K v Police HC Wellington CRI 2008-485-147

[2009] NZHC 333

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-147

K

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 March 2009

Counsel:         R Brown and J Miller for Appellant

J Webber for Respondent

Judgment:      18 March 2009

JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)

Introduction

[1]      In  the  early  morning  of  Saturday,  27 September 2008,  the  appellant  was drunk in Cuba Street.   She began yelling and abusing the manager of a local laundromat.  When asked to leave she kicked the manager as he ushered her out the door.  The Police were called.  The appellant said she had been previously punched

in the neck and so the Police Officers called an ambulance.

K V NEW ZEALAND POLICE HC WN CRI 2008-485-147  18 March 2009

[2]      The Police went  with  the appellant  to  the hospital.    At  the  hospital  the appellant’s behaviour deteriorated.  She was aggressive and agitated, threw various items and abused the Police.  Those facts gave rise to a disorderly behaviour charge. Because of her conduct the hospital staff refused to see her.  She was arrested.  She resisted the arrest by physically struggling and further abusing the Police Officers. Those facts constituted a resisting arrest charge.  Eventually the appellant was placed in the Police car.  While the Police Constable tried to attach the appellant’s seatbelt she struggled and spat twice on his face near his mouth.  Those facts gave rise to an assault on a Police Officer charge.

[3]      The appellant pleaded guilty.     She sought a discharge without conviction under s 106 of the Sentencing Act 2002.   This application was rejected by Judge Tuohy in the District Court.  He sentenced her to 75 hours’ community work on the resisting  arrest  and  assault  charges  and  convicted  and  discharged  her  on  the disorderly manner charge.

[4]      The  appellant  now  appeals  against  the  Judge’s  refusal  to  discharge  her without conviction.  She says in support of this appeal:

a)       there  is  new  information  about  the  effect  of  a  conviction  on  her mental health which should lead to a discharge without conviction;

b)in any event Judge Tuohy reached the wrong conclusion when he decided the consequences of a conviction were not out of proportion to the gravity of the offence; and

c)       the Judge wrongly found that the offending here was similar to earlier offending in 2006 when the appellant had been discharged without conviction.

District Court decision

[5]      In  the  District  Court  Judge Tuohy’s  initial  concern  was  whether  or  not

Ms K  ’s history of mental illness affected her offending.  However, he noted that

the appellant “wishes to take responsibility and does not allege that this offending took place in a context of an event of mental illness”.  The Judge correctly identified the relevant legal test in the Sentencing Act.  He concluded that the assault against the Police Officer and the other actions of the appellant that night were quite serious. He turned to consider the possible consequences of conviction.  He concluded that while there were possible consequences in relation to the appellant’s employment and overseas travel, those consequences were hardly unusual.

[6]     He observed that the appellant had been previously discharged without conviction in respect of similar charges of common assault and lawful damage.  He noted the appellant had been previously given diversion in respect of wilful damage and disorderly behaviour charges.  He concluded that the consequences of conviction would not be a proportion of the gravity of the offence and refused the application.

Parties’ submissions and approach to the case

[7]      While the Crown did not consider that the “new” information before this Court relating to the appellant’s mental state should affect the District Court Judge’s decision they accepted the proper approach was for me to consider the application afresh.  In those circumstances I propose to do so.

[8]      Sections 106 and 107 of the Sentencing Act 2002 are the relevant statutory provisions.  They provide:

106     Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless  by  any  enactment  applicable  to  the  offence  the  court  is required to impose a minimum sentence.

(2)      A discharge under this section is deemed to be an acquittal. (3)     A court discharging an offender under this section may—

(a)      make an order for payment of costs or the restitution of any property; or

(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)       loss of, or damage to, property; or

(ii)      emotional harm; or

(iii)     loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

(c)make  any  order  that  the  court  is  required  to  make  on conviction.

[(3A)If the court is considering making an order under subsection (3)(b), it may order a report to be prepared under section 33 as if the court were considering imposing a sentence of reparation.]

(4)Despite subsection (3)(b), the court must not order the payment of compensation in respect of any emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional  harm  is  a  person  described  in  paragraph  (a)  of  the definition of “victim” in section 4.

(5)Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

(6)When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

(7)       Nothing in section 320 of the Injury Prevention, Rehabilitation, and

Compensation Act 2001 applies to sentencing proceedings.

107      Guidance for discharge without conviction

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.

[9]      Given the Court of Appeal’s recent consideration of these sections in R v Hughes [2008] NZCA 546 and the Supreme Court’s decision in Austin, Nichols & Co v Stichting Lodestar [2008] 2 NZLR 141 there may be little difference between a traditional appellate approach and my reconsideration of the application.

[10]     Because I propose to reconsider the application, the second ground of appeal, namely that Judge Tuohy reached the wrong conclusion ([4](b)), is no longer relevant.  However, as will be obvious given the result of this appeal, I do not think Judge Tuohy reached the wrong conclusion.

[11]     The second preliminary matter before turning to the gravity of the offending and the direct and indirect consequences of conviction is whether or not the District Court Judge was wrong to find that the offending in this instance was similar to the earlier incident in respect of which the appellant had been previously discharged under s 106. This issue is relevant to my consideration of this case.

[12]     On the previous occasion the appellant pleaded guilty to common assault and wilful damage and it seems possession of an offensive weapon.   The incident involved a violent confrontation between the appellant and her then partner.   The assault consisted of the appellant punching the victim in the head four times with a fist causing minor bruising and swelling.  The wilful damage involved an incident many hours later when the appellant threw a 2.5 kilogram bar bell through a window of the complainant’s house.  The possession of the knife followed immediately from the wilful damage charge when the appellant picked up a knife and raised it towards the complainant.  In addition, as I understand it, the appellant has been previously diverted when facing charges of wilful damage and disorderly behaviour.

[13]     I have no doubt at all that Judge Tuohy was right to take the fact of the previous discharge without conviction into account.  The charges were similar in the sense that they involved a violent reaction over some considerable time and both involving aggressive and abusive conduct.  While not of great strength there is also something  in  the  fact  that  the  offending  for  which  the  appellant  was  diverted involved similar offending.   I note that diversion involves an acceptance by the person being diverted that they have committed the offences alleged.

Gravity of the offence

[14]     The  offending  on  this  occasion  occurred  on  the  morning  of  Saturday,

27 September 2008 when the appellant was at Cuba Street.   She was drunk.   She

went to a laundromat on Cuba Street and began abusing the manager.  He asked her to leave but she refused.   She spat on the floor and tried to pull the till off the counter.  She kicked the manager in the lower leg when he tried to usher her out of the front door.

[15]     The Police were called and arrived.  The appellant then complained that she had been punched in the neck.  It seems that this may have occurred earlier in the evening.  The Police called an ambulance and escorted her to the hospital.  At the hospital she was aggressive and agitated towards the Police.  She refused to stay in the appropriate waiting room, and went to the hospital family room where she threw children’s toys and jewellery around the room, swearing and yelling abuse at the Police.  Because of her behaviour the hospital staff refused to see her.

[16]     Eventually she was arrested for disorderly behaviour.  When she was arrested she was restrained and taken out of the foyer.  She began struggling and resisted the Constable.  Once she was put into the Police Car she spat on the Constable’s face.

[17]     This was not minor offending.  It was aggressive bullying behaviour toward a number of people over several hours.  Whatever the truth of the allegation about her being punched in the head it could not and did not justify the appellant’s behaviour. The  Police  Officer’s  reward  for  taking  her  to  hospital  was  abuse,  disorderly behaviour and finally being spat in the face.  The seriousness of the offending was made worse by the fact that this was another example of aggressive behaviour by the appellant.

Consequences of conviction

[18]     The first consequence of conviction, the appellant says, is that a conviction for this offending will severely restrict her ability to become, as she wishes, a clinical psychologist or a similar occupation.   It seems indisputable that if the appellant is convicted of these offences then such a conviction will be relevant, for example, to the Psychologists Board in deciding whether or not to grant the appellant registration as  a  psychologist.    And  such  a  conviction  will  be  relevant  in  other  similar occupations whether through a licensing system or through job applications.

[19]    However, there was no suggestion that a conviction of this type would absolutely prohibit qualification or employment in this area.   The only direct information relating to registration as a psychologist unfortunately comes from the appellant’s own psychologist.   She expresses her view of what the Psychologists Board may take into account.  There is nothing from the Psychologists Board itself to indicate how it deals with these matters.   However, there is no claim such a conviction would prohibit registration.

[20]     Licensing authorities such as the Psychologists Board may, however, be more interested in the facts of the incident that gave rise to the criminal charge and the applicant’s explanation than whether or not a Court on an individual occasion does or does not discharge someone without conviction.   The appellant, therefore, can only assert the fact of a conviction will be relevant to any occupational licensing application she may wish to make and also probably to any relevant job application. There are, probably, other occupations in this area for which there is no licensing and thereby no entry gate relating to past conduct.

[21]     The  second  consequence  of  conviction  is  said  to  be  that  the  appellant’s mental health has and will continue to deteriorate given her view that a conviction will prevent her from pursuing her chosen career.  This is the “new” evidence.  Her psychiatrist describes the effect of the conviction on the appellant’s mental health arising as it does from her view that a conviction will prevent future employment as “a serious obstacle appearing at a relatively fragile moment in this young woman’s recovery and rehabilitation”.  Ms Barnao, the appellant’s clinical psychologist, says the fact of a conviction causes “much stress” and has had a “deleterious effect on her state over the past few months”.

[22]     Ms K   has approached the consequences of a conviction as if that will prevent her becoming a psychologist or working in this area.   This is clearly not correct.   It is her subjective view.   Based on her own information her view is irrational.  It is that irrationality that is causing her to become fragile and unwell.

[23]     While it is self evidently not possible for this Court to prevent Ms K   from looking at her future in the way that she does, given it is an irrational view not

based on the facts, it is difficult to see how this could legitimately be claimed to be a consequence  of  conviction  which  this  Court  should  take  into  account.    If  the appellant chooses to quit her academic studies in the irrational belief that she cannot possibly achieve what she desires as far as her employment is concerned then this Court’s decision on whether a conviction is out of proportion to the consequences of the offending can hardly properly reflect that irrationality.

[24]     This was moderately serious offending especially given the appellant’s past record of similar violent episodes.  The consequences of a conviction properly taken into account, is the fact that these convictions will be relevant but not determinative in what profession or employment the appellant can undertake.  These consequences although important cannot in my view be said to be out of all proportion to the

gravity of the offending.  The appeal is dismissed.

Ronald Young J

Solicitors:

R Brown, John Miller Law, PO Box 6314, Wellington, email: [email protected]

J Miller, John Miller Law, PO Box 6314, Wellington, email: [email protected]

J M Webber, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]