Holloway v Police
[2017] NZHC 2562
•20 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000284 [2017] NZHC 2562
BETWEEN AARON JACK HOLLOWAY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 October 2017 Appearances:
S W Walker for the Appellant
M J Mortimer for the RespondentJudgment:
20 October 2017
JUDGMENT OF HINTON J
This judgment was delivered by me on 20 October 2017 at 10.00 am pursuant to Rule 11.5 of the High Court Rules
……………………………………………………………………
Registrar/Deputy Registrar
Solicitors:
Raymond S Walker, AucklandMeredith Connell, Auckland
HOLLOWAY v NEW ZEALAND POLICE [2017] NZHC 2562 [20 October 2017]
Introduction
[1] On 21 July 2017, Mr Aaron Holloway was sentenced in the Auckland District
Court by Judge Thomas.1
[2] Mr Holloway had pleaded guilty to one charge of common assault2 and one charge of being unlawfully in an enclosed area or yard.3 Mr Holloway was sentenced to 12 months’ supervision with a special condition to attend treatment or counselling as directed by Community Probation. Mr Holloway was also ordered to
pay $300 emotional harm reparation to the victims.
[3] In sentencing Mr Holloway, Judge Thomas rejected Mr Holloway’s application for a discharge without conviction, concluding that the offending was moderately serious, and that the consequences of conviction were not out of all proportion to the gravity of the offending.
[4] Mr Holloway now appeals against the convictions and sentence imposed, and says that he should have been granted a discharge without conviction.
Background
[5] On 18 September 2016, Mr Holloway was picked up by a taxi at around
1.10am. The taxi driver, Mr Ali, is the primary victim of Mr Holloway’s offending. At the end of the trip, Mr Ali asked Mr Holloway for a fare of $40. In arguing over this, Mr Holloway asked, “Do you want me to smash this bottle over your head?”. Mr Ali then stopped Mr Holloway from smashing a bottle of gin on his head. Mr Holloway pulled Mr Ali’s jacket over his head and punched him in the head, jaw and chest using both hands with closed fists.
[6] When a bystander stopped to assist, Mr Holloway fled the scene on foot. He escaped to a property on a nearby street, and was located by police in a sleep-out
1 New Zealand Police v Holloway [2017] NZDC 19112.
2 Crimes Act 1961, s 196. The maximum sentence is one year’s imprisonment.
3 Summary Offences Act 1981, s 29(1)(b). The maximum sentence is three months’ imprisonment
or a $2,000 fine.
on the property. The owners of the property were not aware Mr Holloway was there, and did not know him. They are the other victims of Mr Holloway’s offending.
[7] As a result of the attack, Mr Ali suffered a swollen jaw, and had bumps and a red patch on his head.
District Court Decision
[8] On 21 July 2017, at the hearing for Mr Holloway’s sentencing, Judge Thomas heard Mr Holloway’s application for a discharge without conviction.
[9] Judge Thomas noted that the psychological effects for Mr Ali were likely to have been reasonably significant. His Honour stated that an attack by a passenger is the one thing that taxi drivers fear. They have nowhere to go. His Honour stated that they are “extremely vulnerable members of the community who place themselves in the company of others on blind trust and blind faith. In all likelihood that is going to be the first thing that [Mr Ali] thinks about every time he gets in his
cab now. “Am I going to get smacked over again?”4
[10] Judge Thomas assessed the overall gravity of the offending as “moderate” on
the basis that:
(a) the offending was violent and punishable by imprisonment;
(b)acts of violence against taxi drivers in such circumstances constitute serious offending;
(c) Mr Holloway had pleaded guilty;
(d) Mr Holloway was young, only 17 at the time of the offending; (e) Mr Holloway had engaged in counselling;
(f) Mr Holloway was prepared to pay $300 reparation to Mr Ali and the owners of the property where he was found by Police, and such a gesture was one of remorse; and
(g) Mr Holloway was reasonably well settled and doing reasonably well.
[11] In relation to consequences arising from the conviction, Judge Thomas stated that he had to be satisfied that there is a real and substantial risk of those consequences. His Honour noted that Mr Holloway did not point to any specific consequences, and had only raised general concerns relating to employment and international travel.
[12] Judge Thomas rejected the travel concern on the basis of the Court of Appeal decision of Edwards v R, which set out stringent requirements for success on that ground.5 Judge Thomas stated that Mr Holloway had not met those requirements.
[13] Judge Thomas accepted that as a matter of common-sense, employment would be more difficult if Mr Holloway had the convictions. However, he said that is a normal consequence of conviction.
[14] On that basis, his Honour concluded that the consequences of conviction were not out of all proportion to the gravity of the offending, and refused Mr Holloway’s application for discharge without conviction.
Approach on appeal
[15] Section 106 of the Sentencing Act 2002 provides that a court may discharge an offender without conviction.
[16] Section 107 provides guidance as to when a discharge can be granted. It provides that:
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.
[17] These requirements are mandatory. Section 107 requires consideration of three factors:6
(a) the gravity of the offence, having regard to both aggravating and mitigating factors, and the factors that apply to the offender;
(b)the direct and indirect consequences of a conviction, for which the Court must be satisfied that there is a real and appreciable risk of such consequences;7 and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[18] If the s 107 test is met, the Court then has a discretion to discharge under s 106.
[19] Section 107 requires judicial assessment of the threshold criteria, as opposed to the exercise of a discretion. Therefore, an appeal against the proportionality test under s 107 is by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.8
[20] An appeal against discretion arises only if the Court is satisfied that the consequences of a conviction will be out of all proportion to the gravity of the offence, but nevertheless determines not to discharge the offender under s 106.9
[21] This appeal concerns whether the s 107 criteria are established, and is therefore a general appeal.
6 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] and [27]. See also G S M v
Police [2017] NZHC 896 at [28]-[32].
7 Davis v Police [2016] NZHC 1216 at [17].
8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11] and [66]. See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 for the approach to general appeals.
9 G S M v Police, above n 6, at [27].
Grounds of Appeal
[22] Mr Holloway appeals the decision refusing to grant him a discharge without conviction on the following grounds:
(a) the gravity of the offending should have been assessed as low in light of the mitigating factors, such as Mr Holloway’s age and the ongoing steps he took during the proceedings;
(b) his completion of a Youth Court “sentence” of community work and
counselling should have been taken into account;
(c) the pending change in the age limit for the Youth Court is significant;
and
(d) the consequences of the convictions were not properly assessed.
[23] The first three grounds of appeal are matters that go to assessment of the gravity of the offending. I will therefore consider those three grounds at the first stage of the assessment under s 107.
Analysis
Assessment of the gravity of the offending
[24] Mr Walker, counsel for Mr Holloway, points out, as noted by Judge Thomas, that the complainant did not suffer serious physical injury.10 He says the charges are at a relatively low level. On that basis, it is submitted that the offending is not serious.
[25] Mr Walker also submits that Judge Thomas did not give sufficient weight to
Mr Holloway’s youth and immaturity, which indicate a lack of premeditation.11
10 New Zealand Police v Holloway, above n 1, at [4].
11 Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [18].
[26] Mr Walker also submits that there is a very notable and contextual factor which was not taken into account. On 9 July 2016, prior to the present offending, Mr Holloway unlawfully took his grandfather’s motor vehicle. He was younger than
17 at the time and so the Youth Court had jurisdiction. (He committed the present offending on 18 September 2016, just after he turned 17.)
[27] After Mr Holloway committed the present offending, he undertook counselling and community work that he had been directed to perform as a result of the earlier youth offending. Mr Holloway completed the required 50 hours of community work and 6 sessions of alcohol/drug counselling through SHINE. Around November 2016, Mr Holloway also began a six-month carpentry course through the Salvation Army, which was completed by the time of sentencing for the present matter on 21 July 2017.
[28] Mr Walker submits that Mr Holloway’s rehabilitative efforts go a long way to off-setting the need for any conviction. Mr Walker considers that this is endorsed by the fact that the Youth Court age is to be lifted in 2019 to 18 years of age. If this matter had occurred under such jurisdiction, the charges would not have been dealt with by way of conviction.
[29] First, I concur with Judge Thomas that the starting point is that the offending is reasonably serious, for the reasons he gave. I highlight in particular the fact that there were numerous punches to the head, which is a vulnerable part of the body to strike. Mr Ali was also vulnerable by virtue of his occupation, and has and will continue to suffer psychological harm from Mr Holloway’s actions for some time.
[30] Second, while I accept Mr Walker’s submission that Mr Holloway’s actions were impulsive and not premeditated, a finding supported by Mr Holloway’s youth, they were prolonged. Mr Holloway punched Mr Ali more than once and stopped only when someone approached to help Mr Ali. He then ran to a private property, eluding Police. I do not consider that Judge Thomas failed to give the impulsivity of Mr Holloway’s actions sufficient weight given the wider context of Mr Holloway’s offending.
[31] Third, I accept that the very recent Youth Court sentence and compliance with it is relevant. I accept that Mr Holloway’s rehabilitative efforts show that he will comply with court orders and that rehabilitation is a viable prospect for him. He can take credit for this. However, as the respondent submits, the penalty that the appellant has served in respect of one set of offending cannot serve as an inoculation against penalty for a different set of offending. The nature of Mr Holloway’s offending is different to that in the Youth Court. This also limits the extent to which this factor is of assistance.
[32] Fourth, I agree that Mr Holloway’s youth is a strong mitigating factor. I refer to the Court of Appeal’s decision in Churchward v R where, for example, the Court held that there are neurological differences between young people and adults which can lead to a reduction in culpability of young people when compared to adults.12
[33] Youth is a relevant mitigating factor when assessing the gravity of the offending. I note that, while the change to the age cap in the Youth Court would treat Mr Holloway more favourably if it were in force at the time he offended, he should be sentenced on the basis of what the law is at present, not what it will be. Nonetheless, I probably would have taken the pending change into account were it not for the nature of the present offending, which is not in the category of youthful waywardness.
[34] In light of all of these points and the other factors relevant to the gravity of the offending that were also considered by Judge Thomas, I do not consider that Mr Holloway’s youth, personal circumstances or history are sufficient to reduce the overall gravity of the offending.
[35] I consider that the gravity of the offending was appropriately categorised as moderate.
12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77] and [81].
The consequences of conviction
[36] Mr Walker submits that Judge Thomas placed no emphasis on Mr Holloway’s
youth when assessing the consequences of conviction.
[37] Mr Walker refers to Amstad v R, where it was noted that the brand of a conviction for young people who do not have a foothold in a career can be permanently damaging.13
[38] The Court in Churchward v R also noted the factor recognised by the England and Wales Sentencing Guidelines Council that convictions may have a disproportionate effect on a young person’s ability to gain meaningful employment and play a worthwhile role in society.14
[39] Mr Holloway’s youth is an important consideration, but no specific concerns have been raised aside from the fact that employers might take a negative view of his convictions, or travel might be difficult.
[40] The Court of Appeal in Edwards v R referred to the need for evidence in order to be “satisfied” with regard to travel or work consequences, and said that a court will not speculate about matters of present fact.15 The Court said, referring in particular to travel:
[24] The court must be “satisfied” that the consequences of conviction are out of all proportion to the gravity of the offence. It is settled law that an applicant for a discharge need only point to a real and appreciable risk that adverse consequences will ensue. That standard recognises that the court is being asked to predict what will happen in the future. So, for example, Mr Edwards need only point to a real and appreciable possibility that he will need to travel overseas for work.
[25] It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require expert evidence if they are not agreed and cannot be established in any other way.
With reference to employment consequences, the Court in Edwards v R also said:
13 Amstad v R, above n 11, at [22].
14 Churchward v R, above n 12, at [78].
15 Edwards v R, above n 5, at [25].
[18] … We do accept that some employers may not be prepared to look beyond the bare fact of a conviction to read what the Courts had to say about its circumstances and mitigating factors, but we are not prepared to assume that all or even most will behave in that way, especially where the offender is generally a person of good character, as in this case. …
[41] Mr Walker referred me to R v Latimer,16 but in that case it seems there was evidence that Mr Latimer was having difficulty obtaining an apprenticeship with a conviction for burglary, committed when he had only just turned 16, under the influence of an older teenager who had a criminal record. No one was present or physically harmed. (I note also that the offending could have been dealt with in the Youth Court, but for some reason the defendant was not charged until he was 18.)
[42] There is no evidence that has been provided that shows a real and appreciable risk that Mr Holloway will have difficulty obtaining the employment he wants as an apprentice or be unable to travel. The Court is being asked to speculate. Further, I note that Mr Holloway is in fact currently employed at Kmart, seemingly now full-time. He has completed a six-month Salvation Army building course.
[43] I accept, as Judge Thomas did, that obtaining entry to some overseas locations and getting a more meaningful job will be more difficult. A conviction is something that may need to be considered or explained. But, similarly to what Judge Thomas said, that does not mean that all employers will refrain from hiring Mr Holloway in the future, or that he will not be able to secure an apprenticeship.
[44] I consider that the consequences of conviction were properly assessed by Judge Thomas, and that he correctly assessed that while there will likely be greater difficulty for Mr Holloway in gaining employment or travelling overseas, the consequences are not so serious as to prevent Mr Holloway from doing either.
Are the consequences out of all proportion to the gravity of the offending?
[45] The issue at this stage is to weigh the offending and Mr Holloway’s personal
circumstances with the consequences of conviction.
[46] The consequences are not out of all proportion to the gravity of the offending. The gravity of the offending was moderate. The consequences to Mr Holloway are no more than those that ordinarily follow conviction. As Toogood J said in Davis v Police, the consequences of conviction here are simply the ordinary consequences of a conviction which has some potential adverse impact on employment (or travel)
prospects.17 The appellant’s youth is relevant, but does not sufficiently tip the
balance for offending of this sort. The answer might well be different, even for just generic consequences to a young person, if the offending were more minor.
Result
[47] I agree with Judge Thomas’ decision to decline the application for a discharge
without conviction.
[48] The appeal is dismissed.
------------------------------------------------------- Hinton J
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