Gilliland v Police

[2019] NZHC 289

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-386

[2019] NZHC 289

BETWEEN

JAMES GILLILAND

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 February 2019
Counsel:	M Dyrhberg QC and K Martellic for Appellant R McCoubrey and H Savage for Respondent
Judgment:	28 February 2019

JUDGMENT OF CHURCHMAN J

[1]    The appellant, Mr James Gilliland, pleaded guilty in the Auckland District Court to one charge of injuring with reckless disregard.1   Following a hearing on    17 October 2018, Mr Gilliland’s application for discharge without conviction under  s 106 of the Sentencing Act 2002 (the Act) was declined by Judge Jelas.2 He was convicted and sentenced to 200 hours’ community work by Judge Field.

[2]    Mr Gilliland appeals his conviction and sentence on the basis that Judge Jelas erred in her assessment of whether the consequences of a conviction would be out of all proportion to the gravity of the offending. Ms Dyrhberg QC, on his behalf, submits the gravity of his offending was low and the consequences on him for travel and employment are out of all proportion to his offending.

1      Crimes Act 1961, s 189(2); maximum penalty five year’s imprisonment.

2      Police v Gilliland [2018] NZDC 22323.

GILLILAND v NEW ZEALAND POLICE [2019] NZHC 289 [28 February 2019]

[3]    The Crown opposes the appeal, submitting that the Judge did not err in her assessment of the s 106 application and her refusal to grant a discharge without conviction did not result in a miscarriage of justice.

Approach on appeal

[4]    An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.3 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:4

(a)by virtue of a material error by the sentencing judge in entering a conviction; or

(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Act.

Background

[5]    On the morning of 9 May 2018, Mr Gilliland was standing at the intersection of Ponsonby Road and Picton Street, waiting to cross Picton Street from south to north. The complainant was in her car, waiting at a red traffic light to turn left from Picton Street onto Ponsonby Road. There was a queue of vehicles behind her.

[6]    The traffic lights, along with the light for the pedestrian crossing, turned green at the same time. As she was unable to turn left, the complainant drove her vehicle forward slightly, to allow the queue of vehicles behind her to pass while still giving way to pedestrians.

[7]    Mr Gilliland approached the complainant’s vehicle, kicking the front passenger door. When the complainant asked why he had done that, he replied that there were pedestrians crossing.

3      Jackson v R [2016] NZCA 627 at [6]-[16].

4 At [12].

[8]    Once the pedestrians had finished crossing, the complainant turned left and parked her vehicle close to the intersection. She got out to check if there was any damage.

[9]    Mr Gilliland was still standing at the intersection. The complainant told him that she was only moving forward to allow the traffic behind her to pass. As she was speaking to him, Mr Gilliland came towards her, put both his hands on her shoulders and pushed her over.

[10]   Due to the force of the push, the complainant fell backwards onto the concrete footpath, landing on her right wrist. She broke her right wrist in four places.

[11]   After pushing the complainant, Mr Gilliland ran off and was caught a short distance away by members of the public who had witnessed the incident. I note that, in his statements to the Police and Dr Joseph, the appellant claimed he “walked” away. Those statements are inconsistent with the other evidence and with the contents of the agreed statement of facts which records him as having run away, and I therefore do not accept them. It is also clear that he showed no concern for the victim whom he would have observed to have fallen heavily onto the concrete footpath as a direct result of his actions. He made no attempt to render any form of assistance.

District Court decision

[12]   The Judge noted that the complainant’s injury was serious and the offending affected her greatly.5 While Mr Gilliland submitted that he had acted out of a genuine concern for pedestrian safety, having himself suffered a significant accident while riding his bicycle in 2016, the Judge did not consider his heightened sensitivity to driver error to be of any significant relevance.6 She determined, rather, that “the more likely explanation for the offending was Mr Gilliland’s aggressive demeanour at the time”.7

[13]The Judge stated:

5      Police v Gilliland, above n 2 at [12].

6      At [13]-[15].

7 At [19].

[20] The Court cannot lose sight of the fact that at the time of the offence, the victim was not driving her car, there had been no driver error, she had provided a reasonable explanation to Mr Gilliland for why she had driven her vehicle forward and Mr Gilliland’s response was to push the victim to the ground. His actions were entirely unprovoked.

[14]   The Judge did not find Mr Gilliland’s submissions that he did not intend to hurt the victim to be relevant as intention to harm is not an element of this offence, nor did she accept his submission that the consequential harm to the victim was disproportionate to the force applied.8

[15]   The Judge did, however, state that the assessment of gravity requires consideration of other factors beyond the direct circumstances of the offence itself, noting Mr Gilliland’s age, his lack of previous criminal history, his early acceptable of responsibility and his remorse.9

[16]In terms of the gravity of the offending, the Judge concluded:

[28] I have concluded the gravity of the offending is moderately serious, having regard to all factors discussed in the paragraphs above. This was an unprovoked aggressive response resulting in a serious injury to the victim. While the defendant has taken full responsibility for his actions, is in the process of examining contributing factors to the offending and is deeply remorseful for his acts, that does not, in my view, reduce the offending to such a level that it can be described as “low-level”.

[17]As to the consequences of a conviction, the Judge said:

[45]      From the information filed, I conclude the consequences of a conviction for Mr Gilliland will be that, at some future date, he will need to seek a visa to travel and the outcome of that process will be unknown until the result is received. However, I do not anticipate Mr Gilliland will be barred from entry to all countries.

[46]      Mr Gilliland may also be disadvantaged with future job applications but again I do not accept the opportunities for advancement will be prohibited by a conviction.

[18]   The Judge determined that the consequences of the conviction were not out of proportion to the gravity of the offending and the test set out in s 107 had not been satisfied.10

8      At [21]-[22].

9 At [23].

10 At [50].

Appellant’s contentions

[19]   In both her written and oral submissions, Ms Dyrhberg developed at length a submission as to why it was alleged Judge Jelas was wrong to conclude that the offence was moderately serious. A principal plank of the argument was that:

Mr Gilliland’s actions brought about a consequence disproportionate to the force applied, and the facts clearly disclose and [sic] element of misfortune for all involved … It is submitted that serious injuries were at the very outer limit of what could have been reasonably anticipated.

[20]   Further examples of this submission were: “… the remoteness of the consequence must tend to lower the sense in which Mr Gilliland is ultimately blameworthy.” And: “… it will be highly unusual that a push, however forceful, will bring about such a serious result as occurred in this case.”

[21]These submissions are wholly unrealistic.

[22]   As Judge Jelas correctly noted, the Courts regularly have to deal with situations where someone pushed over on a concrete surface has sustained serious physical injuries as a result.

[23]   Far from it being “highly unusual” that a push of this nature would cause serious injury, the appellant is fortunate that even more serious injuries were not caused. Had the victim not been able to break her fall by putting her arm out, it is entirely possible that her head may have struck the concrete footpath first with dire consequences. To suggest that the injuries that were sustained “were at the very outer limit of what could have been reasonably anticipated” is untenable.

[24]   There were other aspects of the submissions made on behalf of the appellant where the facts were presented in a way that was unrealistic. The written submissions included a passage which said:

There is no reason to doubt that the catalysing incident was borne of genuine concern for the pedestrians crossing Ponsonby Road, however misguided. The phasing of the lights brings left turning traffic into the path of foot-traffic, and it could have been reasonably misunderstood that [the complainant] had not seen the pedestrians and was accelerating towards them.

[25]   The notion that the complainant was “accelerating” towards anyone is fanciful. The appellant himself acknowledged in his affirmation of 10 December 2018 that the complainant was “creeping forward”. The Judge said:11

There is no suggestion in the summary that, at any stage, the victim drove her vehicle in a manner that breached any road rule. Neither is there a suggestion that any pedestrian was in danger or that any pedestrian was concerned by the victim’s acts.

[26]Those observations were fully justified.

[27]   Counsel for the appellant submitted that the Judge had misunderstood the submission made to her about the effect of the appellant’s “Traumatic Reactivity Condition”.

[28]   Judge Jelas has specifically rejected this matter as being of “any significant relevance to the gravity assessment.”12 She went on to set out a number of reasons for that conclusion.

[29]Ms Dyrhberg’s written submissions said:

While the evidence does not go as far as to establish a causative nexus between Mr Gilliland’s condition and his offending, it can fairly be inferred that, in some measure, there is likely to have been a mediating relationship between the condition and his behaviour.

[30]   The submission goes on to explain that the word “mediating” is synonymous with the concept of “caused by”. The submission specifically states:

The Court of Appeal has accepted where offending is mediated (cf. caused by) a mental health condition, this will imply a lesser graduation of culpability that is appropriately reflected in a credit against sentence.

[31]   In implying that there was such a condition here, counsel goes further than the psychiatrist Dr Joseph did in his report.

[32]Judge Jelas accurately stated:

11     Police v Gilliland, above n 2 at [7].

12 At [15].

[18] Dr Joseph does not identify any singular cause for Mr Gilliland’s offending. While Mr Gilliland’s heightened sensitivity to driver error is noted, other financial and relationship stresses were also listed in the report. From my reading of Dr Joseph’s report, it was not Dr Joseph’s intention to suggest the cause of the offending was due to Mr Gilliland’s perception of driver error. Dr Joseph had merely recorded in his report the explanation Mr Gilliland provided to him.

[33]   Counsel submitted: “As to the causation nexus, Mr Gilliland did not submit that the “traumatic reactivity” caused his offending, but rather that it was a contributory factor”.

[34]   As Judge Jelas noted, it is difficult to ascribe sensitivity to driver error as being a contributing factor in his case given that there was no driver error. Nor, on any objective basis, any reasonable grounds for assuming driver error.

[35]   In any event, while it is possible to understand why a misguided apprehension of danger to pedestrians might have been a contributory factor to the appellant kicking the complainant’s vehicle, it is much less obvious how that could still be said to be an operative factor once there was clearly no longer any potential danger to a pedestrian, the complainant being out on the footpath inspecting her parked vehicle for damage.

[36]   I am unable to identify any error made by Judge in not accepting the submission that heightened sensitivity to driver errors was a contributing factor to the actual assault.

[37]   On the question of the gravity of the offending, the written submissions of counsel stated: “Finally, there is no sense in which Mr Gilliland is a person disposed to aggression or “road-rage”, or that he poses a risk to others”.

[38]This submission contradicts the appellant’s own statements.

[39]In his affirmation of 10 October 2018, the appellant says:

However, I have found myself aggravated by traffic many times. On the day before the accident, I had to dodge heavy traffic on Newtown Road to sidestep around a large truck that had stopped in the middle of the pedestrian crossing at the lights. I managed to stay calm during this encounter but I think it added to my aggravated disposition on the day of the offending.

[40]   In the same affirmation, the appellant notes that when the complainant explained why she had moved forward slightly at the intersection, this “angered [him] further”.

[41]   The report from Dr Joseph tabled in support of the appeal also confirmed that the appellant is indeed someone who is disposed to aggression and becomes enraged by perceived traffic offences. The relevant passage in the report says:

People who commit traffic mistakes easily annoy him. He has bought a dash cam and has sent recordings of bad driving to the police. He has also used his phone to make recordings. He has honked at the offenders and has got into confrontation a few times.

[42]   Therefore, I cannot accept the submission that “there is no sense in which   Mr Gilliland is a person disposed to aggression or ‘road rage’”. It follows that I can also not accept the submission that the appellant “is not a person who requires specific deterrence to avoid confrontations in future”.

Relevant law

[43]   Section 106 of the Act provides that if a person who is charged with an offence is found 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”.

[44]The application of s 106 is guided by s 107 which provides as follows:

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.

[45]   As stated by the Court of Appeal in R v Hughes, s 107 “provides a gateway through which any discharge without conviction must pass”.13 The Court noted that such an appeal is not an appeal against the discretion of the Court:14

13     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].

14     At [11] (citation omitted).

[11]  The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles. The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.

[46]   The approach to be adopted by an appeal court in relation to s 107 has been summarised as:15

[28]  An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.

[47]More recently, the Court of Appeal, speaking of the s 107 test, said:16

[11]  It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identification of the direct and indirect consequences of conviction; and

(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.

[48]   In terms of the gravity of the offence, the Court of Appeal has summarised the correct approach to take as follows:17

15     Denden v Police [2014] NZHC 1814 (citations omitted).

16     Prasad v R [2018] NZCA 537 (citations omitted).

17     Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citation omitted).

[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[49]   When considering the direct and indirect consequences of conviction on a defendant, the Court of Appeal stated that:18

The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.

[50]The Court of Appeal recently confirmed in R v Smyth that: 19

[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.

[51]   Once the Court is satisfied the disproportionality test has been met pursuant to s 107, it may then determine whether to order the discharge.20

Gravity of the offending

Factors relating to the offending

[52]   The Crown submits the aggravating factors of the offending are the push to the shoulders (with two hands) and the injuries to the victim. Further aggravating features are said to be Mr Gilliland’s behaviour in kicking the complainant’s car and the injury to the complainant.

[53]   Ms Dyrhberg, for Mr Gilliland, submits that the assault lacked any intent to hurt or cause a fall, implying a lesser degree of recklessness in relation to the downstream consequences of applying force. In Hepi v Police, which concerned a charge of wounding with reckless disregard, Brewer J recognised an obvious

18     DC (CA47/2013) v R [2013] NZCA 255 at [43] (citation omitted).

19     R v Smyth [2017] NZCA 530.

20     Z (CA447/12) v R, above n 17 at [21]; R v Hughes, above n 13 at [8]-[12].

correlation between the degree of recklessness involved and the culpability of the offender:21

The gravamen of a charge of wounding with reckless disregard to the safety of others is that the offender must be taken to have had an actual and conscious appreciation of the danger of her actions to the safety of others and with that actual and conscious appreciation proceeded with her actions regardless of the risk to the safety of others. Therefore, I have to approach this appeal on the basis that the appellant did not have an actual intention to wound her partner.

[54]   As noted above, Ms Dyrhberg submits that Mr Gilliland’s actions brought about a consequence disproportionate to the force applied and the remoteness of this consequence should lower the extent to which he is held to be blameworthy.

[55]   For the reasons set out in [19]-[23] above, I do not accept this submission. The consequence of Mr Gilliland’s actions  was not remote.  The force of the push by   Mr Gilliland caused the victim to fall. He pushed her with both hands. It is almost inevitable that pushing someone over this way on a hard surface will result in them putting their hand out to break the fall, thus causing an injury of precisely this nature.

Factors relating to the offender

[56]   Ms Dyrhberg submits that the mitigating factors personal to Mr Gilliland are as follows:

(a)he pleaded guilty at an early opportunity, having already made admissions to the police;22

(b)he expressed remorse in his affirmation, explaining that he wanted to apologise to the complainant in person but understood that she did not want to participate in restorative justice, and his remorse was accepted by the Judge;23

21     Hepi v Police [2013] NZHC 2690 at [12].

22     Sentencing Act, s 9(2)(b).

23     Section 9(2)(f).

(c)he was the victim of a serious accident while riding his bike to work in 2016, sustaining broken teeth, grazing, a laceration to his lip, and bruising;24

(d)he has no previous convictions and has tendered several references attesting to his character;25

(e)he has engaged a counsellor to help him confront the trauma from his previous accident and to develop strategies to cope with stress in future;26

(f)he is at low risk of re-offending;27

(g)due to the complainant’s occupation, the media seized on this case, notwithstanding that the offending itself was ultimately unremarkable and entirely unrelated to her occupation, and this media coverage has been an adverse consequence.28

[57]   The Crown, while acknowledging that Mr Gilliland is remorseful, of previous good character, has accepted responsibility and engaged in counselling, submits that when the offending is considered as a whole, the Judge was correct to conclude that his personal circumstances did not reduce the offending to a low level, particularly given the injury caused. This was still moderately serious offending that involved an unprovoked and forceful push and aggressive behaviour.

Conclusion on gravity of offending

[58]   Ms Dyrhberg further submits that the modest penalty of 200 hours’ community work is also a factor indicating a low level of culpability, demonstrating that Judge Jelas, in describing the offending as “moderately serious”, overstated the gravity of the offending. She brings to the Court’s attention a number of cases in which s 106

24     Sections 9(2)(e) and/or 9(4).

25     Section 9(2)(g).

26     Section 10(1)(c).

27     Section 9(4).

28     Section 9(4).

orders have been made out in what she submits are significantly more serious cases.29 However, those cases are highly fact dependent and, while discharge without conviction may have been warranted in those cases, it does not follow that should be the case here.

[59]   During her oral submissions, Ms Dyrhberg referred extensively to the case of R v Taulapapa.30 In particular, it was submitted that this case was authority for the proposition that even when a charge is very serious (Ms Taulapapa pleaded guilty to charges of burglary and kidnapping), the Court was still able to consider a discharge without conviction. As a general proposition, that is undoubtedly correct.31

[60]   But even though the charges in Taulapapa were serious, it was the actual part played by the defendant that was critical. The defendant was described in the judgment as being an 18-year-old who was immature for her age and who was the “dupe” of the principal offender. The Court of Appeal said that “her culpability was much lower than the convictions alone would suggest”.32

[61]   In addition to the defendant’s youth, her immaturity, and her peculiar susceptibility to direction and control by the principal offender, there were also “cultural influences” identified by both the High Court and Court of Appeal which impacted directly on the question of culpability. The Court also held that there was no need for denunciation and deterrence given the particular features of this case.33

[62]   Beyond confirming that the seriousness of a charge is not, of itself, a bar to the application of s 106, the decision in Taulapapa is of little assistance in the present case because most of the features that the Court in that case found to be significant are absent in the present case.

29     Curtis v Police HC Auckland CRI-2009-404-23, 2 June 2009; McDonnell v Police [2012] NZHC 2480; Puriri v Police [2018] NZHC 1682.

30     R v Taulapapa [2018] NZCA 414.

31     See, for example, Curtis v Police, above n 29; Haukinima v Police HC Auckland CRI-2006-404- 344, 11 July 2007; Manning v Police HC Christchurch CRI-2006-409-202, 29 November 2006.

32 Above n 30 at [59].

33 At [32].

[63]   It is my view that the consequences of his actions in pushing the complainant cannot be said to be remote but were, rather, almost inevitable. This was an unprovoked assault on a woman nearly twice the appellant’s age which caused her serious injury. The fact that he may have a heightened sensitivity to traffic offending in no way mitigates his offending as she had not committed any driving error. While it is to Mr Gilliland’s credit that he accepted responsibility for his offending, pleading early, expressing remorse and engaging in counselling, I share the Judge’s view that this was, nevertheless, moderately serious offending

Consequences of a conviction

[64]   Randerson J in Iosefa v Police described the correct approach to assessing the consequences of conviction as follows:34

[I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.

[65]He continued:35

However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence.

[66]   Ms Dyrhberg points to  two  real  and  appreciable  indirect  consequences  Mr Gilliland will face as a result of a conviction:

(a)that he will be prejudiced in travelling for the purposes of his current employment; and

(b)that he will be prejudiced when attempting to transition into future positions of employment.

34     Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; affirmed in DC v R

[2013] NZCA 255 at [43].

35 At [35].

[67]   The Crown, however, submits that Mr Gilliland will not be prevented from travelling for work and, in any event, his work or travel plans are largely speculative. Further, it is submitted a conviction will not be a bar to future employment or career prospects. While it is accepted there may be additional difficulties in travelling or future employment, the Crown submits that these are natural and ordinary consequences anyone would expect to flow from this type of offending.

Ability to travel

[68]   Mr Gilliland currently works as a software developer for Gentrack, a large, international IT company. Gentrack maintains offices in Australia, Singapore and England, with employees frequently taking up overseas postings to assist with the expansion of the business. Mr Gilliland also sub-contracts for Vospertron and has previously worked for them on projects in Dubai and Australia. In 2019, Mr Gilliland will be required to travel to Qatar and India for Vospertron.

[69]   Ms Dyrhberg submits that information technology is an internationally orientated industry in which overseas briefs are commonplace and Mr Gilliland has expressed a future ambition to develop his skills by seeking employment in a country with a strong software development industry such as Canada, the USA or Germany.

[70]   In assessing the consequences of conviction on a person’s ability to travel, the courts generally require detailed and reliable evidence of:36

(a)a requirement to disclose the conviction but (assuming the discharge is given) not the fact of the offending;

(b)being inadmissible to the jurisdiction as a result of the conviction and how long for; and

(c)the lack of any alternative entry processes or, if alternatives exist, why such processes would be unreasonable, difficult and uncertain.

36     Edwards v R [2015] NZCA 583 at [26].

[71]   A discharge will not ordinarily be appropriate for speculative travel plans, with the Court in Brunton v Police noting:37

The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often been seen as a universal consequence, and unless real evidence can be shown that a conviction would impede entry into another country, such speculative consequences will not form the basis for a discharge without conviction.

[72]   Ms Dyrhberg points to a number of cases in which discharges without convictions were granted on the basis of risks to travel prospects.38    She briefed    Ms Cottrell, a barrister and solicitor practicing in immigration law, who provided an affidavit outlining the effect a conviction would have on Mr Gilliland’s ability to travel freely for vocational purposes. In her affidavit, Ms Cottrell explains that, generally, entry of a conviction will mean that Mr Gilliland will need to apply for visas to countries that he can currently travel to without a visa on a reciprocal waiver scheme. She concluded that “the likely consequences of a conviction will be ongoing and significant”, with Mr Gilliland required to declare his conviction in some instances. She stated that he would likely be ineligible to apply for a visa to some countries and would need to make an application for a waiver of the character requirements, a process which is complicated and time consuming, with no guarantee that a visa would be granted.

[73]   The Crown accepts that Mr Gilliland will likely be required to travel to Qatar and India for his employment with Vospertron but states that a conviction will not prevent him from travelling to these jurisdictions for short periods of time. As the Judge noted, the appellant can:

(a)travel to Qatar for up to 30 days without a visa; and

(b)travel to India with an E-visa for up to 60 days without providing a police certificate.

37     Brunton v Police [2012] NZHC 1197 at [16].

38 Vela v R [2010] NZCA 440; Merrie v Ministry of Economic Development HC Rotorua CRI-2006- 470-22, 25 September 2006; T v Police [2012] NZHC 1426; Boonen v Police HC Wellington CRI- 2003-485-41, 14 October 2003; Evans v Police HC Wellington CRI-2009-485-97, 6 November 2009.

[74]   As to Mr Gilliland wanting to travel for work with Gentrack, the Crown submits this is largely speculative. Although he is encouraged to work overseas, there is no set plan or requirement for him to do so. The length of any travel is also uncertain, making it difficult to determine whether the appellant would have to apply for a visa in any event. The Crown emphasises there is no risk to Mr Gilliland’s current employment with Gentrack and that he has not travelled overseas for this job to date. In terms of future employment, the Crown submits that the Judge was right to conclude that such benefits are general and apply to all persons who work and travel offshore. There is nothing to suggest Mr Gilliland requires overseas experience or that he will lose out on employment without it.

[75]   In any event, the Crown submits that a conviction is not an absolute impediment to Mr Gilliland’s travel as he will still be able to apply for visas and/or character waivers, with immigration officials being appropriately placed to determine such applications. In Banerjee v Police, Palmer J commented:39

The immigration authorities are able to assess the offending for what it is, with reference to Judge Manuel’s comments, and now mine, about its relative lack of seriousness. Accordingly, I do not consider the conviction itself has had, or has, a consequence out of proportion to the offending.

[76]   The Crown submits that, here, the sentence of 200 hours’ community work will provide an effective signal that Mr Gilliland’s offending was not at the highest level of seriousness.

[77]   Ms Dyrhberg, however, submits there is an inherent risk that a conviction for injuring with reckless disregard would likely adversely bear on the exercise of discretion. Injuring is an intrinsically serious offence and the conviction would also be relatively fresh, the passage of time not yet having had the potential effect of softening the effect of its entry. Although the Crown has submitted that it is unlikely that Mr Gilliland would be denied entry, and it is accepted that the Court is entitled to weigh the likelihood of an adverse consequence occurring, the overarching question is submitted to be whether an adverse consequence is a “real and appreciable risk”, not whether there is a possibility of a favourable outcome. Visa applications will

39     Banerjee v Police [2018] NZHC 2446 at [29].

involve Mr Gilliland in protracted and potentially expensive processes with no guarantee of outcome, creating intolerable uncertainty for Mr Gilliland and his employers, both future and prospective, meaning that working overseas would become practically and commercially unviable. This could put a strain on Mr Gilliland’s employment arrangements.

Future employment prospects and career

[78]   Ms Dyrhberg submits there is an inherent risk Mr Gilliland will be seriously disadvantaged in future employment with a conviction. The Judge accepted a conviction would create a disadvantage for him but noted he has current work experience, supportive employers and prospects for advancement.40 Ms Dyrhberg submits, however, that Mr Gilliland has been studying for a long time and only recently took up employment in his chosen field. It is unlikely that any prospective employer will attempt to go behind the fact of the conviction and to understand the facts underpinning the offending. Even if the opportunity to explain is given, there is always a risk that the explanation will be treated as self-serving and suspect. As the Court of Appeal noted in Brown v R, it is unrealistic to expect prospective employers to have the time or inclination to embark on nuanced analyses of the culpability of past offending.41

[79]   The Crown accepts there are general consequences to career opportunities in having a conviction. Although Mr Gilliland will be applying for employment in competition with others who do not have a conviction, he has current work experience (spanning past the date of his conviction) and supportive employers which will be relevant to any future employer’s decision. It is submitted that these circumstances make it less likely Mr Gilliland will be ruled out of future employment without consideration of his merits and previous good character, and the likelihood of there being a real and appreciable risk to his future career opportunities is minimised as a result. To the extent there is still a risk present in future employment, the Crown submits this is also an ordinary consequence of his conviction.

40 Above n 2 at [44].

41     Brown v R [2012] NZCA 197 at [31]-[32].

Conclusion on consequences of a conviction

[80]   It is my view that there is a real and appreciable risk that G’s ability to travel will be compromised by this conviction. It is true that he will not necessarily be prevented from travelling to all countries, but he is likely to encounter difficulties in getting permission to enter a not insignificant number of countries. For a person in his particular line of work, this is likely to limit his opportunities for professional advancement. That his work currently involves some travel cannot be said to be speculative, given his plans this year to go to India and Qatar. That he may, nevertheless, still be able to travel to these specific countries despite his conviction is a matter of luck. Future travel of a similar nature might require that he visit countries with stricter entry requirements.

[81]   As to his career, I again find there is a real risk that his prospects will be affected. While he is currently in employment in his chosen field and his employers remain supportive, should Mr Gilliland at some point in the future wish to apply for a position with another company, he may be required to disclose any previous convictions. There is an appreciable risk that an employer, particularly in a profession where applicants having a conviction history will be a rarity, will be reluctant to take on an employee with a criminal conviction.   When combined with the fact that     Mr Gilliland will potentially face difficulties in travelling, there is a possibility that any employer in his industry will think twice before employing him.

Proportionality

[82]   Ms Dyrhberg submits that the real and appreciable consequences attendant on conviction would be out of all proportion to the gravity of the offending. In substance, an isolated mistake, leading to what she submits can fairly be described as a “freak accident”, could significantly jeopardise the future prospects of an otherwise decent young man. The offending is not of a nature that legitimately inspires public concern and there is no sense in which Mr Gilliland requires specific deterrence. There is no public or private utility in entering a conviction and to do so could be positively retrograde.

[83]   The Crown submits that it is not enough that the consequence of a conviction outweighs the gravity of the offending. Significantly more is required. The consequence must be out of all proportion to the gravity of the offending before the Court has jurisdiction to grant a discharge without conviction.42 The consequences of a conviction for Mr Gilliland, it is submitted, are not out of all proportion to the gravity of his offending. While it is acknowledged that a conviction may well have some negative consequence for him, these consequences are not extraordinary, and there is nothing unique about his circumstances that would justify a discharge without conviction.

[84]   As I concluded above, there is an appreciable risk that a conviction of this nature will negatively impact on Mr Gilliland’s future career prospects, both in terms of the difficulties he may face in travelling and a likely reluctance on the part of employers to take on someone with a criminal conviction.

[85]   However, s 107 requires the Court to undertake a balancing exercise. This is where the categorisation of the gravity of the offending as to whether it is moderately serious as the Judge found, or “low level” as submitted by the appellant, is of critical significance. For the reasons set out above, I am satisfied that Judge Jelas did not make an error in categorising the offence as moderately serious.

[86]   Turning to whether the Judge erred in finding that the consequences of a conviction for Mr Gilliland would be out of all proportion to the gravity of the offending, the consequences principally relied upon, namely the effect on possible future employment, and on work and recreational travel, could be said to be ordinary consequences of a conviction for this type of offending.

[87]   As the Court of Appeal said in Taulapapa: “[T]he ordinary consequence of conviction are [sic] unlikely to be out of all proportion to the gravity of a young person’s offending”.43

42     R v Smyth, above n 19 at [12].

43 Above n 30 at [38].

[88]   Unlike the defendant in Taulapapa who had not yet obtained educational qualifications or employment in any particular field of endeavour, Mr Gilliland has obtained qualifications in his chosen field and is already in employment. He is fortunate to have the support of both his employers, and there is no suggestion that the consequences of the conviction mean that he is likely to lose his employment.

[89]   For some countries, Mr Gilliland will now need to go through the time- consuming process of applying for a visa and, for other countries, will have to apply for a visa if he wishes to undertake a lengthy stay in those countries. This will undoubtedly be inconvenient for him and possibly for his employers, too. It is also possible that, when assessing the visa application, some countries may make an adverse decision  as  to  his  character.  However,  in  respect  of  such  a  process,  Mr Gilliland will be able to utilise the decisions of both the District Court and the High Court in this matter to assist in placing the offence in perspective. It is also noted that for countries such as the United States, even if there was a discharge without conviction, Mr Gilliland would be obliged to disclose his arrest.

[90]   While the appellant’s actions can properly be described as an isolated event, I do not accept the characterisation urged upon me that they were a “freak accident”. The injuries sustained by the complainant were a readily foreseeable result of her being pushed backwards on both shoulders by a young man half her age.

[91]   Overall, I am not satisfied that Judge Jelas made any error in concluding that the consequences of a conviction were not out of all proportion to the gravity of offending.

Conclusion

[92]For the reasons given above, this appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor, Auckland for Respondent cc  M Dyrhberg QC