gaunt v New Zealand Police, above n 4, at [34].
There is nothing novel about these propositions. It is well-recognised that the black mark of a conviction alone is a significant consequence on an otherwise clean record,[16] especially for a young person who does not yet have a foothold in a career.[17] Mr Gaunt is a 22 year old father with an otherwise clean record. He has expressed his remorse and acknowledged he needs to be a better father and role model to his daughter. We consider that a conviction would have a detrimental impact on his ability and opportunity to do so.
[16]DC (CA47/2013) v R [2013] NZCA 255 at [44].
[17]Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [22].
Moreover, Mr Gaunt suffers from severe hearing loss and wears hearing aids on both ears. His hearing difficulties were a contributory factor to his receiving a limited education. He has struggled to find employment, occasionally finding work in manual occupations. Evidently this disability negatively affects his employment prospects, without the added difficulty of a conviction for very minor offending.
We are therefore wholly satisfied that the consequences of a conviction for Mr Gaunt would be out of all proportion to the gravity of the offence.
Conclusion
We are satisfied that the lower courts erred:
(a)in assessing the gravity of the offending by failing to take into account Ms Livingston’s conduct in the domestic dispute;
(b)in not placing sufficient weight on the inhibiting consequences of a conviction on his employment prospects, particularly when coupled with Mr Gaunt’s existing hearing difficulties; and
(c)in concluding that the consequences of a conviction would not be out of all proportion to the gravity of the offence.
Accordingly, a miscarriage of justice has occurred as a result of these errors.
Result
The appeal is allowed.
The conviction on the charge of common assault is quashed.
Mr Gaunt is discharged without conviction under s 106 of the Sentencing Act.
Solicitors:
Crown Law Office, Wellington for Respondent
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