Graham v Police

[2013] NZHC 2575

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-83 [2013] NZHC 2575

BETWEEN

MICHAEL JOHN GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	30 September 2013
Counsel:	A J McKenzie for appellant C E Butchard for respondent
Judgment:	3 October 2013

RESERVED JUDGMENT OF DOBSON J

Introduction

[1] This is an appeal against a refusal by the District Court to discharge the appellant (Mr Graham) without conviction, in relation to a charge of assault to which he had pleaded guilty.

Background

[2] On 21 December 2012, staff Christmas functions were held at the Tai Tapu Golf Club near Christchurch for the employees of at least two separate businesses. It seems that all involved had enjoyed a barbecue and some alcohol, and then played golf. The complainant in this matter was in a group of five including Mr Graham, and was treated by the District Court Judge as being in somewhat higher spirits than the others. He was not playing golf in the usual way and was making jokes. As Mr Graham was preparing to tee off at one of the holes, the complainant kicked an over-sized plastic ball that acted as a tee marker some distance off the tee. Others in the group urged him to retrieve the tee marker and put it back.  As he moved past

GRAHAM v NEW ZEALAND POLICE [2013] NZHC 2575 [3 October 2013]

Mr Graham, Mr Graham landed what eye witnesses described as a “solid and hefty kick” onto the complainant’s bottom. The two were not work mates, and had not met before this incident.

[3] The complainant collapsed on the ground, apparently in considerable pain. Those present appear to have treated it as a continuation of his joking behaviour, but it became apparent that he was genuinely hurt. The complainant was taken to hospital by ambulance where he was diagnosed as having a large haematoma in his scrotum that was considered dangerous. It required emergency surgery that lasted some three hours. The complainant’s victim impact statement, prepared six months after the assault, records that he remained extremely angry, having suffered disfigurement, excruciating lower abdominal pain, and mental anguish.

[4]   Mr Graham subsequently pleaded guilty to a charge of assault, and applied for a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act). That application was the  subject of  a number of calls in the District Court at Christchurch. On 16 August 2013, it was called before Judge Garland who indicated that  more  information  would  be  required  to  assess  the  merits  of  Mr Graham’s

application. On that occasion, in the context of the nature of further information that was likely to be helpful, the Judge observed:[1]

Like I said if the victim was just simply fooling around, making a fool of himself and being a nuisance to everybody and your client simply intervened but regrettably not intending to harm him the blow with the foot did harm him so that was an accident in that sense then I think that the application has got a lot more going for it.

[1] Transcript of legal discussion, 16 August 2013 at 5.

[5]   The  matter  was  adjourned  until  20 August  2013,  and  in  the  meantime Mr McKenzie arranged further affidavits from eye witnesses, and progressed the extent of reparation that Mr Graham was prepared to offer from that which he volunteered from the outset.

[6]    On 20 August 2013, the matter was dealt with by Judge A A Couch.  In light of all the information then available, the Judge treated the case as “well up the scale of an assault under s 196 Crimes Act”.  The Judge had regard to the eye witnesses

describing the assault as a solid and hefty kick, and that it was a direct kick aimed at the mid section of the complainant from the rear. The Judge found an inevitable inference that Mr Graham intended to do harm to the complainant because the kick was of considerable force so that it could not have been delivered expecting there to be no harm. The Judge took into account that the kick was from behind and that Mr Graham was reckless as to the extent of injury that he caused.

[7] Mr Graham raised three potentially adverse matters as consequences of the conviction that would make it disproportionately severe for him. First, that he wanted to apply for a licence to handle explosives as a component of his winter work as a member of a ski patrol. Mr Graham treated making application for such a licence as futile until he had waited out a “stand down period” of three years after the conviction. It appears that Mr Graham has worked as a member of the ski patrol, without such a licence, for a number of years.

[8]  Secondly, Mr Graham raised an aspiration to travel to Canada to work.  He was concerned that the existence of a conviction for assault would harm his chances of obtaining a Canadian work visa.

[9] Thirdly, Mr Graham was concerned that, to obtain summer work  as  a plasterer, he would be required to disclose the conviction and it would make it materially more difficult to get such employment. Mr McKenzie cited a policy of Fletchers EQR, as the dominant employer of plasterers in the Christchurch area, of not employing tradesmen with such convictions.

[10] Judge Couch assessed each of these concerns, but did not see any of them as creating a decisive disadvantage that rendered a conviction disproportionately severe for Mr Graham. As to the impediment to obtaining an explosives licence from the Environmental Protection Agency, the Judge was not persuaded that a conviction for assault would be fatal, although accepting that it would be significantly more difficult. The Judge observed that Mr Graham had worked for the ski patrol for a number of years without such a licence, and there was nothing in the evidence that stated he would not be able to continue such work if he did not get one.

[11] As to the impediments to obtaining a work visa for Canada, the Judge had recently had occasion to consider that topic in another case. He observed that he had been provided with substantially  more  information  in  that  other  case  than  in Mr Graham’s, which left the Judge with the view that whilst it would make an application for a work visa more difficult, it did not necessarily prevent him being granted one. Further, the information sought on such an application would require Mr Graham to disclose the charge against him, and the circumstances in which he had obtained a discharge in any event. Given that the immigration officials would be

appraised of his having pleaded guilty to an assault and then being discharged by a New Zealand court, the Judge observed:[2]

I suggest that the Canadian authorities are more likely to be concerned with the substance of the defendant’s actions rather than the view taken of them by a judge in a foreign jurisdiction.

[2] Transcript of hearing, 20 August 2013 at 9.

[12]  In addition, the Judge treated this concern as largely speculative as there was no evidence that Mr Graham had firm plans to seek work in Canada, or offers of work in that country.

[13] As to the difficulties in obtaining summer work as a plasterer, the Judge was not persuaded that the level of difficulty described would definitely bar Mr Graham from such employment.

[14] Accordingly, the Judge’s overall assessment was that the adverse consequences were not sufficiently disproportionate to warrant a discharge without conviction. A conviction was duly entered, with an order made for reparation for emotional harm of $1,000, which was the sum that Mr Graham had volunteered.

Grounds of appeal

[15] Mr McKenzie’s first ground of  appeal was  that  Judge  Garland  had  been seized of the application for a  discharge sufficiently to require that that Judge complete the task. Mr McKenzie treated the indication from Judge Garland that I have quoted in [4] above as indicating a view as to the outcome, conditional on appropriate evidence being before the Court.   Evidence as postulated by Judge

Garland was provided, but did not avail Mr Graham when considered by Judge Couch.

[16]  There is nothing in this point.  Judge Garland had agreed to a request by Mr McKenzie that the matter be put back before the Court in five days’ time, and that must have occurred implicitly on the basis that the judge rostered to preside over such matters on 20 August 2013 would deal with it. No objection was taken before Judge Couch on 20 August. There is no basis, either in the provisions regulating the criminal jurisdiction of the District Court, or as a matter of fairness in determining such matters, that a judge, once seized of a provisional assessment of such an application, need see it through to its conclusion.

[17] The second criticism raised was that Judge Couch failed to have regard to all the matters that are relevant in considering the relative seriousness of the offending as a component of the evaluative assessment under ss 106 and 107 of the Act. Judge Couch had only considered the relative seriousness of the offending in ranking that offending, without taking into account mitigating circumstances that were personal to Mr Graham.

[18] Mr McKenzie submitted that the relative gravity of the offence could not be adequately assessed without taking into account mitigating factors, which he listed as follows:

guilty plea at first reasonable opportunity;

Mr Graham’s otherwise good character as evidenced by the absence of previous convictions or any diversion;

his  willingness  to  enter  into  restorative  justice  processes  and  make reparation to the victim;

genuine remorse and concern for the victim as evidenced by his making enquiries as to his recovery;

Mr Graham’s co-operation throughout with the Police.

[19] The Court of Appeal has recently confirmed that all relevant aggravating and mitigating factors relating to both the offending, and the offender, are to be taken into account when forming a view about the relative gravity of the offence.[3]

[3] Z v R [2012] NZCA 599 at [27]. Explicitly adopted more recently in DC v R [2013] NZCA 255 at [34]–[35].

[20] Ms Butchard cited the Court of Appeal’s most recent confirmation of this approach in DC v R. Mr McKenzie sought to align the analysis undertaken in that successful appeal, of the totality of circumstances going to the gravity of the offending, with an analysis of Mr Graham’s offending and his position as an offender in the present case.

[21] In DC v R, a man who had for a substantial period been a solo father of two boys was initially charged with four counts of assaulting a child, two counts of assault with a weapon, one count of sexual violation by unlawful sexual connection and one count of an indecent act on a child. The complainants were the two sons who were both under 12 years old at the time of the alleged offences. Mr DC pleaded not guilty, and at his District Court trial both boys either recanted on their allegations or accepted innocent explanations of events in relation to all counts other than the defendant smacking them on the bottom for the purposes of correction. Mr DC was discharged at that point on six of the eight counts, and pleaded guilty to representative counts of assault on the basis that they were confined to smacking on the boys’ bottoms for the purposes of correction. The District Court Judge had declined to discharge Mr DC under s 106 of the Act. Mr DC appealed successfully to the Court of Appeal.

[22] In that case, the nature of assaults admitted was confined to what had been a lawful, and arguably common, parenting practice until June 2007. The Court of Appeal found that the Judge had erred materially in his evaluation of the gravity of the offending and had also under-estimated the adverse consequences of a conviction where Mr DC suffered real consequences in his employment as a contracted IT specialist.  Taking all those factors into account, the Court of Appeal found that the

consequences of a conviction were out of all proportion to the gravity of the offending. Given the trauma and disruption caused to Mr DC’s family life, the Court of Appeal accepted a submission that Mr DC had already paid a disproportionate personal price for his offending. The convictions were accordingly quashed and a discharge without conviction was ordered.

Analysis

[23] Judge  Couch’s analysis did not include any  evaluation of the  mitigating factors, including those I have listed in [18] above. In that regard, the analysis of the relative gravity of the offending was incomplete when compared with the process directed by the Court of Appeal. It is therefore appropriate to undertake the analysis afresh.

[24] Where a group of social golfers are skylarking after drinking alcohol at a Christmas function, one participant making a nuisance of himself in a way that distracted others attempting to play golf might reasonably expect to be shoved or slapped or kicked lightly, in light-hearted chiding for being a nuisance. However, there could be no case for assaulting such a person to an extent that required emergency surgery. I concur with the sentencing Judge that Mr Graham must be taken to have known that the level of force used in his kick raised, at the very least, a risk of more than momentary pain.

[25] I therefore reject Mr McKenzie’s submission that the offending should be likened to cases of motor manslaughter, where the tragic outcome is unrelated to the level of culpability in a driver’s momentary act of unintended negligence, which causes the death of another person. This was an intentional assault and should not be treated as materially less serious because the consequences may have been greater than Mr Graham intended. All those using force against others must take their victims as they find them. The offending therefore constituted a moderately serious assault.

[26]  Mr Graham  is  entitled  to  credit  for  the  mitigating  factors  raised  by Mr McKenzie. He is to be treated as a first offender who indicated his preparedness to plead guilty at the first opportunity, and took initiatives such as assessing the level

of reparation payment he should offer as being appropriate to the circumstances. In combination, those mitigating circumstances do reduce the level of seriousness overall that is to be attributed to it. Clearly, there would not have been a basis for an application for a discharge had Mr Graham sought to defend the charge, and had been unrepentant about the harm he had caused to the victim.

[27]  In terms of the adverse consequences, Mr McKenzie’s submissions criticised the Judge for dismissing the concerns Mr Graham raised when the relevant disadvantages were not made out in an absolute sense: that is, the Judge would only have recognised a disadvantage as sufficient if there was an absolute ban on obtaining a work visa for Canada, or an absolute ban on his working as a member of a ski patrol in any form.

[28] The reality is that the disadvantages created are, on each concern raised, a matter of degree. It is consistent with the approach adopted by the Court of Appeal in DC v R to recognise a greater difficulty in getting a work visa for Canada with a conviction, than if discharged.  So, too, that the prospects of getting summer work as a plasterer are measurably more difficult with a conviction, than without. On this second point, if two plasterers with otherwise equal attributes were applying for one job, when Mr Graham had a conviction but the other did not, then the presence of the conviction would predictably count against him.

[29] The three forms of particular disadvantage can be summarised in the following way. In Mr Graham’s pursuit of further winter work with a ski patrol, his past work record, and attributes for the job generally, make him equally as likely to get employment of the type he has had in the past. However, one sub-set of the work, for which he has not thus far been qualified, will most likely not be available to him, at least for the next three years.

[30] So far as summer work is concerned, the conviction constitutes “a black mark” that makes him less competitive with others applying for jobs as plasterers and most likely excludes him from one employer dominant in the market in Canterbury.  That is a material step short of finding that he will be unable to work as a plasterer.

[31] So far as obtaining a work visa for Canada is concerned, the discretion to be exercised by Canadian Immigration officials is tipped somewhat against Mr Graham, with a negative rating because of a conviction. Disclosure of the charge, his guilty plea and subsequent discharge, were that to occur, would improve his prospects in that regard.

[32] Overall, this is an assault, the seriousness of which would be demeaned by a discharge, unless the disproportionate adverse consequences were stark. I am not satisfied that they reach that level. The disadvantages Mr Graham has cited are a variant on those that would arise for a good portion of first offenders placed in this predicament. Mr McKenzie’s submissions emphasised the  misfortune  following from those consequences, but the disproportionality required before the Court discharges, instead of convicting, in such circumstances is not made out.

[33]    Accordingly, the appeal is dismissed.

Dobson J

Solicitors:
Crown Solicitor, Christchurch

Counsel:
Andrew McKenzie, Christchurch