Gaunt v Police
[2016] NZHC 2505
•20 October 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2016-485-61 [2016] NZHC 2505
JAMIN GAUNT
v
NEW ZEALAND POLICE
Hearing: 4 October 2016 Appearances:
J P Miller for the Appellant
M L Wong for the RespondentJudgment:
20 October 2016
JUDGMENT OF CULL J
Introduction
[1] Mr Gaunt is a 22 year old father who was found guilty of one charge of common assault, namely spitting, under s 196 of the Crimes Act 1961. The charge arose from an incident in a domestic dispute between Mr Gaunt and his then partner, Ms Livingston. Following a Police response, Mr Gaunt was charged with two charges of male assaults female and the charge of common assault by spitting, all arising out of the same incident.
[2] After a Judge-alone trial on 6 July 2016, Mr Gaunt was acquitted of the two male assaults female charges and convicted of common assault by spitting.
[3] Mr Gaunt sought to apply for a discharge without conviction. Following the announcement of the verdicts, Mr Gaunt applied for a discharge without conviction, pursuant to s 106 of the Sentencing Act 2002. The application was declined and
Mr Gaunt was convicted and sentenced to come up, if called upon, within 12
JAMIN GAUNT v NEW ZEALAND POLICE [2016] NZHC 2505 [20 October 2016]
months. Mr Gaunt now appeals against the refusal to grant a discharge without conviction.
Facts
[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. He was charged with two charges of male assaults female, contrary to s 194(b) of the Crimes Act and one charge of common assault by spitting, contrary to s 196 of the Crimes Act. The latter offence carries a maximum penalty of one year’s imprisonment.
[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.
[6] In summation, the Judge accepted that Mr Gaunt acted in self-defence, in relation to the two charges of male assaults female. He said:
[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 tragic 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 convinced that her evidence takes me to the place of confidence beyond reasonable doubt over his.
[36] So, I do accept a plausible narrative is raised in respect of self defence. …
[7] However, the Judge returned to consider spitting in his concluding remarks of his judgment. In rejecting Mr Gaunt’s explanation for it, the Judge found him guilty of assault by spitting.
[39] Spitting, however, I just do not accept what either of them say about the spitting being a justifiable thing. That is just a disgusting, disgraceful, aggressive act and it has not 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. On his explanation I do not accept. I am not going any further into that so I find him guilty of assault by spitting.
[8] At the close of the oral judgment, Mr Miller, Counsel for Mr Gaunt made an application for a discharge without conviction under s 106 Sentencing Act. This was an oral application, following the Judge’s verdict on the charges. The Judge declined the application, convicted Mr Gaunt of common assault by spitting and ordered him to come up for sentence if called upon within 12 months.
Mr Gaunt’s personal circumstances
[9] Mr Gaunt has been affected by severe hearing loss, which has required him to wear hearing aids on both ears. This has had an impact on his ability to distinguish voices against background noise and has been a contributory factor in his receiving limited education. At the age of 22, he has struggled to find employment, finding occasional work in manual occupations. He is currently unemployed and lives at home with his parents.
[10] He has separated from his partner Ms Livingston, who has the care of their one year old daughter, with whom he is only allowed supervised contact. Ms Livingston will not consent to unsupervised contact. Currently, Ms Livingston is seeking a protection order through the Family Court, as a result of the circumstances surrounding these criminal proceedings.
[11] Mr Gaunt has no previous convictions. He filed an affidavit, in which he stated his intention is for a career in the retail industry. He expressed his concern
that his hearing difficulties as well as a conviction will make future employment difficult.
[12] He confirmed that he and Ms Livingston are currently contesting both the protection order and parenting orders in the Family Court and a conviction for assault will have an adverse effect on him.
[13] He conceded that he should have handled the incident better and was remorseful for spitting on Ms Livingston, agreeing with the Judge who called it disgusting. He conceded it should never have happened and he was trying to be better, so he could be a good father and role model for his daughter.
Legal framework
[14] Sections 229 and 244 of the Criminal Procedure Act 2011 confer on a convicted person the right to appeal against their conviction and sentence, respectively. A refusal to grant a discharge without conviction is a decision both as to conviction and as to sentence.
[15] Section 106(1) of the Sentencing Act 2002 allows for a person found guilty of an offence to be discharged without conviction. Section 107 provides the following guidance:
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.
[16] The Court of Appeal stated in R v Hughes that the test under s 107 of the
Sentencing Act requires an evaluative judgment, and is not a matter of discretion.1
Accordingly, the ordinary principles governing general appeals will apply, as prescribed in Austin, Nichols & Co Inc v Stichting Lodestar.2 The Court must come
to its own conclusion on the merits.
1 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]. This view was confirmed in Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12]-[13].
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
[17] Thus, this Court must apply the analysis required by s 107. In R v Hughes, the Court of Appeal established a three step test that is helpful when applying s 107:3
(a) first, the court must assess the gravity of the offending;
(b)second, the court must assess the direct and indirect consequences of the conviction; and
(c) third, the court must determine whether the consequences are out of all proportion with the gravity of the offending.
[18] In the first step, the court should take into account all aggravating and mitigating factors of both the offending and the offender.4 This must be weighed against all the likely consequences of a conviction.
[19] In delivering his oral judgment, the Judge delivered the verdicts at the end of the defended hearing and entered the conviction for common assault by spitting and the sentence at the time. The Judge did not consider either of ss 106 or 107, so it is necessary on appeal to decide whether the threshold in s 107 has been met, before turning to s 106 and the question of whether a discharge without conviction should be granted.
The gravity of the offending
[20] Mr Gaunt submits that in terms of the aggravating factors under s 9 of the Sentencing Act, the spitting assault did not involve actual physical damage or harm and should be considered at the lower end of what constitutes an assault. There was nothing premeditated about it, as it occurred in the midst of verbal and physical
altercation between the parties.
3 R v Hughes, above n 1 at [22].
4 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
[21] In mitigation of the offending, Mr Gaunt submits that the gravity in this case is reduced by:
(a) The conduct of the victim.5
(b) Any remorse shown by the offender.6
(c) Evidence of Mr Gaunt’s previous good character.7
[22] Mr Gaunt submits, and it is accepted by the Crown, that spitting is at the low end of what constitutes an assault. The Crown tempers that concession by reference to the Judge’s observation that the spitting was a “disgusting, disgraceful and aggressive act”.
[23] Mr Gaunt submits that the offending is mitigated by the conduct of the complainant in this case, because the Judge found that Ms Livingston, “gave as much as she got”. The Crown’s response is that it would be inappropriate to take this into account, because on the evidence it is not clear what the extent of provocation was. The Crown submits that the complainant’s conduct should not be taken into account in mitigation.
[24] Mr Gaunt further submits that his previous good character and evidence of remorse should be taken into account in mitigation. The Crown does not agree that there is genuine remorse, pointing to the fact of Mr Gaunt’s not-guilty plea.
[25] Mr Gaunt was acquitted on the other two charges of male assaults female because the evidence did not satisfy the judge that they were committed, other than in self-defence. The Judge found it was possible that the complainant was equally an aggressor. However, from the Judge’s findings it is clear that the spitting occurred in the midst of a violent altercation between Mr Gaunt and Ms Livingston,
in which Ms Livingston sustained injuries.
5 S 9(2)(c) of the Sentencing Act.
6 S 10 - s9(2)(f) of the Sentencing Act.
7 S 9(2)(g) of the Sentencing Act.
[26] I am satisfied that this is a low level assault, which is mitigated by Mr Gaunt’s previous good character. It makes the offence a very minor one. I cannot accept the Crown’s submission that Mr Gaunt’s apparent remorse for this offending is undermined by the fact he maintained his not guilty plea in respect of this charge. Mr Gaunt was entitled to contest the other charges and he was successful in defending them. He has expressed his remorse and acknowledged that the incident should never have happened. Further, he expressed his wish to be better so he can be a good father and role model for his daughter.
[27] The fact that the complainant had engaged in the same conduct, namely, spitting on Mr Gaunt and was not charged, although seemingly unfair, does not excuse the offending.8 That said, the offending, being the lowest level of assault, is minor.
Consequences of a conviction
[28] The consequences that Mr Gaunt submits will follow from a conviction are:
(a) It would be a further barrier to employment, where Mr Gaunt already faces difficulties as a result of his limited employment history and his hearing disability; and
(b)It may impact adversely on proceedings in the Family Court between Mr Gaunt and Ms Livingston regarding a protection order and a parenting order.
[29] Mr Miller, counsel for Mr Gaunt cites Taavili v Police and Nash v Police as examples of a discharge without conviction being granted on a single assault charge, on the basis of its impact generally on future employment.9 In Taavili, the appellant was involved in a very minor way in a fairly serious assault of a cousin. At the time, the appellant was studying for a qualification that would allow her to apply for more senior administrator roles, which the court accepted would be jeopardised by her
having a conviction. The appellant was the main breadwinner for her family.
8 S 9(2)(c) of the Sentencing Act.
9 Taavili v Police [2012] NZHC 2323; Nash v Police HC Wellington CRI-2009-485-7, 22 May
2009.
[30] In Nash, the appellant had assaulted his partner in a minor way, by pulling her hair and grabbing her leg. The Judge accepted that there was a variety of general consequences for the appellant that would make a conviction disproportionate to the offending. The consequences included a risk that the appellant would not be accepted as a member of the Registered Master Builders Association and his future employment prospects and any future travel plans would suffer.
[31] The Crown here accepts that a conviction would be a black mark on Mr Gaunt’s record, which could adversely affect his employment prospects. However, the Crown submits that although the conviction may be relevant to employment in the security or retail industries, an assessment of its importance should be left to a prospective employer.10
[32] Secondly, the Crown submits that, as the facts of the altercation will be before the Family Court in any event, a conviction is unlikely to have a significant impact.
[33] I accept the Crown’s submission that a conviction is unlikely to make any difference to Mr Gaunt’s position in the Family Court proceedings, because the details of the altercation will almost certainly be before the court. Any altercation between Mr Gaunt and Ms Livingston is germane to the orders that the court may make, and it is important that the information is before it.
[34] I also accept that a conviction, albeit a minor one, could have an impact on Mr Gaunt’s future employment prospects, but I am not satisfied that it will prevent him from gaining employment. An assessment of its relevance will be made by a prospective employer and the minor nature of the offending and the minimal penalty imposed, reinforce the lack of gravity of the offending.
Are the consequences of a conviction out of all proportion to the gravity of the offending?
[35] Having found that the nature of the offending is minor and that there is a
potential risk to Mr Gaunt’s future employment prospects, the Court must now
10 The Crown cites Maraj v Police [2016] NZCA 279 and Roberts v Police (1989) 5 CRNZ 34 (HC).
determine whether those consequences would be out of all proportion to the gravity of the offending.
[36] The Court of Appeal in Blythe v R accepted that a conviction would be a black mark on Mr Blythe’s lengthy and otherwise untarnished, indeed exemplary, police record.11 Even so, because it was a serious incident of assault with which Mr Blythe was charged, the Court did not consider the s 107 test was met.
[37] In my view, there are two factors which I consider do not render the consequences out of all proportion to the gravity of the offending. They are:
(a) The entering of the conviction with no other penalty, marks the
Court’s disapproval of the conduct, but no more.
(b)This incident arose out of a domestic dispute and such conduct should not be condoned.
[38] I am not satisfied that the consequences of a conviction are out of all proportion to the offence itself, even though it is a minor offence.
[39] In relation to Mr Gaunt’s concern that his partner will use the assault conviction to obtain a protection order, the Family Court will have the details of the altercation between the parties and be able to observe that only one of the parties was charged in these circumstances.
[40] Further, it will not escape the attention of a prospective employer, that Mr Gaunt has a conviction only, with no other penalty, which in itself, emphasises the minor nature of the offending.
[41] Consideration of general sentencing factors in this case does not alter my view that the entering of a conviction with no other penalty, other than being sentenced if called upon within 12 months, was appropriate in these circumstances. I note also, that for every person who has a criminal conviction, the same potential
black mark on an employment record would apply. It does not follow that a
11 Blythe v R, above n 1.
discharge without conviction must be granted to anyone with employment prospects, on that ground alone.
Conclusion
[42] The appeal is dismissed.
Solicitors:
John Miller Law for the Appellant
Crown Law for the Respondent
Cull J
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