Hughes-Watford v Police

[2021] NZHC 2373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000359

[2021] NZHC 2373

BETWEEN

TYRONE HOANI HUGHES-WATFORD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	7 September 2021
Counsel:	GD Burns for Appellant J Lee for Respondent
Judgment:	10 September 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 10 September 2021 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. GD Burns, Auckland.

HUGHES-WATFORD v POLICE [2021] NZHC 2373 [10 September 2021]

The appeal

[1]    Tyrone Hughes-Watford struck his partner to the face; applied pressure to her neck; and unlawfully possessed a knife. Judge J M Jelas imposed 12 months’ intensive supervision and declined to discharge Mr Hughes-Watford without conviction.1 He appeals in relation to the latter.

Background

[2]    The offending occurred 19 February 2020. Mr Hughes-Watford and his partner had  been  arguing  throughout   the   day.   He  punched  her  arm,  then  face.2 Mr Hughes-Watford then “grabbed the victim around her neck squeezing so hard that she  was  unable  to  breathe  for  approximately  five  seconds”.3  Police  arrived.   Mr Hughes-Watford had a large kitchen knife “concealed down his pants”.4 He exercised his right to silence.

[3]    Police promptly laid charges of assault on a person in a family relationship;5 intentionally impeding breathing;6 and unlawful possession of an offensive weapon.7 On 3 July 2020, Mr Hughes-Watford pleaded guilty. The weapon charge was amended to a less serious one.8

[4]    Mr Hughes-Watford completed a family violence programme. He attended approximately eight sessions of a rehabilitative course in relation to alcohol and cannabis; and offered to meet the victim to apologise. He was 18 when he committed the offences and without a formal criminal record. I say “formal criminal record”, for, on 1 May 2018, Mr Hughes-Watford was discharged in the Youth Court in relation to an offence of wounding with intent to cause grievous bodily harm committed

1      Police v Hughes-Watford [2021] NZDC 13247.

2      The summary of facts says Mr Hughes-Watford struck the victim “with a closed fist” to the arm and face. I treat each as a punch.

3      Summary of facts, p 2.

4      Summary of facts, p 2.

5      Crimes Act 1961, s 194A; maximum penalty of two years’ imprisonment.

6      Crimes Act, s 189A(b); maximum penalty of seven years’ imprisonment.

7      Crimes Act, s 202A.

8      Summary Offences Act 1961, s 13A; maximum penalty of six months’ imprisonment.

18 June 2017.9 Mr Hughes-Watford acknowledged wounding an elderly man, with a knife, in the victim’s home.

Principle

[5]    A Court may discharge a defendant without conviction if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.10 The Court first assesses offence gravity, which includes both aggravating and mitigating factors. The Court next assesses direct and indirect consequences of conviction. It then asks whether these would be out of all proportion to the gravity of the offence. If so, the Court has a residual discretion to discharge without conviction. An appellate Court must be persuaded the Court below was wrong; but reach its decision on its own view of the case.11

The Judge’s decision

[6]    The Judge considered the gravity of the offending “within the middle of the moderate range”.12 She accepted conviction attracted “real and appreciable” risks,13 but did not think these disproportionate to the gravity of the offending. She dismissed the application for this reason.

Argument and analysis

[7]    On behalf of Mr Hughes-Watford,  Mr  Burns  contends  the  Judge  erred.  Mr Burns says the most serious offence—impeding breathing—“was short in duration” and involved “no loss of consciousness” or injury. The Judge was therefore wrong to conclude the gravity of the offending was moderate, particularly given mitigating features.

9      Oranga Tamariki Act 1989, s 282. Mr Burns says this offence was committed when the victim attempted to bundle Mr Hughes-Watford out of his home. I assume this characterisation is available.

10 Sentencing Act 2002, s 107.

11 R v Taulapapa [2018] NZCA 414 at [18], citing H (CA680/2011) v R [2012] NZCA 198

at [35]-[36].

12 Police v Hughes-Watford, above n 1, at [15].

13 At [19]–[20].

[8]    As to these, Mr Burns highlights Mr Hughes-Watford suffered several instances of trauma to the head when he was younger, including while playing rugby June 2014. Reports in relation to Mr Hughes-Watford describe behavioural changes thereafter, including aggression (for example, punching a fist through an internal door); trouble with Police; depression; and possible suicide attempts. Mr Burns also highlights the defendant’s difficult background, which appears to have included family violence and Irlen syndrome, a disorder compromising vision (often with educational consequences).

[9]    Mr Burns also contends the Judge erred in relation to the likely effects of conviction because:

The appellant is a young Māori man who is yet to gain a foothold in a career and already faces considerable impediments in the way of psychiatric disorders, the effects of a significant head injury, no formal education and a background of adversity and disadvantage. A criminal conviction will create a further barrier for the appellant when he applies for jobs in the future.

[10]   There are five difficulties with these arguments despite their attractive presentation.   First, that the offending could have been worse does not put it, as    Mr Burns submits, “at the very bottom of the scale”. Impeding breathing is an inherently serious offence, hence its maximum penalty of seven years’ imprisonment. The offending constituted family  violence.  It  involved  a  breach  of  trust.  That Mr Hughes-Watford had a knife on him (at least when Police arrived) is concerning. That he committed serious violence in 2017 is aggravating, irrespective of the precise circumstances of that incident.14

[11]   Second, while several factors mitigate the gravity of the offending, no unequivocal causal nexus connects it to Mr Hughes-Watford’s head injuries. The record contains several reports, including two from the Waitemata District Health Board dated 15 May and 30 June 2020. The most careful and comprehensive report (by far) is from James Cunningham, a neuropsychologist. His report was made 2015. Mr Cunningham concluded the defendant was “of most likely average range intellectual  ability”,  albeit  “compromised  by  poor  Verbal   Comprehension  Index

14     R v Putt [2009] NZCA 38 at [18] and R v Rongonui [2009] NZCA 279, [2010] 1 NZLR 742 at [88].

See also fn 9.

abilities”. Testing implied “learning difficulty secondary to Irlen syndrome rather than traumatic brain injury per se”. Mr Cunningham added “changes in behaviour” could be related to the “index injury event”. However, he concluded Mr Hughes-Watford “is cognitively intact and I suspect his residual difficulties are more of an emotional psychiatric nature than physical symptoms”.

[12]   Third, and as Ms Lee observes for the respondent, the Court of Appeal has held employment-related consequences “must normally yield to the employer’s right to know”.15 This principle “applies to all offenders for whom convictions are recorded, including the young”.16

[13]   Fourth, Mr Hughes-Watford has employment. He works for an asbestos removal and demolition company.17 The Judge said there was “no suggestion his … employment would be placed in jeopardy by the entry of convictions”, and the defendant “enjoys the ... work”.18 Mr Burns does not challenge either conclusion.

[14]   Fifth, Mr Burns’ analysis ultimately reduces to the proposition the Judge should have weighted factors differently. But as the Judge said, while conviction could attract some adverse consequences, Mr Hughes-Watford’s employment “is most likely to be determined by his performance in his present (and past roles) and any additional future training”.19 The sentiment has application to Mr Hughes-Watford’s future more generally. Moreover, the obvious should not be overlooked: the decision to convict Mr Hughes-Watford was made in the context of a rehabilitative approach to sentencing notwithstanding the presence of reasonably serious violence.

15     R v Taulapapa [2018] NZCA 414 at [42](a).

16     At [42](a).

17     Before this, he worked for a rubbish truck company.

18     Police v Hughes-Watford, above n 1, at [17].

19 At [20].

Result

[15]The appeal is dismissed.

……………………………..

Downs J