J v Police HC Wellington CRI-2006-085-4031

[2008] NZHC 192

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-085-4031

J

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February 2008

Appearances: V C Nisbet for the Appellant

Judgment:      22 February 2008

JUDGMENT OF CLIFFORD J

Background

[1]      On 30 April 2006 Mr J  , the appellant, was drinking in a Wellington bar with a woman he had just met.  A heated argument ensued.  The woman slapped the appellant in the face.  The appellant was evicted from the bar and the woman left also.   As they were both leaving, the woman turned and said something to the appellant.  The substance of this remark is unclear but the appellant took offence and rugby-tackled the woman to the ground, banging her forehead on the surface of the road.

[2]      Following that incident, the appellant pleaded guilty to one charge of injuring with intent to injure.  He was convicted in the District Court on 28 June 2007, fined

J V POLICE HC WN CRI-2006-085-4031  22 February 2008

$1,000 and ordered to pay $1,670 reparation.  He now appeals against the entry of that conviction on the basis that the consequences of conviction are out of all proportion to the gravity of the offending, and that he should have been discharged without conviction under s 106 of the Sentencing Act 2002.

[3]      The basis for that contention is that the appellant was, at the time of his conviction, a territorial member of the New Zealand Army and hoped to become a permanent member.   It was submitted that a conviction would result in dismissal from the Army, a consequence out of all proportion to the gravity of his offending.

The District Court decision

[4]      Mr J   had argued, at the time of his sentencing in the District Court, that he should be discharged without conviction.   In very careful and considered sentencing notes, Judge Broadmore considered that issue at some length. The Judge had before him a letter from the Army which indicated that the appellant’s service would be up for serious consideration if a conviction was entered.   There was, however, no suggestion that a conviction constituted an absolute disqualification from further service in the Army.

[5]      On the question of the significance of a conviction to Mr J  ’s future in the Army, the Judge commented:

There are two things I want to say about that.   First in relation to your particular circumstances, I would be extremely disappointed if the  army considered that this one blemish in your life to date, coming as it did out of a clear blue sky, should be treated as a disqualification for further service in the army.  I consider on the basis of what I have heard and what I see of you that you have the ability to make a worthwhile contribution to the army.  For my part I would struggle to see why a conviction on this charge should be treated as an overwhelmingly disqualifying factor for an appointment to the regular army.  I think that that would be an unfair outcome.

The second aspect is this.  In general terms I am aware, as most people are I expect, that people in the army are no less subject to getting into trouble with the law from time to time and if the army treated every person who either served with the army or who wished to serve with the army as disqualified because they had a conviction then I would be extremely surprised.  I accept that a conviction would be a hurdle to be overcome but I am not satisfied on the evidence that it is a complete barrier and I accept that you and your counsel have not put it up on that basis.

So, the consequence of a conviction is that you have a hurdle to overcome which you would not otherwise have to overcome in order to secure your employment with the army.  I have to ask myself whether that consequence is out of all proportion to the gravity of the offending.  I regret to say that I have come to the conclusion that it is not …

[6]      The Judge then entered a conviction against the appellant.

[7] Since written submissions were first filed by the appellant in October last year, this appeal has been adjourned on two occasions. Mr Nisbet said in those original written submissions that it had by then been confirmed that, as a consequence of his conviction, the appellant would not be able to join the permanent army, and would be discharged as a territorial. There was, however, some uncertainty, as I understood matters, as to whether the Army had considered the District Court Judge’s comments, referred to at [5].

[8]      Those two adjournments were therefore granted with a view to those matters being brought to the Army’s attention.  That occurred, and the Army has completed its consideration of the appellant’s circumstances.  On the information provided to me, the appellant has now been administratively discharged.

[9]      This appeal, therefore, involves a consideration of the District Court decision, as originally made and, to the extent appropriate, those subsequent events.

The Appeal

[10]     In support of this appeal, the appellant accepts that his offending was serious, and that there was no excuse for his conduct on the night in question.  He points to some element of provocation on the part of the complainant, but nevertheless says that he accepts full responsibility for his behaviour.  It was, he submits, a serious but momentary error of judgment on his part.   He is willing to pay reparation to the complainant  for  the  emotional  harm  his  actions  caused,  and  has  taken  steps  to address his issues with alcohol and violence.  Given these positive steps, he submits that a conviction, which prohibits him from pursuing the career he has been working towards, would be out of all proportion to the gravity of his offending.

[11]     The Crown in reply says that the District Court Judge made a careful and proper assessment of the relevant considerations.  The Judge weighed the seriousness of the offending against the possibility that the appellant might be dismissed from the Army, before finding that a discharge without conviction was not appropriate. There was no error in this exercise of discretion, particularly as there was at that time no evidence before the Court to show that the appellant would be denied entry into the Army because of this conviction.  The Crown further submits that, even if it can now be shown that the appellant has been denied a career with the Army, this is not a consequence out of proportion to the gravity of the offending.   The offending involved a serious act of violence against a smaller victim, and there must be an aspect of denunciation and deterrence in the sentence imposed.

Discussion

[12]     The decision of the District Court Judge not to grant a discharge without conviction involved the exercise of a discretion.  This Court may only interfere with such a decision if the Judge was plainly wrong, failed to consider a relevant consideration or considered an irrelevant one.

[13]     When the information available to the Judge is taken into account, there is nothing to suggest that his refusal to grant the discharge was plainly wrong or that he failed to consider a relevant consideration.   At the time of sentencing the Judge recorded his understanding at [22] as follows:

… the consequence of a conviction is that you have a hurdle to overcome which you would not otherwise have to overcome in order to secure your employment with the army.  I have to ask myself whether that consequence is out of all proportion to the gravity of the offending.  I regret to say that I have come to the conclusion that it is not.  The offending was serious, as you have accepted.  It had adverse consequences for the complainant.  The nature of the charge is such that I do not think it justifies a discharge without conviction.

[14]     On that basis, there would in my view be no  grounds  for  this  Court  to interfere with the decision.

[15]     Since the appellant was sentenced, his position has been considered by the Army.   On the basis of the material available to this Court, comprising copies of various internal NZ Army records provided by Mr Nisbet, the position would appear to be as follows.

[16]     A minute of 17 August 2007 records a recommendation that Mr J   be released from service.   In addition to basing that recommendation on the serious nature of the charge Mr J   faced, and his subsequent conviction, that memorandum also noted that earlier reports had referred to Mr J   “becoming frustrated when things didn’t go according to plan” and an associated tendency to voice disdain.   That tendency, according to this report, had been an identified behavioural trait dating back to recruit initial training, where Private J  ’s course reports identified his tendency to become argumentative with superiors, respond poorly to constructive criticism and voice his opinions in an inappropriate manner.

[17]     It was following the receipt of that minute that this appeal was first adjourned to enable the Judge’s sentencing notes to be brought to the Army’s attention.

[18]     A memorandum of 29 November sets out the background to the Army’s consideration of Mr J  ’s position.  That memorandum was clearly prepared after the receipt of Judge Broadmore’s sentencing notes, and submissions from Mr J   himself.  The memorandum explicitly quotes the Judge’s remarks, referred to  at  [5],  and  the  Judge’s  acknowledgement  in  his  sentencing  notes  of  the genuineness of Mr J  ’s remorse.

[19]     The 29 November memorandum, apparently prepared for consideration of Mr J  ’s position by superior officers, recommended that his service be discontinued.  The writer of the memorandum recorded the following comment:

Pte J  , by his actions, has brought into question his retention in the Army … [he] does not display the qualities and attributes required of a service member, therefore it is recommended that he be immediately admin discharged…

[20]    The memorandum also contained recommendations for certain actions if retention was approved.   A second officer, who appears to have considered that memorandum in the first instance, recommended retention of Mr J   in the Army, as this was a first offence.  Subsequently, the memorandum would appear to have been considered by a more senior officer who, having reviewed all the supporting documentation, considered that it was time for the Army to part company with Private J  .

[21]     That officer recorded his view that Mr J   posed an unnecessary risk to the Army and also recorded the following view:

I am mindful of the fact that an SNCO was recently retained following a serious (domestic related) assault charge, but Private J  ’s letter of “mitigation” indicates some deeper personality issues that may cause  us problems in the future.

[22]     That comment was dated 4 December.

[23]     Finally,  it  would  appear  that  the  senior  officer  ultimately  responsible approved Private J  ’s administrative discharge on 11 December 2007.

[24]     Those materials were not available to the District Court Judge.  At this point, and before I consider the relevance of those materials, it is appropriate to note that Mr J   wrote to the Army on two occasions.  He provided me with copies of those letters.  In particular, in a letter of 12 July 2007 he set out detailed submissions as to why he should not be released from service by the Army.   In that letter he disputed, on a variety of grounds, the critical comments made regarding his character and  service  history  which  I  have  referred  to  above.    He  contended  that  those criticisms were without proper foundation, and not reasonable.  He also contended that more favourable comments regarding his service history had been overlooked. Clearly, this Court is not in a position to resolve any controversy between the Army and Mr J  .  Nor is the role of this Court to in any way review the decision made by the Army regarding Mr J  ’s retention and service.  It is appropriate, however, to record that as in most situations of this nature there are two sides to the story.

[25]     Pursuant to s 121(3)(b) of the Summary proceedings Act 1957, this Court is authorised to vary a sentence if “satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence”.  Discussing that provision in Lee v Police High Court AK 27 July 2005, France J said (at [16]):

I have little difficulty in reading personal history broadly so as to encompass material that addresses the effects of a conviction on an accused.  The Court of Appeal in R v O’Neil CA117/02 27 June 2002, confirmed that s 123(1)(b) is to be interpreted “in a flexible way … in relation to the new material that can be received on any appeal against sentence.

[26]     The new material, reflecting as it does the consideration by the Army of the consequences of conviction upon this appellant, should be taken into account in the determination of this appeal.

[27]     The question in this appeal is really whether the new information, in the words of s 107, satisfies this Court that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.   I do not consider that it does.

[28]     A careful consideration of those materials shows that the Army did not react solely to the fact of Mr J  ’s conviction.   In deciding to discharge Mr J  , those responsible for this decision considered the nature of the offence to which he had pleaded guilty and the comments in Judge Broadmore’s sentencing notes.  The final decision, however, also relied on unsatisfactory aspects (from the Army’s  perspective)  of  Mr  J  ’s  service  history  and  personality.     His discharge was not, therefore, simply a result of his conviction.

[29]     Mr Nisbet suggested that, were this appeal to be allowed, the Army would – at least – have to reconsider its decision regarding Mr J  .  It is not clear to me that is necessarily a relevant consideration for this Court.   Judge Broadmore’s favourable comments have already been considered, and a decision made.  The legal issue here is the question raised with reference to s 107, that is whether the consequences of a conviction are out of all proportion to the gravity of the offending. That is the issue I have to focus on.

[30]     There  is,  moreover,  considerable  merit  in  the  Crown  submission  that  a discharge without conviction is plainly not appropriate for violent offending which results  in  the  kind  of  injuries  the  complainant  suffered  here.    In  addition,  the appellant was not a permanent member of the Army and conviction has not therefore resulted in the loss of a position of employment and the hardship consequent upon that.  Further, he is still of a young age and capable of adapting to other forms of employment.   A conviction will certainly make that more difficult but that is an inevitable consequence of offending of this type and cannot be said to be out of proportion to the gravity of the offence.  In that regard, I again refer to the decision in Lee (above) where France J said (at [25]):

In general, offending will always impact on future job prospects, and experience suggests one must be wary of over-stating the effects of a conviction in that regard.   Whilst inhibiting in some areas, it seldom approaches the level of being anything like an absolute bar.

Conclusion

[31]     Having considered the new information, I am of the opinion that discharge from the Army was not simply a consequence of the entry of a conviction.  It was a consequence of a careful consideration by the Army of the offending to which the appellant pleaded guilty, and of other aspects of the appellant’s character and service history.

[32]     In those circumstances, I do not think that discharge from the Army can be relied on to establish that the consequences of Mr J  ’s conviction are out of proportion to the gravity of his offending.

[33]     For that, and the other reasons set out above, this appeal is dismissed.

“Clifford J”

Solicitors:         Val Nisbet, Wellington for the appellant

Crown Solicitor, Wellington for the respondent