Heketa v Police

[2018] NZHC 2204

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2018-441-18

[2018] NZHC 2204

IN THE MATTER

of an appeal pursuant to s 229 of the Criminal Procedure Act 2011

BETWEEN

RYAN JOHN HEKETA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 August 2018
Appearances:	E R Bruce for the Appellant C R Stuart for the Respondent
Judgment:	24 August 2018

JUDGMENT OF COOKE J

(Conviction and Sentence Appeal)

[1]    Mr Heketa was convicted of male assaults female1  and wilful damage2  on   10 May 2018 after a Judge-alone trial before Judge Adeane in the District Court at Napier.3 Mr Heketa was sentenced to nine months’ supervision by Judge Adeane later that day.4

[2]    Mr Heketa appeals his sentence (and conviction) on the basis that he should have been granted a discharge without conviction. Mr Heketa does not claim that Judge Adeane erred in reaching the conclusions he did in the Judge-alone trial. Fresh affidavit evidence is tendered in support of the appeal

1      Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.

2      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.

3      Police v Heketa [2018] NZDC 12260.

4      Police v Heketa [2018] NZDC 16247.

HEKETA v NEW ZEALAND POLICE [2018] NZHC 2204 [24 August 2018]

[3]    The Crown does not oppose the admission of the fresh evidence, but opposes the appeal on the basis that discharge without conviction is not appropriate in this case.

Factual background

[4]    Mr Heketa and Ms Bell are married, but have been separated since October 2017. In February 2018, they came to an arrangement for Mr Heketa to go to Ms Bell’s home and look after their four-month old daughter while she attended an appointment. When Mr Heketa arrived, and argument developed over a cell phone that Mr Heketa had purchased for Ms Bell because Ms Bell was now using that phone to contact other people. Mr Heketa grabbed the phone and smashed it in front of Ms Bell and her five- year-old son, who is not a child of Mr Heketa.

[5]    Mr Heketa then attempted to leave the house with his infant daughter. It was common ground at the hearing, that there had been no prior arrangement for Mr Heketa to take the daughter away from the house. Mr Heketa took the infant to Ms Bell’s vehicle and placed her in a child car seat. He then removed the child car seat, and took it over to his vehicle. While this was going on, Ms Bell was attempting to regain physical possession of the infant. Mr Heketa repeatedly pushed her away to prevent this from occurring.

[6]    Finally, Mr Heketa grabbed her by the hair and dragged her head down. He then pushed her by the neck against a corrugated iron fence that was next to the car. She screamed and demanded to be let go, which Mr Heketa eventually did. Ms Bell then persisted in her attempts to take the child back off him. Mr Heketa then repeatedly grabbed her by the hair and threw her to the ground. She landed on her back and on her side on various occasions, causing her ribs to crack. She was screaming. Then, while she was on the ground, Mr Heketa punched her on the left cheek. At this stage, Ms Bell punched Mr Heketa back, and kicked at him. He backed off.

[7]    Ms Bell then took the infant (still in the child car seat) from the vehicle and retreated into her house, attempting to lock the door. She did not manage this in time. Mr Heketa pulled her outside the house and threw her to the ground, while she was still holding the infant in the child car seat. The infant was not secured in the child car

seat and fell out onto the ground. The five year old son was present in the house when this happened. Mr Heketa then left the property.

[8]    Ms Bell received a bruised scalp and neck, a swollen cheek, a grazed hand, forearm, elbows and legs and cracked ribs. Photographs of these injuries were presented to the District Court.

District Court decision

[9]    Mr Heketa initially challenged the lack of medical evidence for the cracked ribs, but did not pursue this line of defence. He then pursued an argument that he was protecting his infant daughter from a perceived attack by Ms Bell. Judge Adeane rejected this proposition for lack of evidential foundation. Mr Heketa did not give evidence before him.   Finally,  Mr Heketa pursued self-defence by claiming that   Ms Bell was the instigator of the violence and rejected that many of the specific act of violence took place. Judge Adeane also rejected both of these arguments, accepting Ms Bell’s evidence. There was a dispute over the fact Ms Bell had omitted some of the more gruesome details from her statement to police, but Judge Adeane accepted her explanation, that she was ashamed of what had happened to her, accorded with what he described as modern knowledge about domestic violence.

Personal circumstances

[10]   Mr Heketa is 32 years old. He has one previous conviction for breaching a local liquor ban in 2007.

Appellate principles

[11]   An appeal against a failure to discharge without conviction is an appeal against conviction and sentence. If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.5 The appellant does not otherwise challenge the sentence imposed.

5      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

[12]   New evidence may be admitted on appeal if the Court considers the evidence necessary or expedient in the interests of justice.6

Ground of appeal

[13]   Mr Heketa did not apply for a discharge without conviction at the time of sentencing before Judge Adeane, as he says he was not aware of the option to do so. Ms Bruce, counsel for Mr Heketa, submits that if such an application had been made, a discharge without conviction would have been the appropriate outcome.

Fresh evidence

[14]   Three affidavits have been filed in support of Mr Heketa’s appeal. The first is an affidavit by Mr Heketa, the second is an affidavit by Mr Boyd, the owner of a personal training business who has worked with Mr Heketa, and the third is an affidavit of Mr Hanley, who is Mr Heketa’s United States mixed martial arts manager.

[15]   In his affidavit, Mr Heketa says that he acknowledges what he did was serious and that he is deeply regretful for the pain he has caused. He explains that he has made the decision to relocate to the Hutt Valley, away from his family in Napier, which he says was a very difficult decision for him. He also explains that he has willingly engaged in the Living without Violence programme. He also mentions that his relationship with Ms Bell was “at times one of mutual abuse, including both psychological and physical abuse directed at me.” He further explains that has been attending counselling and has sought medical help to manage his mental health.

[16]   Mr Heketa says that the convictions will hinder his career as a professional mixed-martial arts practitioner. He started mixed-martial arts in 2002, and began fighting for money in 2007. He  explains  there  is  not  enough  of  a  market  in  New Zealand, so he has to fight overseas. He has fought in Australia on several occasions in the past, and would like to fight in the United States, Canada and Japan. He explains that mixed-martial arts is currently only his secondary source of income, but his long-term goal is to pursue it as his primary career. He says he would be

6      Criminal Procedure Act 2011, s 355.

devastated if he lost the opportunity to pursue this as a career. He also claims that it is a “good release” for him, as it involves personal discipline and control.

[17]   Mr Hanley confirms in his affidavit the truth of a letter he has written which explains that having any convictions, even minor, can be restrictive to travel to the countries mentioned above, and can also mean that mixed-martial arts competitions will not grant invitations to fight because of the risk of not obtaining a visa.

[18]   Mr Heketa also explains in his affidavit that he would like to work as a personal trainer. He previous did some apprentice work of this nature in 2015, and is currently completing an online personal training course. He says that gyms will want to see his criminal record before they hire him. He also notes that a lot of the clients are women, who might be concerned about his violence against his wife. He is concerned they will view his offending out of context.

[19]   Mr Boyd has worked with Mr Heketa in the past and is currently planning to enter into a business relationship with him. In his affidavit, Mr Boyd explains that having convictions would usually be an absolute bar for him to take on a personal trainer.   However, in the case of Mr Heketa, his concern is with the ability of       Mr Heketa to bring in clients, which would be Mr Heketa’s responsibility. Mr Boyd’s concern is that he would have to disclose Mr Heketa’s previous convictions if asked whether he had any.

[20]   I accept that this evidence is both fresh and necessary, and should be admitted on appeal.

Discharge without conviction

[21]   The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002, only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.7

7      Criminal Procedure Act 2011, s 107.

[22]   The Court of Appeal has outlined the following approach, which is to be used to determine an application for a discharge without conviction:8

(a)first, consider all the aggravating and mitigating factors relevant to the offending and the offender;

(b)second, identify the direct and indirect consequences of the conviction for the offender;

(c)third, consider whether those consequences are out of all proportion to the gravity of the offence; and

(d)finally, consider whether the Court should exercise its discretion to grant a discharge.

[23]   The first three steps are matters of fact, not discretion, which require assessment by this Court. The final step is an exercise of discretion, however, as Judge Adeane was not presented with the opportunity to consider a discharge without conviction, this step too would require consideration by this Court.

Analysis

Gravity of the offending

[24]   Mr Heketa’s offending involved domestic violence of a serious nature. The following aggravating factors apply to the circumstances of the offending:

(a)Extent of violence9 — The offending involved several different kinds of actual violence, including pushing, pulling hair, pushing against a fence, punching and throwing on the ground. Many of these acts were carried out repeatedly.

8      Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].

9      Sentencing Act 2002, s 9(1)(a).

(b)Vulnerability of the victim10 — There is a degree of vulnerability inherent in any domestic violence situation. This was increased in this case by the fact Mr Heketa is a trained material artist. Additionally, some of the violence occurred while Ms Bell was holding an infant, and in the presence of another five year old child.

(c)Harm to the victim11 — Ms Bell suffered from cracked ribs, along with other bruising, grazes and swelling.

[25]   I mention one of those factors, in part because it does not appear to have been stressed in previous decisions. If domestic violence occurs in the presence of children, in my view this is a significant aggravating factor. That is because of the risk of physical harm to the children, and the potential psychological harm, or emotional impact, that witnessing domestic violence can have upon children. Both of these aspects arise in the present case.

[26]The following mitigating factors apply to Mr Heketa’s personal circumstances:

(a)He has indicated remorse in his affidavit and also shown this through his subsequent actions.12 This is not unqualified, however, as he did not plead guilty to the charges and maintained his innocence until after the trial. His defence at the trial included a denial of much of the offending. But since conviction he appears to have come to a greater appreciation of the seriousness of what he did.

(b)He has engaged in rehabilitative measures, namely the Living without Violence programme (as directed by the Family Court) and two counselling sessions (as directed by Probation).

(c)There is evidence of previous good character, including a history of employment.13 Mr Boyd says that Mr Heketa is “extremely capable”

10     Section 9(1)(g).

11     Section 9(1)(d).

12     Section 9(1)(f).

13     Section 9(1)(g).

and would be an asset to his business. Ms Bell even says that he is an “amazing father” in her victim impact statement.

[27]   There are no aggravating factors relevant to Mr Heketa’s personal circumstances as he only has one minor previous conviction, which is over 10 years old. I accept that he is effectively a first time offender.

[28]   Ms Bruce submits that offences of a domestic nature can be treated as being at the lower end of the spectrum. She refers in support to several cases where domestic violence offenders have been discharged without conviction on appeal to this Court:

(a)In Pio v Police, the defendant engaged in a struggle over a child, which resulted him pushing his partner away, causing her to hit a nearby vehicle. The victim was five months pregnant and required medical attention.14

(b)In Oxenham v Police, the defendant pushed the victim over and pushed her several times, including to the head. He also pulled her by the hair.15

(c)In Bailey v Police, the defendant broke into his ex-wife’s home during the day and assaulted her new partner by repeatedly striking him to the head with a closed fist.16

[29]   There are material differences between these cases and the present case. First, in each of them, the defendant had pleaded guilty to their offending. Second, there are important factual distinctions which make this case more serious. Neither Oxenham  v Police, nor Bailey v Police, involved danger to children, which is one of the more concerning aspects of the present offending. In fact, Bailey v Police, did not even involve domestic violence against a partner. Pio v Police is the most similar in this respect, but it involved a much lesser degree of violence. The defendant in that case only pushed the victim away, whereas Mr Heketa engaged in a sustained attack on

14     Pio v Police [2014] NZHC 2047.

15     Oxenham v Police [2015] NZHC 2156.

16     Bailey v Police [2015] NZHC 3051.

Ms Bell, including pushing her, pulling her by the hair, holding her by the neck against a corrugated iron fence, punching her and throwing her on the ground. Ms Bell also appears to have suffered far greater injuries than any of the victims in those cases, as her ribs were cracked, while the other victims suffered cuts and bruises.

[30]   On the whole, this offending can fairly be described as serious. The fact the attack took place in the presence of the infant and young child put them at risk of harm, and at one point actually involved danger to the infant. There is a need to emphasise the condemnation of domestic violence of this nature. Mr Heketa’s personal circumstances only go some way to mitigating this level of seriousness, especially given the qualifications I have outlined with respect to those circumstances.

Consequences of the conviction

[31]   Ms Bruce submits that a conviction would inhibit Mr Heketa’s ability to work as a professional mixed-martial arts practitioner and as a personal trainer. This is based on the evidence presented in the three affidavits filed in support of the appeal.

[32]   Mr Heketa would not be required to disclose his previous conviction from 2007 in New Zealand because of the Criminal Records (Clean Slate) Act 2004. However, this legislation does not apply to overseas authorities that Mr Heketa would have to deal with to travel to international competitions. Mr Stuart refers to dispensations that it would necessary for Mr Heketa to obtain in order to travel or work in the United States and Australia. He accepts that while Mr Heketa’s previous conviction would already require him to obtain these dispensations the more recent convictions would create some greater difficulty.

[33]   The information that Mr Stuart was able to provide suggests that, with respect to Australia, Mr Heketa would be likely to meet the good character requirements that would allow him to enter Australia without needing to obtain a special visa. The character test would require him to establish that he did not have a “substantial criminal record”, and he does not appear to be within that category. Ms Bruce referred to the other possibility in this information of him being regarded as a person who might “harass, molest, intimidate or stalk another person” but reading that in context I do not think that would likely arise because of this domestic violence conviction.

[34]   Ms Bruce emphasised that even if Mr Heketa could meet the good character test there would still be a delay which would make things more difficult, but I accept Mr Stuart’s submission that the materials he has provided suggest that it would take only approximately three weeks of engagement with the Australian Consulate to see if he satisfied the good character test. For these reasons the appellant has not satisfied me that there are serious adverse consequences in terms of his ability to travel to Australia to compete resulting from conviction.

[35]   The position is not as certain for other countries, including the USA, Canada and Japan. Based on the information available he might face greater difficulties in these countries. And I note Mr Hanley’s evidence that such convictions might put off promoters from using Mr Heketa. But I also note that his activities in these other countries is, at this point, only aspirational. He has not actually fought in any of these countries, or as I understand it, received an invitation to do so. He has, however, obtained an agent.

[36]   I also do not accept that Mr Heketa’s convictions are likely to result in him not being able to work as a personal trainer. Mr Boyd’s evidence is that he would only discontinue his business relationship with Mr Heketa if it turned out that he was unable to build a client base. Mr Boyd’s concern is that Mr Heketa’s convictions would have to be disclosed if asked by a potential customer but he only describes this as a possibility. This consequence appears to be as much a result of Mr Heketa’s conduct as a result of the fact of his convictions. However I accept that it is possible that formal employment at a gym has the potential to be impeded, at least to some degree, by a conviction.

Proportionality

[37]   Ms Bruce refers to two cases in which diminished employment prospects were regarded as sufficient reasons to grant a discharge without conviction. In Nash v Police, a builder was discharged without conviction for domestic violence less serious than in this case, because a conviction would put at risk his chance at future employment.17 In Deeming v Police, a defendant with experience in the security

17     Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.

industry, and who was considering a career in the legal professional or police force, was granted a discharged without conviction for breaching a protection order.18

[38]   Mr Stuart, for the Crown, observes that the wording of s 107, “out of all proportion”, implies that a discharge without conviction is not appropriate in cases where the consequences of the convictions and the gravity of the offence are finely balanced. He refers to Police v Roberts, where the Court of Appeal said that those words refer to “an extreme situation which speaks for itself”.19 I accept that this is the correct approach.

[39]   The assessment of proportionality is necessarily an intensely factual exercise dependant on the circumstances of the particular case. Here I am not convinced that the consequences of Mr Heketa’s convictions would be out of all proportion with the gravity of his offending. Those consequences, while certainly a cause for concern for Mr Heketa, are not of a kind that cannot be addressed and managed. There is no suggestion, for instance, that he will be unable to make a living, or be absolutely prohibited from pursing his chosen career. They go no further than making some future activities potentially more difficult in some respects.

[40]   When these consequences are compared to the gravity of the offending, it becomes clear that this is not an appropriate case for a discharge without conviction. Mr Heketa’s offending was a serious incident of domestic violence, with impacts on children. While this might be out of character for Mr Heketa, it was still serious offending, and his remorse was delayed. Although, Ms Bell is generally supportive of Mr Heketa, she has expressed her desire in her victim impact statement for him to take responsibility for his actions. Bearing the consequences, direct and indirect, of having a conviction for domestic violence is part of taking that responsibility. While that might cause some difficulty for Mr Heketa, that is the result of the offending he has committed, and it is not disproportionate.

[41]   Ms Bruce also notes that  Mr  Heketa  would be willing to write a letter to  Ms Bell or pay reparations for emotional harm. These factors do not change the fact

18     Deeming v Police HC Whangarei CRI-2008-488-61, 24 July 2009.

19     Police v Roberts [1991] 1 NZLR 205 (CA) at 210.

that the consequences of Mr Heketa’s convictions would not be out of all proportion with his offending.

[42]   Domestic violence has recently been described by the Court of Appeal as “one of the scourges of New Zealand society”, and the courts will consistently give sentences to reflect the immense social harm caused by such offending.20 To grant a discharge without conviction in a case of quite a serious incident of domestic violence, where the offender did not plead guilty, would fly in the face of that stance in the absence of factors that very clearly make the conviction disproportionate.

[43]   Accordingly, Judge Adeane did not materially error by failing to consider and grant a discharge without conviction. Therefore, the appeal against conviction must be dismissed.

Result

[44]The appeal is dismissed.

Cooke J

Solicitors:

Reids Family Law, Lower Hutt for the Appellant Crown Solicitors for the Respondent

20     Solicitor-General v Hutchison [2018] NZCA 16 at [27]; see also Kohu v Police [2013] NZHC 944 at [16].