JOSHUA WEDDING AND NEW ZEALAND POLICE
[2024] NZHC 2695
•18 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-358
[2024] NZHC 2695
BETWEEN JOSHUA WEDDING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 September 2024 Appearances:
H C Stuart for Appellant L Seybold for Respondent
Judgment:
18 September 2024
JUDGMENT OF WILKINSON-SMITH J
[Appeal against conviction and sentence]
This judgment was delivered by me on 18/09/2024 at 12pm.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
H C Stuart, Auckland
Meredith Connell, Auckland
WEDDING v NEW ZEALAND POLICE [2024] NZHC 2695 [18 September 2024]
Introduction
[1] Mr Joshua Wedding appeals the decision of Judge A M Manuel declining to grant a discharge without conviction on two charges of common assault.1
[2]Mr Wedding was sentenced to 12 months’ supervision and ordered to pay
$1,000 in emotional harm reparation. He appeals on the grounds that the Judge incorrectly found that the gravity of the offending was moderate, rather than low.
[3] The respondent submits that the District Court Judge did not err in considering the gravity of the offending moderate, and ultimately in declining the application for a discharge without conviction.
Background
[4] At about 10.25 pm on Friday 3 November 2023, Mr Wedding was intoxicated and called a taxi. When the taxi arrived, Mr Wedding entered the vehicle and began harassing the driver. He was asked to leave the vehicle and refused to do so. Mr Wedding began filming the taxi driver who apparently attempted to push the phone away. Mr Wedding then leant forward from the rear passenger seat and punched the taxi driver twice in the face with a closed fist. Mr Wedding then left the vehicle. The taxi driver suffered a swollen cheek, and a sore mouth and jaw.
[5] Mr Wedding is in his late thirties. When he was aged 18, he was granted diversion for wilful damage. When he was in his early twenties in 2008, he was granted a discharge without conviction for disorderly behaviour.
[6] On behalf of Mr Wedding, it is said that he took full responsibility for what occurred in respect of the current offending. He pleaded guilty at an early stage and provided a written apology to the victim. He also made an offer of $1,000 by way of emotional harm reparation and has undertaken counselling, an alcoholics anonymous meeting, completed the “Getting Started” course through Community Alcohol and Drugs Services (CADS) and commenced the “Taking Action” course through CADS.
1 New Zealand Police v Wedding [2024] NZDC 14777; Crimes Act 1961, s 196.
Grounds of appeal
[7] The application for a discharge without conviction was premised on the basis that a conviction would cause issues in relation to Mr Wedding’s work as a marine engineer and with his role as a Royal New Zealand Navy reserve as well as his ability to engage in school activities with his children.
[8] Mr Wedding does not dispute that the consequences of conviction were moderate but says that her Honour’s assessment of the gravity of the offending as also moderate was incorrect, particularly when viewed alongside the various personal mitigating factors.
The approach on appeal
[9] An appeal against a refusal to discharge without conviction is an appeal against both conviction and sentence.2 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. 3 The appellate court must make an assessment of whether a miscarriage of justice occurred. If there is no miscarriage of justice, the court must dismiss the appeal.
[10] 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.4
Discharge without conviction
[11] Section 106 of the Sentencing Act 2002 (the Act) provides 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.
2 Jackson v R [2016] NZCA 627.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Jackson v R, above n 2, at [12].
[12] The approach to determining an application for discharge without conviction is well settled. The court is required to undertake a three-stage assessment.5 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.
[13] 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 rather than the exercise of a discretion.
The District Court decision
[14] Judge Manuel began by setting out the facts and referencing the victim impact statement. The victim, a 53 year old male, stated in his victim impact statement:
Assaults like this impact us negatively and make us not take all jobs, and feel scared all the time. That results in loss of income for [the] next few months. That puts a big burden financially and emotionally on me and my family.
[15] The Judge then considered Mr Wedding’s application for a discharge without conviction. She first set out s 107 of the Act, which states as follows:
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.
[16] Her Honour said that the words “out of all proportion” are the key to decision making.
5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
[17] The Judge then set out Mr Wedding’s personal circumstances, noting that he is in his late thirties and working in the marine industry, having previously been in the Navy. He has young children and a partner who was in Court to support him.
[18] Her Honour then addressed the first stage of the test, namely the gravity of the offending which was assessed as moderate. It was noted that the taxi driver was “just out doing his job” and was “entirely undeserving of what took place”.6 She noted that her role as a sentencing judge was not to solely consider sentencing through the eyes of the defendant and his supporters and family, but also to consider the effect on the victim and the interests of the wider community.
[19] Her Honour then identified the potential consequences of conviction, which included possible difficulties with Mr Wedding’s certification in the marine engineering industry; future travel associated with his work; his role in the Royal New Zealand Navy as a reserve; and participation in his children’s school or sporting activities. Her Honour accepted that there may be a real and appreciable risk as to the renewal of Mr Wedding’s certification as a marine engineer although no actual evidence of this was provided. As for the requirement to travel, it was said that the defendant has travelled extensively in the past and may be travelling to Italy, Australia, or the Mediterranean in the future. The Judge noted the police submission that potential problems with travel overseas have often been viewed by the courts as a universal consequence of a conviction.
[20] Drawing the threads together, her Honour assessed the consequences of a conviction as moderate, acknowledging that Mr Wedding will likely be hindered in his business activities and his ability to travel. Her Honour regarded the navel reserve duties and children’s school activities as desirable but not essential and therefore less significant in the assessment of the consequences of a conviction.
[21] Moving to the third stage of the test, weighing the gravity of the offending against the direct and indirect consequences of a conviction, her Honour came to the view that, as the offending was moderate and the consequences also moderate, the test of “out of all proportion” was not satisfied.
6 Above n 1, at [11].
Discussion
[22] Mr Wedding argues that the gravity of the offending should have been assessed as low, and that, because the consequences of a conviction had been assessed as moderate, that would mean that the consequences were out of all proportion to the gravity of the offending.
[23] In my view, it is important to keep the well-settled test in mind rather than becoming overly focused on whether offending is labelled moderate or low. It must be remembered that the test is whether consequences are “out of all proportion” to the gravity of the offending.
[24] However, I note that I agree with the Judge’s assessment that the offending was moderate rather than low level offending. It was, as the Crown says, unprovoked, gratuitous offending aimed at the head. The victim suffered some physical injury, and the effects of the offending directly impacted the victim’s family and his ability to work as he became scared to continue his job. There is also force in the Crown submission that the victim was in a confined space in his own car and was not in a position where he could easily walk away. It is not only the physical injury that needs to be considered but the psychological effect of attacking a taxi driver. It is inevitable that taxi drivers provide a service to people who are intoxicated, and they are entitled to expect that the courts will take an attack on them seriously.
[25] It is to Mr Wedding’s credit that he has taken steps to rehabilitate himself but that must be balanced against the fact that he has twice before been given a chance to escape a criminal record.
[26] I do not find any error in the approach taken by the District Court Judge, who clearly identified the correct test and carried out the appropriate assessment. Mr Wedding relies primarily on a submission that the gravity of the offending was lower than the Judge found. I am unable to agree with that submission. Any attack to the head is potentially serious and, in this case, there were two punches to the head. The seriousness is aggravated by the fact that the attack was to a taxi driver in his own vehicle. The charge itself was a charge of common assault, but the offending could have justified a more serious charge such as assault with intent to injure or assault with
reckless disregard. I do not regard the offending as a low-level example of common assault.
[27] Although the appeal was not brought on the basis that the Judge’s assessment of the consequences was incorrect, it is nevertheless for this Court to consider the matter in its entirety in order to identify whether there has been any material error in entering a conviction, or a miscarriage of justice has otherwise occurred.7
[28] Looking at the consequences identified, they are really 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.
[29] Further, although the previous diversion and discharge without conviction were some time ago, Mr Wedding has been given chances on two previous occasions. The current offending represents an escalation and was violence aimed at an entirely innocent third party working in a job that made him vulnerable to drunken abuse. I do not find that the consequences of conviction are out of all proportion to the gravity of the offending. A person who punches a taxi driver in the head can expect a conviction for common assault unless there are consequences that really are out of all proportion, and general concerns about travel do not meet the test.
[30] It is also well established that it is not appropriate for a court to “airbrush” conduct which any employer should be entitled to be aware of in order to make its own fully informed judgment.8 Allowing the entry of a conviction to be avoided in order to prevent a professional body becoming aware of matters that might be relevant to whether a person meets the standards required of the profession is not appropriate. In any event there was no evidence of actual impediment to Mr Wedding’s certification, merely an unspecified concern that such might be the case.
7 Gaunt v New Zealand Police [2017] NZCA 590 at [9]; and Jackson v R [2016] NZCA 627 at [12].
8 Knight v New Zealand Police [2024] NZHC 2011 at [52].
[31] 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
[32]The appeal is dismissed.
Wilkinson-Smith J
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