I v Police

[2013] NZHC 2925

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202

CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000273 [2013] NZHC 2925

BETWEEN  NI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   5 November 2013

Appearances:           J Harder and Ms Kemp for Appellant

E Rutherford for Respondent

Judgment:                6 November 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 6 November 2013 at 3.00 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Public Defence Service, Auckland

Crown Solicitor, Auckland

NI v NZ POLICE [2013] NZHC 2925 [6 November 2013]

Introduction

[1]      Mr I pleaded guilty in the District Court at Auckland to one charge of assault on a child.   On 6 September 2013 Judge G A Fraser declined his application for discharge without conviction, convicted him and imposed a sentence of 100 hours community work and nine months supervision.1     Mr I appeals against  both the decision to convict him and also against the sentence.

Background

[2]      On 28 November last year Mr I and his daughter Z, were at his mother’s

address.  Z was aged four at the time.

[3]      Mr I came out of the bedroom and told Z, who was sitting at the dining table, that it was time to go home.  Z began to cry.  This enraged Mr I.  He leant over the table and slapped Z across her right cheek with the back of his right hand.   The backhand was forceful enough to knock Z off her seat and cause her to fall to the ground.  Z got up and stood behind her aunt, who was also present.  The appellant approached Z and slapped her again to the back of her left shoulder using his open right palm. The aunt then took Z to the car.

The District Court judgment

[4]      In declining the application for discharge without conviction Judge Fraser was of the view this was a serious assault, not low-end domestic violence.   The Judge noted there was a significant breach of trust and a fundamental breach of the parental  relationship.    He  also  noted  there  were  two  strikes,  one  he  saw  as particularly serious.  He said the offending was stopped by others.

[5]      The Judge was not satisfied that the direct and indirect consequences of conviction  would  be out  of all  proportion  to  the gravity of the offending.    He

declined the application for discharge without conviction.

1      NZ Police v NI DC Auckland CRI-2012-004-019040, 6 September 2013.

[6]      The Judge then imposed sentence as follows:

[12]     Giving you credit for lack of previous of a similar nature and your guilty plea at a relatively early time, you are convicted and sentenced to 100 hours’ community work.  You will do nine months’ supervision.  You will attend courses, counselling, and/or programmes for any identified need as directed by the Probation Service.

The submissions

[7]      Mr Harder submitted the Judge was wrong to categorise the offending in this case as a serious assault.   He submitted the Judge was also wrong to suggest the offending was stopped by others as that was not supported by the summary.

[8]      Having regard to the authorities discussed in the case of Solomon v Police2

Mr Harder stepped back from the concession in his written submissions that the assault could be categorised as a moderately serious one.

[9]      Mr Harder challenged a submission made on behalf of the Crown that the appellant was required to demonstrate there was a real and appreciable risk that any identified consequences would occur.  He referred to the decision of Police v SR and particularly Woodhouse J’s rejection of a similar submission.3

[10]     Mr Harder referred to the approach approved by the Court of Appeal in Z v R4 and submitted that, when the factors relating to the offending and the appellant were taken into account, together with the consequences of the conviction, the consequences were out of all proportion to the gravity of the offence.

Discussion – discharge without conviction

[11]     I adopt the approach approved by the Court of Appeal in Z v R.5     When considering the gravity of the offence in terms of s 106, the Court should consider all

the aggravating and mitigating factors relating to the offending and the offender.

2      Solomon v Police HC Wanganui CRI-2010-483-63, 3 December 2010.

3      Police v SR [2013] NZHC 980 at [11]. See also Nash v Police HC Wellington CRI-2009-485-

000007, 19 May 2009 at [19];  and Vaipo v Police HC Auckland CRI-2011-404-141, 27 July

2011 at [19]-[21].

4      Z v R [2012] NZCA 599.

5 At [27].

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 (in s 107) although as the Court of Appeal said in Blythe v R6 it will be a rare case where a court will refuse to grant a discharge in such circumstances.

[12]     In this case the relevant aggravating and mitigating factors of the offending are that this was a physical assault by Mr I on a four year old girl who, as his daughter was entitled to be protected by the appellant rather than assaulted.  There were two strikes, both with an open hand, although the first blow with the back of the hand was sufficiently forceful to knock Z off the seat she was on.  Also the first blow was to her face.   There is, however, no suggestion of any ongoing physical harm and no evidence or suggestion of any psychological effect on Z as a consequence of the assault.  I also accept Mr Harder’s submission that the Judge’s finding the offending was stopped by others was not supported by the summary of facts.

[13]     I  turn  to  consider  the  aggravating  and  mitigating  factors  relating  to  the offender.  There are no aggravating features applying to Mr I.  Mr I has no relevant previous history of any kind.  This was his first offence of violence.  Mr I has been extremely remorseful, which is confirmed by the affidavit sworn by his partner, Ms M and by the positive steps he has taken to address the issues disclosed by the assault.  He has completed a 20 week Living Without Violence programme at Man Alive. The appellant had completed that course prior to sentencing.

[14]     I do not overlook Mr Harder’s submission the appellant had some issues with the summary of facts but chose not to take the matter to a disputed fact hearing to protect Z.  There is force, however, in Ms Rutherford’s submission for the Crown that that is adequately recognised by the credit given for the appellant’s very early

guilty plea and the acknowledgement he was genuinely remorseful.

6      Z v R citing Blythe v R [2011] NZCA 190 at [13].

[15]     In my judgment the assault can properly be regarded as a moderately serious assault because it was a hard slap to the face of the four year old child in the defendant’s care with sufficient force to knock her off the chair.  However, in fixing the gravity of the offence overall, I take into account there was no long-term injury and also the positive mitigating factors of Mr I.

[16]     It is then necessary to consider the consequences, both direct and indirect, of conviction for the offender.  In my judgment Mr Harder has overstated the effect of Woodhouse J’s decision in Police v SR.  The important passage in that decision is at [11] where the Judge rejected the Crown submission that there must be specific consequences beyond what might be described as the general effect of the fact of a conviction.  It must be right that the general effect of the fact of the conviction is a consequence of conviction.

[17]     Mr Harder accepted that Judge Fraser properly identified the consequences in this case as the stigma, loss of self esteem, loss of pride and embarrassment which Mr I will have to carry for the rest of his life.  There is for example, no issue about an effect on employment or travel.  The issue is whether those consequences, when balanced against the gravity of the offence (having regard to both the circumstances of the assault and the appellant’s circumstances), mean that a conviction will be out of all proportion.  The use of the expression “out of all proportion” implies that there must be a significant disproportion of consequence in relation to the gravity of the

offence before a Court will be justified in exercising the discretion to discharge.7

[18]     In the context of this case it could not be said that the consequences identified are out of all proportion to the gravity of the offence.  The appeal against conviction must be dismissed.

Discussion – sentence appeal

[19]     Mr Harder submitted that the sentence of 100 hours community work and

nine months’ supervision was manifestly unjust having regard to the above factors. He also referred to the further evidence now before the Court from the appellant’s

7      BC  v  Police  HC  Wellington  CRI-2003-485-101, 2  June  2004;     and  Iosefa  v  Police  HC Christchurch CIV-2005-409-64, 21 April 2005 at [36].

partner Ms M as to the effect the requirement to complete the community work is having on the family.

[20]     Mr Harder submitted the Court should convict and discharge Mr I or order him to come up for sentence if called upon.

[21]    In fixing the sentence of 100 hours community work and nine months supervision the Judge did not identify what starting point he took for the offending. Nor did he explain why the sentence of supervision was required in this case.  Ms Rutherford suggested that that might have been because of the four children in the household but again there is no evidence before the Court of any violence in the past within the household and, as noted, this was a first offence.   Section 20(2) of the Sentencing Act confirms that the Court may only combine community work with a sentence of supervision if satisfied that the offending requires the imposition of standard conditions or any special conditions to address the causes of his offending. In the circumstances of this case where this was a one-off, first offence and Mr I had already attended a 20 week Stopping Violence programme prior to sentence there is no apparent basis to support the imposition of a sentence of supervision.

[22]     Both counsel referred to the case of  Solomon and the selection of cases referred to by the Court in that case.  I have also considered those cases and the other cases counsel referred to.  I have regard to those cases, but each case must turn on its own facts. While I accept that in the circumstances of this case the sentence imposed by the Judge is not sustainable, I am not able to accept Mr Harder’s submission as to the appropriate sentence.  To meet the purposes and principles of the Sentencing Act more is required in this case than a conviction without discharge or a requirement that the appellant come up for sentence if called upon.   I consider the appropriate sentence, which must be a meaningful sentence, to be a sentence of 60 hours community work.

Result

[23]     The appeal against conviction is dismissed.

[24]     The  appeal  against  sentence  is  allowed.     The  sentence  of  100  hours community work and nine months supervision is quashed.                  It is replaced with a

sentence of 60 hours community work.

Venning J