HM v Police

[2015] NZHC 1910

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 203 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-174 [2015] NZHC 1910

BETWEEN

HM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 July 2015
Appearances:	M Utting for Appellant J V Angelson for Respondent
Judgment:	12 August 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

12 August 2015 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Utting Law, Milford

Meredith Connell, Crown Solicitors, Auckland

HM v NEW ZEALAND POLICE [2015] NZHC 1910 [12 August 2015]

[1]      Ms HM pleaded guilty to resisting police and to assault with intent to injure. The injured officer was left with minor swelling to his right thumb.  An application for discharge without conviction was made and declined by District Court Judge Maude.   Ms HM appeals against the decision declining to discharge her without conviction pursuant to s 107 of the Sentencing Act 2002 and failing that, to appeal the final sentence imposed.   Ms HM was sentenced to three months’ community detention and nine months’ supervision.

Background

[2]      Ms HM pleaded guilty to the following summary of facts.   On 31 August

2014 Ms HM was at her home.  The victim and one other police officer attended her address  and  arrested  her  on  an  unrelated  matter.    She  was  grossly  intoxicated, agitated, irrational and unreasonable.  The victim placed handcuffs on the defendant keeping her hands in front of her.  The victim escorted Ms HM from the address with his right hand on her right forearm and his left hand on her right shoulder.  Ms HM pulled her right arm to her face, leaned forward and bit the victim on his right thumb. Ms HM was taken to ground and police struggled to apply the handcuffs behind her back.  Ms HM managed to pin her left hand between her legs and refused to release it, physically resisting police attempts to move her left hand behind her back.  The police  had  to  physically  restrain  Ms  HM  in  the  back  of  the  patrol  car  as  she continued to lash out and behave irrationally throughout the entire journey.

[3]      While transporting Ms HM to the police station she managed to remove her seat belt and attempted to open the patrol car door stating “I want to jump out!”, and “I just want to die!”

[4]      The victim struggled to fasten Ms HM’s seat belt.   Ms HM lunged at the

victim attempting to bite his hand.

[5]      Ms HM again removed her seat belt and made attempts to open the vehicle door.  The victim attempted to re-apply Ms HM’s seat belt.  As the victim brought the seat belt down past Ms HM, she bit him on his left little finger.  Ms HM then

later lunged at the victim biting him down on his left shoulder and shaking her head violently from side to side.

[6]      When Ms HM became aware that she had not hurt the victim, she head- butted his shoulder.

[7]      Ms HM kicked out glancing the driver’s left elbow while travelling in a 100

kilometre zone in poor weather conditions.

[8]      Ms HM made at least two other attempts to bite the victim, but was restrained before she could make any significant conduct.

[9]      In terms of injuries, the victim suffered minor swelling to his right thumb. The victim was wearing a police issue duty jacket which prevented an injury to his shoulder.

Sentencing notes

[10]     The Judge referred to the facts of the offending as described in the summary

of the facts. The Judge then referred to Ms HM’s background:

[7]       I have a probation officer’s report, which is designed to inform me about you.  The probation officer observes that you have a relatively short criminal history that relates to drink-driving.  I note that, in fact, you have two convictions for driving with excess breath alcohol from 2012 and 2013, coupled with a failure to stop to ascertain injury and operating a motor vehicle carelessly.   You advised the probation officer that you had no recollection of the offending itself and claimed that you were at a friend’s

21st birthday drinking and that you had been hypnotised.

[8]       Following  the  event,  you  reported  that  you  sought  counselling through ACC, that you had completed 12 sessions by the time of the report and that you had a further 48 sessions approved for you. You added that you had been diagnosed with post-traumatic stress disorder.  This the probation officer verified with your clinical psychologist, who also reported that you had been reliable in your attendance record with her.  You also provided the officer with evidence of completing an eight week CADS programme to deal with your alcohol issue and that you had reduced your alcohol use to not more than three bottles of premix alcohol beverages at any one sitting.

[11]     The Judge framed his s 107 assessment as follows:

[11]      … I must assess the gravity of your offending and weigh it against the indirect and direct consequences of conviction and, if the consequences of conviction outweigh the gravity of your offending, then I may consider discharging you without conviction.

[12]     The Judge described the gravity of Ms HM’s offending in this way:

[12]     …There was a prolonged and serious resistance with assaults by biting of an officer in the execution of his duty, involving also risks to the safety of the officer and, indeed, to you during the course of driving.  I note that the maximum sentence that I can impose upon you with relation to the charge of assault with intent to injure is three years’ imprisonment and with relation to resisting the police, three months’ imprisonment.

[13]     The Judge noted that the assault with intent to injure is a relatively serious charge and that the assaults that took place intended to cause pain.  The Judge notes assertions by Ms HM that she was hypnotised on the night in question and that her drinks may have been spiked causing her to suffer a flash-back when at the age of 14 she had been raped on a beach.

[14]     The Judge considered following mitigating factors included the guilty plea, the officer sustained no lasting injuries and that there has been no subsequent offending.  The Judge refers to Ms HM’s doctor’s indication that she suffers from a post-traumatic stress disorder and that her parents and sisters describe her behaviour as out of character.   Reference is also made to the completion of the CADS programme and a good report from her employer.

[15]     The Judge then assesses the consequences of conviction in this way:

[16]      In terms of the consequences of conviction upon you, I note that it is suggested that conviction will cost you a lifelong penalty for a 21 year old.  I have to say, I think that submission has marginal significance because that is always  the  case  with  a  conviction.    The  effect  of  two  convictions  for violence and resisting might have an effect on your employment.  It is not suggested that it necessarily will affect future employment prospects but I am prepared to accept that convictions likely might affect your future employment prospects, though I note, not your current employment.

[16]     As to the weighing exercise, the Judge then concludes:

[17]      I turn, then, to weigh the consequences upon you with the gravity of your offending. This is serious offending in light of public policy, that is, the need to protect officers by deterrent sentences and the actual prolonged resistance and biting that occurred.  In my view, it is not sufficient to simply

assert that you were hypnotised and I am not prepared to accept as a matter of fact that that was the case.  You acknowledge, yourself, that you on the night in question had 10 bourbons and Coke, which does suggest that you were significantly intoxicated.   I accept that there is an adverse effect on your employment.  However, the principles of accountability, responsibility (that is, instilling responsibility), deterrence and public safety, in my view, call for your offending to be marked.

[17]     The application is then declined.

Jurisdiction

[18]     Ms HM has a general right of appeal.1   An appeal against a decision not to discharge without conviction is an appeal against a substantive assessment to which s 107 of the Sentencing Act 2002 applies, rather than an exercise of discretion. Therefore,  the  normal  appellate  principles  in  Austin,  Nichols  & Co  v  Stichting Lodestar2 apply to the s 107 analysis.3

Statutory framework

[19]     Section 107 of the Sentencing Act 2002 states:

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.

[20]     The Court of Appeal in Z v R4 recently stated:

[27]      For  our  part,  we consider that  there  is much  to  be said for  the approach adopted by the Divisional Court in A(CA747/2010).  That is:  when 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).

1      Criminal Procedure Act 2011, ss 229 and 244.

2      Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

3      Weng v NZ Police [2014] NZHC 2586.

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

(Footnotes omitted.)

Grounds of appeal

[21]     Ms HM appeals on the following grounds:

(a)      The Judge erred in assessing the gravity of offending through failing to take into account relevant considerations including:

(i)       The police prosecution position on Ms HM’s application;

(ii)      The reasons why the police were visiting Ms HM’s address

that evening in the first place;  and

(iii)     Causes of Ms HM’s state of mind at that time.

(b)That  the  Judge  erred  in  his  assessment  of  the  consequences  of conviction by considering the potential impact of Ms HM’s future employment and career as a real estate agent.

(c)      That the Judge erred in weighing the consequences of a conviction against the gravity of the conviction.

(d)That the sentence imposed was manifestly excessive and failed to take into account the principles and purposes of the Sentencing Act.

[22]     I will address each ground in turn.  But first I must address an application by

Ms HM to produce evidence from her father about events leading up to the arrest.

Evidence

[23]     Leave was sought to provide an affidavit from Ms HM’s father setting out the details of what happened that night and why the police came.   Helpfully, Ms HM’s father’s affidavit is short.  He says that on the night in question, Ms HM had come home having been out with friends and was acting completely out of character and was distressed.   He says that she did not seem to recognise where she was or her

family, and that she was “reliving some sort of nightmare”.  He says that she could not be appeased.   Ms HM’s family became very concerned about her and sought emergency medical assistance.  They had not anticipated that the police would attend and that is when things are said to have got out of hand.  Ms HM’s father also refers to the distress caused by seeing Ms HM in the dock and especially when the Judge read out that Ms HM had been raped.

[24]     The respondent objected to this evidence on the basis that it is not fresh evidence and it would not in any event make much difference to the end result.  The respondent is right on both counts, but this is an appeal against an evaluative judgment made pursuant to s 107.  I am not concerned about the finality of verdict and there is no challenge to the summary of facts.  For my part, I prefer to resolve the key issues of gravity and consequence by reference to relevant information, and there is no suggestion that Ms HM’s father lacks credibility or that what he says is in fact challenged.  I therefore considered that it was in the interests of justice to allow the affidavit evidence pursuant to s 335(2)(c) of the Criminal Procedure Act 2011.

Position of prosecutor

[25]     The police prosecutor indicated at the District Court hearing that they were neutral as to the application for a discharge without conviction.  It might be expected that a prosecutor will oppose an application for discharge without conviction for genuinely serious offending, particularly as it relates to assault on a police officer. Conversely, it might be reasonably assumed that a prosecutor who does not oppose discharge does not consider the offending to be serious.  But those matters are not mandatory relevant considerations for the purposes of an assessment under s 107.  I see no error on this ground.

Events leading up to police arrest

[26]     I do not accept that the Judge erred about events leading up to the arrest. As the respondent notes, the summary of facts provided the factual base for this assessment.  While Ms HM’s father’s evidence provides some context for Ms HM’s actions, it does not change the simple fact that the police attended the family home and were confronted and then assaulted by Ms HM.

State of mind/personal factors

[27] I also reject the submission that the Judge did not take into account Ms HM’s state of mind and other personal factors at the time of the offending. There is nothing to suggest Ms HM’s was hypnotised, so the Judge understandably rejected that possibility. The Judge also referred to the fact that Ms HM was diagnosed as suffering from post traumatic stress disorder and that her behaviour was described by her parents and friends as out of character. He then refers to therapy undertaken by her and a favourable report from an employer. The Judge links all of this to the “gravity of the offending” at [15]. I therefore perceive no error in terms of failing to have regard to Ms HM’s state of mind and relevant personal factors. I come back to the assessment of weight given to these matters below at [31].

Employment prospects

[28]     Mr Utting acknowledges that the Judge accepts that the convictions might affect Ms HM’s employment prospects, but he says that the Judge does not appear to have considered the fact that Ms HM would need to explain the background to the offending, including her post traumatic stress disorder as a result of the rape.  Ms HM’s desire to become a real estate agent was also emphasised, together with the difficulties that she would face with convictions for resisting arrest and assault with intent to injure.

[29]     Mr  Angelson  for  the  respondent  accepts  that  convictions  will  affect employment opportunities, but notes that the Criminal Records (Clean Slate) Act

2004 provides a mechanism for relief assuming the requisite statutory criteria apply. He submits that to allow a discharge for qualifying offenses could subvert the intent of the Act.5 He also submits that the evidence of the effect on Ms HM’s employment

prospects was inadequate,6 and in any event the Court should be slow to deprive the

Real Estate Agents Authority of the opportunity to consider Ms HM’s suitability.

[30]     In my view the Judge plainly had regard to the fact that the conviction could

impact upon Ms HM’s employment prospects. While the Judge did not state that this

5 Citing Williams v Police [2013] NZHC 394.

6 Citing Police v M [2013] NZHC 1101 at [49].

might mean that Ms HM may need to explain the circumstances of the offending, I

am not prepared to impute to the Judge a failure to consider the obvious.

Out of proportion

[31]     I  am  however  unable  to  agree  with  outcome  of  the  weighing  exercise undertaken by the Judge.  I address first the gravity of the offending. In reality, the assault caused minor swelling to the thumb of a police officer. There are aggravating background facts, including Ms HM’s kick glancing the officer’s left elbow while driving.  But I think it overstates matters to suggest that the officer was at real risk of danger or serious injury or that there was any substantial risk to the public. Furthermore, at the time of the offending there is evidence that Ms HM was acting out of character, and suffering from post traumatic stress disorder, arising from a rape when she was 14.   Mr Angelson did not dispute this. Further mitigating the severity of her offending, Ms HM has taken numerous steps to address the apparent causes of the offending, including her post traumatic stress disorder and her alcohol abuse.  In this unusual context, I do not consider that the gravity of the offending to be serious even though it involved a police officer.  Indeed, it is not at all surprising that the police prosecutor did not oppose the application for discharge.

[32]     By contrast the consequences of conviction are very serious for Ms HM. She is only 21.  Like most young people her age, she is looking to embark on a career that will set her up for the next phase of her life.  She wants to pursue a career in real estate.   Plainly convictions for resisting arrest and assault on a police officer will cause consternation and will likely present (in the sense of a real and appreciable risk) a substantial barrier to her prospects for future employment.  As the Court of Appeal put it in DC v R, their existence would of themselves “either operate as an immediately  disqualifying  factor  or  elicit  an  inquiry  at  the  very  least,  with  an

attendant obligation to explain”.7    But as noted, the explanation involves a deeply

personal affliction and trauma that might ordinarily attract a reasonable expectation of privacy.

7      DC v R [2013] NZCA 255 at [45].

[33]     Overall, for my part in light of the foregoing, and with respect to the care taken by the Judge in the evaluation, the long term, potentially blighting consequences of the convictions for Ms HM are out of all proportion to the gravity of the offending.

[34]     For completeness,  I do  not accept the proposition that discharge without conviction may subvert the policy of the Criminal Records (Clean Slate) Act 2004 insofar as it enables a defendant to prematurely obtain a “clean slate”.   On the contrary, the Sentencing Act 2002 reflects a clear statutory policy that the consequences of conviction should never be out of all proportion to the gravity of the offending.  It is not a matter then of clean slate.  Rather, if applicable, it is legislative recognition that there should be no conviction at all.

[35]     It should be obvious that nothing said here should be taken to approve Ms HM’s conduct.   Even minor assaults of police officers will demand attract opprobrium.  But the minor actual harm caused by Ms HM, the reasons for it, and the rehabilitative steps taken by her, needed to be carefully measured against the long term potentially very significant adverse consequences for her of convictions relating to that harm.  On close examination, in my view, the adverse effect on her prospective employment would be out of all proportion to the gravity of her offending.

[36]     I  have  considered  whether  the  right  of  prospective  employers  to  know, including the Real Estate Authority should prevail in this context.  I am satisfied that this is a proper case for judicial oversight providing the requisite surety obviating the need for public notification by way of the convictions.

[37]     Given the foregoing I see no reason for the purpose of s 106 to decline to discharge Ms HM without conviction on the resisting and assault charges.  There is also no need to consider the appeal against sentence.

[38]     Accordingly, the appeal is allowed.  The convictions are set aside.  On both counts of resisting arrest and assault with intent to injure, Ms HM is discharged without conviction.

Suppression

[39]     I invite submissions from the parties within five working days on whether suppression is sought in respect to all or any parts of this judgment.  In the interim, identifying particulars of the appellant shall remain suppressed.  If no submissions are received the suppression order shall lapse.

Addendum

[40]     After   considering   submissions   from   the   parties,   the   name,   address, occupation or identifying particulars of appellant are suppressed pursuant to s 203

Criminal Procedure Act 2011. This judgment has been anonymised accordingly.