JANISE HABERSHON AND NEW ZEALAND POLICE
[2024] NZHC 2752
•24 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-371
[2024] NZHC 2752
BETWEEN JANISE HABERSHON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 September 2024 Appearances:
A Madsen for Appellant P Philpott for Respondent
Judgment:
24 September 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 24/09/2024 at 10 am Registrar/Deputy Registrar
…………………………………
Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland
HABERSHON v NEW ZEALAND POLICE [2024] NZHC 2752 [24 September 2024]
Introduction
[1] Ms Janise Habershon appeals the decision of Judge K J Glubb1 declining to grant a discharge without conviction on one charge of assault with intent to injure.2
[2] Ms Habershon was convicted of assault with intent to injure and sentenced to 80 hours of community work, an emotional reparation payment of $300 and six months’ supervision. As a term of that supervision, she was ordered to undertake and complete such treatment, counselling or programmes as directed by the probation officer.
[3] Ms Habershon also pleaded guilty to two charges of driving with excess breath alcohol and sentenced to 60 hours of community work and six months’ supervision to be served concurrently with the 80 hours imposed for the assault with intent to injure.3
[4] Ms Habershon appeals against the conviction on the assault with intent to injure charge on the basis that the District Court erred by overstating the gravity of the offending and by underestimating the consequences a conviction would have on Ms Habershon.
[5] The respondent submits that the District Court Judge did not err in the assessment of the offending and says that the only consequence that can be identified with any specificity is an intention on Ms Habershon’s part to potentially enrol in a nursing course. The respondent says that the relevance of a conviction to the Nursing Council of New Zealand’s assessment of fitness to be registered as a nurse is a consideration which, at best, is several years away. The respondent also says that the potential for a conviction to impact an application for registration as a nurse is not a consequence that is out of all proportion to the gravity of the offending.
1 New Zealand Police v Habershon [2024] NZDC 16912.
2 Crimes Act 1961, s 193. Maximum penalty: three years’ imprisonment.
3 Land Transport Act 1998, s 56(1). Maximum penalty: three months’ imprisonment or a $4,500 fine, and disqualification from holding or obtaining a driver licence for at least six months.
Background
[6] On 1 October 2023, the victim of the assault was at a nightclub in Auckland. Ms Habershon was at the same nightclub. She and the victim were known to each other, and Ms Habershon believed that the victim was involved with her former partner. Ms Habershon had confronted the victim over social media and in person previously.
[7] At 4 am on 2 October 2023, the victim and her friends left the nightclub and waited on Fort Street for a taxi. While waiting at the intersection, the victim saw Ms Habershon staring at her from a few metres away. Ms Habershon approached the victim and attempted to start a fight with her. The victim ignored Ms Habershon until, without warning, Ms Habershon punched the victim once to the left side of her head with a closed fist. Friends of the victim attempted to keep Ms Habershon away, but Ms Habershon was able to punch the victim again to the left side of her head. The victim and Ms Habershon were separated briefly before Ms Habershon pushed through the gathered crowd and attacked the victim again. Ms Habershon lashed out at the victim trying to hit her in the head before grabbing her by the hair and pulling. Ms Habershon refused to let go of the victim’s hair for over 10 seconds, including after nightclub security staff became involved. Once the pair were separated, Ms Habershon made several more attempts to push back through the security staff to attack the victim but was stopped and held back.
[8] As a result of the assault, the victim suffered concussion, and bruising to her left eye. Ms Habershon initially stated to police that it was a fight between herself and the victim, but CCTV footage revealed that the victim did not fight back or make any attempts to be aggressive towards Ms Habershon.
[9] At the time of the offending Ms Habershon was a first offender, however she now has two convictions for driving with excess breath alcohol which were dealt with at the same time as the charge of assault with intent to injure. At the time of the offending Ms Habershon was aged 21.
Grounds of appeal
[10] It was submitted that the consequences of a conviction for Ms Habershon include the blackening of her otherwise unblemished record and the inevitable impediment that a conviction would hold for her future career prospects. It was submitted that the consequences are heightened by her “very young age”, and the fact that she has not yet secured a foothold in her intended career path and the precise manifestation of her career path is yet to be confirmed. Ms Habershon’s counsel, Ms Madsen, said that a conviction for violence poses a real and appreciable risk to Ms Habershon’s future ambitions to obtain employment as a nurse. While Ms Habershon is not yet in a position to apply for a job in that field, she plans to enrol in study towards a nursing degree in the future.
[11] It was accepted by Ms Madsen that there is no available evidence before the Court to confirm that the conviction would prevent or impede Ms Habershon’s prospects of securing employment. It was submitted that this is because Ms Habershon has not yet meaningfully engaged in employment due to her young age and particular personal circumstances.
[12] Ms Habershon also says that the general consequences to her ability to obtain employment, and her shame and embarrassment at having to disclose the conviction to her family, tertiary institutions and future employers is a significant consequence. It is also said that Ms Habershon has family overseas in Australia and is passionate about going on an “overseas experience”. It is said that a conviction will be an obstacle to her travel plans.
The approach on appeal
[13] An appeal against a refusal to discharge without conviction is an appeal against both conviction and sentence.4 The appeal proceeds by way of rehearing, and it is for the appellate court to make its own assessments as to whether the criteria for discharge without conviction are met.5 The appellate court must make an assessment of whether
4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
a miscarriage of justice occurred. If there is no miscarriage of justice, the court must dismiss the appeal.
[14] In the context of a discharge without conviction, a miscarriage of justice means a “material error” or that the judge “erred in applying the principles” for discharging an offender without conviction.6
Discharge without conviction
[15] Sections 106 and 107 of the Sentencing Act 2002 provide that a court may discharge an offender without conviction following a plea or finding of guilt where the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
[16] The approach to determining an application for discharge without conviction is well settled. The court is required to undertake a three-stage assessment.7 The court must:
(a)assess the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identify the direct and indirect consequences of a conviction; and
(c)determine whether those consequences are “out of all proportion” to the gravity of the offending.
[17] If the statutory criteria are made out, the court retains a residual discretion as to whether to discharge an offender without conviction, albeit this discretion is rarely exercised. The proportionality assessment in s 107 involves judicial evaluation of facts rather than the exercise of a discretion.
6 Jackson v R, above n 4, at [12].
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
The District Court decision
[18] Judge Glubb said, in relation to the aggravating factors of the assault, that there was a degree of premeditation although the offending was described as somewhat opportunistic. The Judge noted the extent of the violence, Ms Habershon’s persistence in the violence and the fact that it was an attack to the head with multiple punches.8 The Judge did not have a victim impact statement but said that the impact upon the victim could be readily appreciated given the injuries suffered, namely a black eye and concussion. In terms of the gravity of the offending, the Judge placed it in the upper/moderate seriousness level.9 The Judge turned to consider the application for discharge and correctly set out the test for discharge without conviction.
[19] Having set the starting point for the offending at the upper/moderate seriousness level, the Judge then factored in mitigating factors including Ms Habershon’s guilty plea, her age at the time, remorse, letter of apology and the fact she had completed rehabilitation programs and undertaken counselling. The offer of emotional harm reparation was also noted, as was the fact that the amount of emotional harm reparation had been presented to the Court in cash.10
[20] Taking into account the mitigating factors, the Judge reached the view that the assault offending was in the low/moderate range.11
[21] Turning to the second stage of the assessment, the Judge then looked at the direct or indirect consequences of a conviction. The Judge noted that Ms Habershon was not currently employed but wanted to commence a course of study towards a Bachelor of Nursing at MIT.12 The Judge noted that Ms Habershon would like to be able to travel and is worried that a conviction for assault with intent to injure would impact her ability to get a visa or work overseas.13 The Judge was not satisfied there would be such a barrier to travel, but accepted Ms Habershon’s submission that there
8 New Zealand Police v Habershon, above n 1, at [10].
9 At [11].
10 At [15].
11 At [16].
12 At [17].
13 At [18].
might well be some shame and embarrassment that would arise as a consequence of a conviction.14
[22] The main issue was whether there was a real and appreciable risk that a conviction for assault with intent to injure would impact Ms Habershon’s ability to undertake a nursing career. The Judge came to the conclusion that that was a consideration for another day. Ms Habershon has a full course of study to undertake, and considerable time will pass before there will be any need to consider whether she meets the criteria for admission to the profession. The Judge said that it was not for him to second guess that assessment. His Honour was not satisfied that there was a real and appreciable risk that the conviction would be a barrier to entry to nursing with appropriate recommendations and other efforts put in.15
[23] The Judge came to the conclusion that the potential consequences of conviction were not out of all proportion to the gravity of the offending.16
Discussion
[24] Ms Madsen, on behalf of Ms Habershon, argued that the overall gravity of offending was not assessed in light of the steps Ms Habershon took following the offending, namely completion of a Community Alcohol and Drug Services course and anger management course. She also argued that the Judge did not consider Ms Habershon’s remorse, emotional harm reparation, previous good character and mental health assistance.
[25] I do not accept that submission. With the exception of Ms Habershon’s previous good character, the Judge referred to all of the matters raised by Ms Madsen.17 Clearly consideration was given to those matters and the Judge acknowledged them by reducing the assessment of the offending from upper/moderate to low/moderate in seriousness.18
14 At [19].
15 At [20].
16 At [21].
17 At [15].
18 At [11] and [16].
[26] Ms Madsen refers to the case of Wells v New Zealand Police where a discharge without conviction was granted on appeal for a similar assault.19 That case however involved a situation where the appellant had assaulted a victim who was causing one of her cousins to try to harm himself in circumstances where the cousin had tried to hang himself some time before the assault. Furthermore, approximately three years earlier, the appellant had been at secondary school when three students committed suicide within a matter of months, which had created significant trauma. In that case, Duffy J found that the gravity of the offending was low and there was a sound explanation (although no excuse) for why the appellant behaved as she did.
[27] In my view, the Wells case was a particularly tragic situation which can be distinguished from the present situation. In this case, Ms Habershon simply took exception to the victim because she thought she was involved in a relationship with her ex-boyfriend.
[28] As I have previously noted in another decision, it is important to keep the well settled test in mind rather than becoming overly focused on whether offending is labelled in a particular way such as upper/moderate or low/moderate. It must be remembered that the test is whether the consequences are out of all proportion to the gravity of the offending and that is not simply a matter of which label is attached.
[29] I agree with the District Court Judge’s assessment that the offending was moderate rather than low level offending. It involved a sustained and persistent attack with multiple punches, hair pulling and targeting of the head. The victim’s concussion injury is aggravating and demonstrates the level of the violence. It caused real harm to the victim. I also agree that the District Court gave appropriate weight to Ms Habershon’s personal mitigating factors. I accept that Ms Habershon is a young woman, however, she cannot be described as “very young” as her counsel described her.
[30] I also agree that there was no material error in the Court’s assessment of the identified consequences. The primary consequence advanced by Ms Habershon was that her career prospects might be affected. The actual situation however is that
19 Wells v New Zealand Police [2016] NZHC 1235.
Ms Habershon is currently unemployed and has an intention to enrol in a Bachelor of Nursing at some stage in the future. Should Ms Habershon complete her nursing degree and seek registration as a nurse, she will be obliged to disclose convictions to the Nursing Council of New Zealand. She does not have an unblemished record as she will have the two convictions for excess breath alcohol. I agree with the Crown that, while an assault conviction is more likely to be considered as affecting Ms Habershon’s fitness for registration, it is not of itself a disqualifying matter. It is generally not considered appropriate to prevent professional bodies from being aware of matters that may impact upon fitness for membership of the professional body.20 It is for the professional body to consider whether a person who has behaved in the way Ms Habershon has, is nevertheless a suitable candidate for registration. Given the amount of time that would elapse before Ms Habershon would seek registration, I regard any statement that she would face a real barrier to registration as highly speculative.
[31] I do not overlook the submission that a conviction would have a negative impact on Ms Habershon’s mental health. However, the shame and embarrassment which follows a conviction is an inevitable consequence of a conviction. There is no suggestion that the offending was the result of any significant mental health issue at the time. Rather, Ms Habershon took exception to the idea that her ex-partner was involved with another woman.
[32] When I consider the consequences identified, other than the potential effect on any nursing registration, they are the natural consequences of a conviction. Convictions carry, and are intended to carry, negative consequences. Deterrence is one of the purposes of sentencing and a conviction is part of the punitive response to offending behaviour. So far as any effect on future travel, there is no reliable evidence of any concrete plans to travel overseas, nor is there any evidence that Ms Habershon would in fact be prevented from travelling. Unspecified travel plans are unlikely to meet the test for discharge unless the actual offending is at an extremely low level, which this is not.
20 R v Foox [2000] 1 NZLR 641, (1999) 17 CRNZ 216 (CA) at [38]–[39]; and Stewart v New Zealand Police [2015] NZHC 165 at [30]–[31].
[33] I agree with the assessment made by the District Court Judge. The consequences of conviction were not out of all proportion to the gravity of the offending.
Result
[34]The appeal is dismissed.
Wilkinson-Smith J
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