Haze v Police

[2019] NZHC 1974

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-000006

[2019] NZHC 1974

IN THE MATTER OF

an appeal against sentence

BETWEEN

ROMOARE HAZE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 August 2019
Counsel:	A M Harvey for the Appellant C S Taylor for the Respondent
Judgment:	13 August 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 13 August 2019 at 3.30 pm.

Registrar/Deputy Registrar

Solicitors:    Thomson Wilson, Whangarei

Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei

HAZE v POLICE [2019] NZHC 1974 [13 August 2019]

[1]    Mr Haze pleaded guilty to one charge of indecent assault after the complainant gave evidence at his jury trial in September 2018.1 His application for a discharge without conviction was declined and he was sentenced to 150 hours’ community work and 12 months’ supervision.2 Mr Haze appeals the decision refusing him a discharge without conviction.

The offending

[2]    Although the complainant had given evidence at trial, Mr Haze’s guilty plea was in relation to the summary of facts. The following is taken from that document.

[3]    Mr Haze and the victim were unknown to each other. In early 2017, Mr Haze approached the victim while she was shopping in Whangarei. He told her his name and asked if he could take her to lunch and for a walk. She declined.

[4]    The incident giving rise to the indecent assault charge occurred at about 6 pm on 4 April 2017. The victim had been to the gym and was walking to her car. She got into her car and shut the door. Mr Haze came running up to the car and knocked on the window. The victim opened the door.  Mr Haze crouched down, said hello, and began asking her questions about the gym. He then began asking her what she did to train her arms and legs. By this time the victim was feeling extremely uncomfortable.

[5]    Mr Haze then put his hand on top of the victim’s right calf muscle and moved his hand up and down saying all the time that it felt good. The victim told Mr Haze not to touch her. Mr Haze removed his hand. He then offered to show the victim his biceps. The victim told him to go away and leave her alone. Mr Haze then took off his jumper and began showing the victim his biceps. He continued talking about training at the gym, asking her if she wanted to go for a walk, and making enquiries about her husband.

1      Contrary to s 135 of the Crimes Act 1961; maximum penalty seven years’ imprisonment.

2      R v Haze [2019] NZDC 5273.

[6]    It was at this point that Mr Haze reached into the car, put his right hand on the victim’s leg and began to rub it up towards the victim’s waist. He then leaned in and kissed the victim on the neck. The victim pushed him away telling him to “fuck off” and saying that her husband was currently training at the gym. Mr Haze then ran off.

[7]    In her victim impact statement, the victim describes being shaken by what happened. Prior to the incident, she says she was open and trusting, but now she is more cautious around people she does not know and does not like to go to places without her husband.

Personal circumstances

[8]    Mr Haze was 32 years old at the time of the offending. He has two young children, and at the time of sentencing in the District Court was completing an apprenticeship as a motor mechanic. That employment has since been terminated for reasons unrelated to his conviction.

[9]    Mr Haze’s affidavit in support of a discharge without conviction refers to matters of a personal nature in his childhood for which he is now receiving treatment from a clinical psychologist. A letter from that psychologist was annexed to Mr Haze’s affidavit. In her opinion, Mr Haze’s childhood experiences have skewed his perception of consent.

[10]   In terms of criminal history, Mr Haze has two prior convictions, both relating to events on 24 September 2012. One is for male assaults female and the other is for possession of a knife in a public place. Both are stated on Mr Haze’s criminal history to have been family violence offences. There are no other details of the offending leading to these charges.

District Court decision

[11]   The Judge began by noting the three-stage approach to applications for discharge without conviction made under ss 106 and 107 of the Sentencing Act 2002.

[12]   As to the first of those three stages, the Judge found the offending to be moderately serious. The Judge noted that the touching was not of an intimate area, but that it involved skin-on-skin contact of a deliberate and sustained nature which had occurred after the victim had clearly told Mr Haze she was not interested in him.3

[13]   The Judge considered Mr Haze’s previous convictions to demonstrate “a particular attitude towards women”.4 On the other hand, Mr Haze’s personal history was seen to lessen the culpability of his offending; albeit not, in the Judge’s view, by much.5

[14]   In terms of the second stage, the Judge noted that Mr Haze had raised three concerns in his affidavit evidence. The first of these was his personal history. As the clinical psychologist’s letter did not say a conviction would hinder Mr Haze’s treatment, the Judge did not regard this as a particular issue.6 Further, the Judge did not consider that the stigma of conviction would more gravely affect Mr Haze’s mental wellbeing any more than that of the notional average defendant.

[15]   The second concern raised was the impact of a conviction on Mr Haze’s employment or training as an apprentice. The Judge noted that Mr Haze had not put anything before the Court indicating that this was more than a potential problem. He was not persuaded that this was a real and appreciable risk in the circumstances.7

[16]   The third concern related to the offence being the subject of a first-strike warning under the Sentencing Act. The Judge said that was a natural and ordinary consequence of Parliament having designated indecent assault a “serious violent offence”,8 and it was not a risk of any consequence to Mr Johnson.9

3      At [9] and [10].

4 At [11].

5 At [12].

6 At [15].

7 At [16].

8      Sentencing Act 2002, s 86A.

9 At [17].

[17]   Taking the above into consideration, the Judge was not satisfied that a conviction would be out of all proportion to the seriousness of Mr Haze’s offending. The application for a discharge was accordingly dismissed.

Approach to appeal

[18]   The legal principles relevant to an application for a discharge without conviction are well settled.   The Court must consider whether the threshold under    s 107 of the Sentencing Act has been met. That requires the Court to undertake a three- step analysis assessing:10

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

(b)the direct and indirect consequences of a conviction. There must be a “real and appreciable” risk that any given consequence will happen; and

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

[19]   If the offender meets the s 107 threshold, then the Court may go on to consider whether to exercise the residual discretion under s 106.

[20]   An appeal against a refusal to grant a discharge is an appeal against conviction and sentence.11 The proportionality test under s 107 is a question of fact requiring judicial assessment.12 General appeal rights apply.

Gravity of the offending

[21]   Mr Harvey, counsel for Mr Haze, submits that the Judge erred in characterising Mr Haze’s offending as being of moderate, rather than minor, seriousness.

10     See R v Taulapapa [2018] NZCA 414 at [22] for a recent statement of these principles.

11     Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].

12     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

[22]   In terms of the offence itself, the Court of Appeal has acknowledged that indecent assault encompasses a wide range of conduct and each case requires assessment on its own facts. Nevertheless, because all such offences involve an infringement on an individual’s right to autonomy and dignity, it is an offence that the Court always takes seriously.13

[23]   Mr Haze’s offending in this case had several aggravating features. It was deliberate. It appears that Mr Haze followed the victim as she exited the gym and went to her car. Mr Haze had attempted on at least two occasions to make contact with the victim, and she had made it clear that she had no interest whatsoever in talking to him. I do not consider the Judge was wrong to characterise that offending as persistent in the circumstances.

[24]   The assault itself involved skin to skin contact and kissing on the victim’s neck. The victim was in a confined space and so could not avoid Mr Haze’s advances. In that respect, she was vulnerable and understandably frightened by Mr Haze’s conduct. I consider it was open to the Judge to assess the gravity of the offending as moderately serious in those circumstances.

[25]   In terms of personal aggravating factors, I consider the Judge was also entitled to take into account Mr Haze’s previous male assaults female conviction. I accept that there were no details of the particular offending, and accordingly the inference that Mr Haze had “a particular attitude towards women” may have been strained. Nevertheless, and as the Crown submits, both convictions involve physical and unwanted contact against women. In that respect, it was an aggravating feature that contributed to the overall assessment of the gravity of the offending as being moderately serious.

[26]   As to personal mitigating factors, Mr Harvey submits that the Judge failed to accord sufficient weight to the psychological impact of Mr Haze’s childhood trauma. The psychiatrist’s opinion that this background skewed Mr Haze’s perception of consent and meant that  he failed  to pick up on social cues  assists in explaining    Mr Haze’s conduct. But that explanation does not excuse his conduct. Although it

13     Waine v R [2017] NZCA 287 at [16].

mitigates the gravity of the offending to some extent, I agree with the Judge that it does not have a great impact on the seriousness of Mr Haze’s offending.

[27]   Looking at all the factors in the round, I consider the gravity of the offending was probably around the low–moderate mark. That may be less than what the Judge assessed it as – but not by very much.

Consequences of conviction

[28]   Mr Harvey submits that the Judge erred in assessing the consequences of the conviction (a) for Mr Haze’s employment prospects, and (b) in relation to the effect of the first-stage warning for the offence.

Employment

[29]   At sentencing, the focus of Mr Haze’s application for a discharge without conviction was on retaining employment. At that time Mr Haze was in regular employment and working towards completing his mechanics apprenticeship. Since then, however, Mr Haze has lost his job, although for reasons seemingly unrelated to his conviction. Mr Haze is pursuing an unjustified dismissal claim and looking for alternative employment.

[30]   In an updating affidavit filed with the Court, Mr Haze states that he has been unsuccessful in finding other jobs. He says that previously he did not have as much difficulty in obtaining a job “but it seems now with my recent conviction things have become more difficult”.

[31]   There is little detail provided in either of Mr Haze’s affidavits about the impact of a conviction on his employment.  That will ordinarily be required.  However, in   R v Taulapapa, the Court of Appeal observed that there is no legal onus on an offender to provide a factual basis satisfying the s 107 threshold, and s 107 simply requires that the judge be satisfied that the requirements of the section are met.14

14     R v Taulapapa [2018] NZCA 414 at [23].

[32]   Mr Harvey relies on the summary of the points emerging from case law about the impact of a conviction on employment prospects noted in that case.15 In particular, he refers to the Court of Appeal’s observations that the consequences of conviction may be severe where employers are filtering applications without considering the circumstances of the criminal offending. The Court said that this may be particularly relevant for semi-skilled and unskilled workers.16 Mr Harvey submits that Mr Haze’s chosen employment, that of an automotive mechanic, falls into this category.

[33]   The Court of  Appeal’s  observations  in  R  v  Taulapapa  do  not  advance Mr Haze’s case in my view. That case was concerned with the impact of a conviction on the employment prospects for young offenders. Mr Haze is 32 years old and he has an employment record. He accordingly falls outside the offender group that the Court of Appeal was particularly concerned with in that case.

[34]   Further, it is not possible to say that Mr Haze’s difficulties in obtaining employment in his chosen field are due to his conviction. He has provided scant detail to substantiate that claim. Given his prior criminal history, and his present employment difficulties, it is by no means clear that problems in obtaining employment are due to his conviction.

[35]   On the basis of the evidence before the Court, I am not persuaded that Mr Haze faces any greater difficulties in obtaining employment as a result of the conviction than would flow in the ordinary course.

First-stage warning

[36]   Mr Harvey submits that the Judge erred by not according sufficient weight to the fact that entering a conviction will mean that Mr Haze will receive a first-stage warning under the Sentencing Act.

15     At [34]–[49].

16     At [42(d)].

[37]   The Judge considered this to be a matter mandated by Parliament, and not a risk of any consequence for Mr Haze.17 That is because the actual impact of a first- stage warning only arises if Mr Haze commits a second-stage offence (as defined in the Sentencing Act). In those circumstances, Mr Haze will be obliged to serve the full sentence imposed for that offence without parole. But, until that time, the first-stage warning is simply noted on Mr Haze’s criminal record and it has no other consequence of any substance.

[38]   Mr Harvey was unable to find any cases in which this point had been considered and accordingly did not press this ground of appeal before me. I have not had the benefit of full submissions on the competing contentions on either side of this argument. Nevertheless, the possibility that there may be cases where the offending is of such a low level that just becoming subject to the three-strike regime is a consequence out of all proportion to the gravity of the offending cannot be discounted.18

[39]   However, I am not persuaded that this is one of those cases. Although the gravity of the offending is towards the lower end of the scale, it is far from being at the bottom. On the basis of the material before me, I am not satisfied that this is a case where the statutory consequence of a first-stage warning is one that is out of all proportion to the gravity of the offending.

Proportionality

[40]   It follows from my analysis above that the consequences identified by Mr Haze are not out of all proportion to the gravity of his offending. They are ordinary consequences that flow from offending of this nature.

[41]   Further, there is no evidence that these consequences will be magnified due to Mr Haze’s childhood experiences. Importantly, there is no reason to suggest that entering a conviction will impede Mr Haze’s treatment for those experiences.

17     R v Haze [2019] NZDC at [17].

18     Compare Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49 at [77]–[79].

[42]   Accordingly, the threshold in s 107 is not met and the question of the Court’s discretion in s 106 does not arise. The Judge did not err and the appeal must be dismissed.

Result

[43]The appeal is dismissed.

Edwards J