Kahu v The Queen

[2018] NZHC 2521

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-16

[2018] NZHC 2521

STEFAN JOHN HIPIRINI KAHU

v

THE QUEEN

Hearing (via AVL):	25 September 2018
Counsel:	S W O Campbell and V C Nisbet for Appellant M H Cooke for Crown
Judgment:	26 September 2018

JUDGMENT OF CHURCHMAN J

[1]    On 12 July 2018, the appellant, Mr Stefan Kahu, pleaded guilty in the New Plymouth District Court to one charge of common assault.1 His application for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act) was declined by Judge Barkle; Mr Kahu was convicted of assault and fined $1000, of which $750 was to be paid to the victim.2

[2]    Mr Kahu appeals this decision to decline the discharge without conviction.3 He does so on the basis that:

1      Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.

2      R v Kahu [2018] NZDC 14293.

3      The Court fine and payment to the victim are not appealed; Counsel for Mr Kahu confirms the fine and payment to the victim have been paid.

KAHU v R [2018] NZHC 2521 [26 September 2018]

(a)the Judge failed to properly consider all the evidence before him to the extent that a miscarriage of justice occurred; and

(b)fresh evidence is now available which confirms the consequence of a conviction is that he will effectively be unable to work for the Fire Service. He seeks leave for this fresh evidence to be admitted on appeal.

[3]    The Crown submits that the Judge correctly found the consequences of a conviction are not out of all proportion to the gravity of the offending. The fresh evidence is opposed on the basis that it could have been obtained prior to sentencing. Even if admitted on appeal, it is submitted that the fresh evidence makes no difference to the position. The Fire Service has a legitimate interest in the conviction history of its employees. It is well established that the Court should be careful not to assist in concealing offending from the body responsible for vetting entry to a profession.

Approach on appeal

[4]    An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.4 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:5

(a)by virtue of a material error by the sentencing Judge in entering a conviction; or

(b)as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Act.

4      Jackson v R [2016] NZCA 627 at [6]-[16].

5 At [12].

Background

[5]    On 9 September 2017, Mr Kahu went with his father and three brothers to a bar in New Plymouth. A dispute arose between Mr Kahu’s brother, Hiwawa Kahu, and a bar patron. The patron then joined the table of the victim.

[6]    Soon afterwards, Mr Kahu’s father, John Kahu, approached the patron and began verbally abusing him. The victim told John Kahu to leave and then the patron pushed John Kahu backwards. Hiwawa Kahu and Mr Kahu then approached the patron, but the victim intervened, preventing them from reaching the patron. John Kahu picked up a bar stool and struck the victim with it. The victim backed off between the bar table and the edge of the balcony, trying to get away from the group but, when Hiwawa Kahu and Mr Kahu approached him, he picked up a bar stool and swung it in front of him in self-defence, hitting Hiwawa Kahu.

[7]    Hiwawa Kahu and Mr Kahu then backed the victim into the corner of the balcony and punched him around the face and head, while John Kahu struck the victim on his back at least twice with a bar stool. As the victim bent over, putting his arms over his face to protect himself from the blows, Hiwawa Kahu and Mr Kahu continued to punch him around his face, head and back.

[8]    During the assault, Hiwawa Kahu pushed his thumb into the victim’s eyeball and pulled it, resulting in the victim permanently losing his sight in that eye.

Personal circumstances

[9]    Mr Kahu was 32 years of age at the time of the offence. He has two previous convictions of a historic nature (2005 and 2007) which were subject to the Criminal Records (Clean Slate) Act 2004.

[10]   Mr Kahu now works as an electrician in Wellington and lives with his partner of 11 years and their seven-month-old son. Mr Kahu is the main income-earner for the family while his partner cares for their child.

[11]   Although working as a self-employed electrician, it has been a long-standing dream of Mr Kahu’s to serve in the New Zealand Fire Service since being a teenager. Since 2015, Mr Kahu has made a number of applications to join the Fire Service, however, due to the competitive nature of the application process, he has not been successful. Despite these setbacks, Mr Kahu states that he was, and is, committed to continue applying to become a firefighter.

[12]   During the District Court proceedings in 2018, Mr Kahu was in the process of applying to join the Fire Service and reached an interview stage at the Wellington Fire Department. However, having brought the pending charge to the Fire Service’s attention, Mr Kahu was asked to stand-down his application and reapply later.

[13]   Following his conviction, a representative in the Fire Service has confirmed in an email that this conviction would be “looked upon unfavourably and would not bode well for future applications”.

[14]   Counsel for Mr Kahu, Mr Campbell, submits Mr Kahu’s charge and conviction have had a profound effect on him and his partner, both of whom have found the proceedings to be highly stressful, and he feels genuine remorse for the victim.

Relevant law

[15]   Section 106 of the Act provides that if a person who is charged with an offence is found 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”.

[16]The application of s 106 is guided by s 107 which provides as follows:

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.

[17]   As stated by the Court of Appeal in R v Hughes, s 107 “provides a gateway through which any discharge without conviction must pass”.6 The Court noted that such an appeal is not an appeal against the discretion of the Court:7

[11]  The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles ... The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.

[18]   The approach to be adopted by an appeal court in relation to s 107 has been summarised as:8

[28]  An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.

[19]   In terms of the gravity of the offence, the Court of Appeal has summarised the correct approach to take as follows:9

[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; 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 (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).

[20]   When considering the direct and indirect consequences of conviction on a defendant, the Court of Appeal stated that:10

6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].

7 At [11].

8      Denden v Police [2014] NZHC 1814 (citations omitted).

9      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).

10     DC (CA47/2013) v R [2013] NZCA 255.

The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.

[21]The Court of Appeal recently confirmed in R v Smyth that: 11

[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.

[22]   Once the Court is satisfied the disproportionality test has been met pursuant to s 107, it may then determine whether to order the discharge.12

Fresh evidence

[23]   Mr Kahu seeks to adduce fresh evidence on appeal in the form of an affirmation which clarifies his position on:

(a)seeking to apologise to the victim;

(b)news reports following his sentencing; and

(c)an email from a representative of the Fire Service detailing the effects a conviction would have on Mr Kahu’s application to become a firefighter.

[24]   Mr Campbell submits that it is in the interests of justice that this new evidence be adduced on appeal on the basis that, in accordance with the principles set out in Bain v R and Lundy v R, it was unavailable at the time of sentencing, is credible, and crucial to the main issues on appeal.13 In terms of the email from the Fire Service,  Mr Campbell submits that this information was not available at the time of sentencing and was only sent to Mr Kahu on 19 July 2018.

11     R v Smyth [2017] NZCA 530.

12     Z (CA447/2012) v R, above n 9, at [21]; R v Hughes, above n 6, at [8]-[12].

13     Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2

NZLR 273 at [116]-[118].

[25]   Mr Campbell submitted that there was a material difference between the email from the Fire Service of 19 July 2018 and the level of information available to the sentencing Judge about the probable effect of a conviction on Mr Kahu’s application to be a member of the Fire Service.

[26]   The Crown, however, submits that the information contained in the email from the Fire Service confirming that a criminal conviction would mean his application would be looked upon unfavourably is not fresh as there is no apparent reason why the evidence could  not  have  been  obtained  prior  to  sentencing.  Furthermore,  Mr Kahu’s unsuccessful application to the Fire Service was two months prior to sentencing. Similarly, the correspondence and information regarding Mr Kahu’s application was plainly available prior to sentencing. Even if admitted, the Crown submits that the evidence does not substantially change the position for Mr Kahu.

[27]   In relation to the issue of Mr Kahu’s remorse and wish to apologise to the victim, the sentencing court acknowledged, at [10], the submission that Mr Kahu was genuinely remorseful. While the Judge did not identify the individual factors he took into account in adjusting the gravity of the offence from his initial assessment of it being one at the higher end of a charge of common assault to one at the lower end of the moderate category, he did identify them as the “personal and mitigating” factors in Mr Kahu’s favour. That would have included remorse.

[28]   In relation to an apology, there is no reason why Mr Kahu could not have apologised prior to the original sentencing. If Mr Kahu was unsure as to whose permission he needed to have written a letter of apology to the victim, all he needed to do was to ask his lawyer. Mr Campbell also referred to the restorative justice meeting that occurred between the victim and his brother Kiwawa Kahu. This took place after Mr Kahu’s sentencing, however, it was not a process he was personally involved with.

[29]   Mr Kahu attached to his affirmation some printouts from the Stuff news website giving details of the incident. Mr Campbell argued that this would not have been something that the sentencing Judge had taken into account. I do not accept this. Publicity of this nature is the inevitable consequence of conviction and is something

that the sentencing Judge would have been aware of. There is nothing unbalanced or inappropriate in the publicity.

[30]   In relation to the email from the Fire Service of 19 July 2018, I have come to the conclusion that this does not meet the test for fresh evidence. This information could have been sought from the Fire Service and made available prior to sentencing. As it is, in his judgment, Judge Barkle noted that, if convicted, it would be a far more difficult exercise for Mr Kahu to join the Fire Service and the email essentially confirms this.14 While this email is credible, the information contained within it was available or could have been made available prior to sentencing, and it is not crucial to the main issues on appeal. Therefore, I do not allow this fresh evidence to be adduced. Neither is there anything new and relevant in relation to remorse or media publicity.

Gravity of the offending

[31]   Mr Campbell submits that Judge Barkle erred by not considering all of the mitigating features of the offending and offender in his sentencing decision. He relies on DC v R, in which the Court of Appeal held:15

[A]ll relevant aggravating and mitigating factors relating to the offending and the offender come into play when considering the gravity of the offence. They find statutory recognition in ss 9 and 10 of the Sentencing Act.

[32]   Mr Campbell submits that there are several mitigating factors in this case which demonstrate that, when taken in isolation from his father’s and brother’s actions, put Mr Kahu’s offending at the lower end of the spectrum as categorised by the sentencing Judge:

(a)Mr Kahu immediately self-reported his involvement in the incident to the Police as soon as he saw the incident reported in the media and cooperated with Police extensively;

14     R v Kahu, above n 2, at [18].

15     DC (CA47/2013) v R, above n 10, at [35].

(b)Mr Kahu also encouraged his brother and father to also self-report their involvement in the incident to the Police;

(c)Although Mr Kahu has two previous historic convictions, it is clear that he has worked hard to put his life on the right track, is a person of otherwise good character who is a responsible father, long-term partner, and hard worker with a strong work ethic and sense of responsibility;

(d)Mr Kahu accepted responsibility for his offending and entered an early guilty plea;

(e)Mr Kahu’s role in the offending was relatively limited, was at the lower- mid end of the scale, occurred in the heat of the moment while intoxicated, and was in the context of a misplaced loyalty to his father and brother;

(f)Mr Kahu was, and is, very remorseful and regretted his actions, and will have to suffer the consequences of having his name published in the media;

(g)Mr Kahu continues to seek to apologise to the victim in person and to provide a letter of apology if possible; and

(h)Mr Kahu continues to seek to provide further emotional harm reparation to the victim.

[33]   Mr Campbell submits that when the above factors are taken into account, the offending sits at the lower end of the scale.

[34]   Ms Cooke submits that the Judge correctly identified the gravity of the offending overall as of moderate level, albeit at the lower end, taking into account the circumstances of the offending, and all mitigating and aggravating circumstances.16 The Crown notes that, as the Judge identified, on its own this offending was at the

16     R v Kahu, above n 2, at [15].

higher end of a charge of common assault.17 The offending involved punching to the head, with three people joined in attacking one person. At the time Mr Kahu joined the physical confrontation, the victim was attempting to retreat and was defending himself.

[35]   The Crown also notes that the Judge had expressed some concern at the tone of Mr Kahu’s affidavit and its inconsistency with the summary of facts.18 Mr Kahu said that he was concerned as to the safety of his brother and father and, in an effort to resolve the dispute, struck the instigator. The Crown submits that this description of events does not align with the summary of facts and minimises Mr Kahu’s role.

[36]   Mr Campbell accepts that Mr Kahu’s original affidavit referred to the victim as the “instigator”, however he submits that this wording can best be described as what Mr Kahu perceived on the night of the incident, in the context of his intoxication, but not necessarily his view of the victim after the events. He accepts this should have been better clarified in the affidavit and submits that referring to the victim as the “instigator” should not have been a reflection on Mr Kahu’s genuine feelings of remorse and shame, and that the Judge gave this aspect of Mr Kahu’s affidavit too much weight in his decision-making so as to overshadow other evidence which showed clear and genuine feelings of remorse by the appellant such as his desire to apologise, offer emotional harm reparation, and his extensive cooperation with the Police.

[37]   On considering the sentencing notes, it is my view that the Judge did consider all of the relevant mitigating features of the offending and the offender. He took into account Mr Kahu’s feelings of remorse and did not place too great a weight on his referring to the victim as the “instigator”. He noted that Mr Kahu pleaded guilty and that Mr Nisbet had emphasised that he was acknowledging full responsibility for his offending and that he was genuinely remorseful for the events that night.19 The Judge observed that Mr Kahu had encouraged his father and brother to come forward to the Police.20 In terms of the victim being the “instigator”, the Judge merely noted that the

17 At [9].

18 At [6].

19 At [10].

20 At [10].

Crown submitted that his remorse should be tempered by that remark.21 The Judge then noted that he had been advised that Mr Kahu would be prepared to make some emotional harm reparation payment.22 He also referenced Mr Kahu’s personal circumstances, including that he runs his own business, is in a long-term relationship and has a child, and commented on the references that attested to Mr Kahu’s demonstrable change in character and maturity since his earlier offending.23 All of these matters do reflect well on Mr Kahu and he is to be commended for the many positive steps he has taken in his life, but they were all obviously considered by the Judge as justifying the considerable adjustment he made to his initial assessment of the gravity of the offending. It is therefore my view that the Judge took all relevant aggravating and mitigating factors into account and was correct to find that the gravity of Mr Kahu’s offending was of “a moderate level, albeit at the lower end”.24

Direct and indirect consequences of a conviction

Fire Service

[38]   It has been a long-term goal of Mr Kahu to join the Fire Service and become a firefighter. In his sentencing note, the Judge found that on the best information available to the Court, Mr Kahu was not barred from entering the Fire Service, but that it would be more difficult.25 He took into account the email Mr Kahu provided to the Court on the day of sentencing, stating that Mr Kahu’s application had been put on hold, and acknowledged the usual consequences flowing from a conviction such as loss of pride, self-esteem and embarrassment, as well as employment, insurance and immigration issues.26

[39]   Mr Campbell states that Mr Kahu is aware that, although the Fire Service convictions policy does not technically bar him from being employed, practically speaking this conviction will effectively bar him from being employed, particularly when one considers the competitive nature of obtaining a job with the Fire Service.

21 At [11].

22 At [12].

23     At [13]-[14].

24 At [15].

25     R v Kahu, above n 2, at [18] and [21].

26     At [17] and [19].

Mr Campbell submits that the Court need not be satisfied that the direct or indirect consequences of a criminal conviction will inevitably or probably occur; it is sufficient that the Court is satisfied there is a real and appreciable risk of such consequences.27

[40]   Mr Campbell has brought to the attention of the Court a number of cases that are of relevance in considering bars to obtaining employment. In Beaver v Police, in which the appellant pleaded guilty to a charge of common assault, the appellant had been in the process of applying to join the Corrections Department.28 The Corrections Department declined his job application after learning of the charges against him. Although there was no evidence to confirm a conviction would bar him, Venning J held that, “[I]t is a reasonable inference that if being charged meant that his application was declined, any conviction for assault would mean any future application would also be declined.”29

[41]   The Crown submits that there are three main points arising from the Fire Service application:

(a)The email from Fire and Emergency appended to Mr Kahu’s new affirmation states only that Mr Kahu’s conviction would be looked upon unfavourably and would not bode well for future applications. It does not state that Mr Kahu’s application would inevitably fail as a consequence of a conviction. Entry requirements state that the online guide does not cover all situations and each situation will be assessed on merit. The new information in Mr Kahu’s affirmation takes the matter no further than the information before the District Court Judge, who accepted that joining the Fire Service would be a far more difficult exercise.

(b)There is a line of authority that the Court must be careful not to lend its assistance to the potential concealment of offending where Parliament has vested the vetting responsibility for a particular profession in a

27     DC (CA47/2013) v R, above n 10, at [43].

28     Beaver v Police [2014] NZHC 2746.

29 At [18].

specialist person or body.30 Parliament recognises that in some areas  of endeavour it is in the public interest that those seeking to practise are subject to specific constraints in terms of selection and supervision.31 It is not the function of the courts to pre-empt decisions by employers about the suitability of prospective employees.32

(c)It is unclear whether the Fire Service’s concern is purely with the matter of a conviction, or whether the underlying charge and admitted offending is the difficulty. In other words, it is unclear whether the consequence flows primarily from Mr Kahu’s admitted conduct, rather than the entry of a conviction. Section 107 is concerned only with the consequences, direct and indirect, of convictions.

[42]   In Parker v Police, Williams J observed that the case for discharge may not be as strong when the professional body will know about the offending in any event.33 In this case, the Fire Service already knows about Mr Kahu’s charge and admitted offending. It is possible that the fact of his admitted offending is more likely to act against his success in the application process rather than the fact of his conviction. That being said, it is my view that, while it cannot be stated definitively that Mr Kahu will never be accepted into the Fire Service with this conviction, there is a real and appreciable risk of his not being selected. Whether this risk outweighs the gravity of his offending is another matter, though, which will be discussed below.

General consequences

[43]   Mr Campbell submits that the general consequences of conviction were also pointed to at sentencing and it was submitted that these should be weighed along with the consequences to Mr Kahu’s career goal.

[44]   In Nash v Police, Mallon J provided the following analysis of general consequences:34

30     R v Smyth, above n 11, at [22].

31     Maraj v New Zealand Police [2016] NZCA 279 at [28].

32     Graham v New Zealand Police [2018] NZCA 172 at [29].

33     Parker v New Zealand Police [2016] NZHC 2524 at [21] and [26]-[29].

34     Nash v Police HC Wellington CRI-2009-485-000007, 22 May 2009.

[19]      Nevertheless I accept the submission for Mr Nash that there are general consequences that follow from a conviction.  In a variety of ways  (eg employment, insurance, immigration) people are asked to disclose whether they have criminal convictions. For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer that question honestly. It may also materially disadvantage him – as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction. It is true that the record will show that the conviction was for a minor matter because it will show that  Mr Nash was discharged, but it will also show that it was serious enough for a conviction to have been entered. Mr Nash does have other convictions, but under the Criminal Records (Clean Slate) Act 2004 he will soon have a “clean slate” in relation to them. It is apparent from Mr Nash’s record that he has since that time stayed out of trouble and, according to the other material before the Court, is a hard working young man.

[20]      Overall I am satisfied that these general consequences of conviction which may operate to Mr Nash’s disadvantage are out of all proportion to the gravity of the offending, particularly in light of the mitigating factors. …

[45]   Mr Campbell submits that, in terms of general consequences to Mr Kahu, it is clear he is ashamed of his actions and does not believe that they reflect what he is normally like. To have a conviction would hang heavy over his head, especially when he has made significant effort to get his life on the right track. Furthermore, Mr Kahu is a businessman and father, and to have a conviction, after all his effort in bettering himself, would be deeply shameful and damaging to his reputation. He also emphasised that in receiving a conviction, the Criminal Records (Clean Slate) Act 2004 will no longer apply to his previous convictions, meaning that he will have to declare them despite having clearly made significant efforts to put his past behind him.

[46]   In terms of the effect of the Clean Slate Act, Mr Campbell refers to the case of Linton v Police, in which the appellant had been discharged without conviction on a charge of possessing an offensive weapon, but not on a separate charge of fighting in a public place.35 The appellant sought a discharge on both charges. He was in his mid-20s, was a father and a carpenter. He had previous convictions, the oldest being five years previously, but had shown evidence of making positive inroads in bettering himself and getting his life back on track. In granting the discharge, Clark J noted that a fresh conviction would mean the Clean Slate Act “clock” would start over again and would hold him back from advancing his career and from potential future employment opportunities.

35     Linton v Police [2017] NZHC 2241.

[47]   The Crown, however, submits that Mr Kahu’s disqualification from eligibility under the Criminal Records (Clean Slate) Act is a natural consequence of re- offending.36 It is also submitted that the decision of Linton v Police is distinguishable as the offending in that case was characterised as “very minor” whereas, in this case, the offending could never be described as minor. The Crown also submits that, similarly, the media reporting complained of is one of the general consequences of a conviction, and follows naturally from the principle of open justice.

[48]   There is no doubt that Mr Kahu, as a businessman, partner and father, will suffer a certain amount of shame in having this fresh conviction against his name, along with his old convictions no longer being kept from his record. It is my view, however, that these general consequences, while unfortunate for Mr Kahu, are but a natural consequence of his offending.

Are the consequences of a conviction out of all proportion to the gravity of the offending?

[49]   Mr Campbell submits that, due to the Judge failing to properly weigh and assess all the evidence before him, the Judge erred in not finding the consequences to be out of all proportion to the offending. The impact of a conviction, it is argued, will have a lasting impact on Mr Kahu, especially when one considers his limited role in the assault, his spur of the moment decision, his intoxication, and his subsequent cooperation with the Police. When these factors are weighed appropriately, it is submitted that a conviction would be out of all proportion to Mr Kahu’s involvement.

[50]   The Crown submits that the Judge correctly found the consequences of a conviction in this case are not out of all proportion to the gravity of the offending. He concluded that the offending, after adjustments for mitigating and aggravating factors, was at the lower end of the moderate category; there is no evidence Mr Kahu will be inevitably barred from entry to the Fire Service if convicted; the Fire Service has a legitimate interest in the conviction history of its employees and the Court should not effectively assist in concealing offending from the body responsible for vetting entry to a profession; it is unclear whether it is Mr Kahu’s conduct rather than the entry of a

36     Criminal Records (Clean Slate) Act 2004, s 8.

conviction that is the source of the Fire Service’s concern; and the black mark against Mr Kahu’s name, publicity associated with the case and clean slate implications are ordinary consequences of a conviction.

[51]   It is my view that the Judge did not err in finding the consequences of a conviction for Mr Kahu were not out of all proportion to the gravity of the offending. While there is an appreciable risk that Mr Kahu may be barred from entry into his desired profession, it is a very competitive role and it was never guaranteed that, but for this conviction, he would have become a firefighter. The public, along with the Fire Service, have an interest in ensuring that firefighters are persons who make rational decisions on the spur of the moment, and are not prone to violence. His disqualification from eligibility under the Criminal Records (Clean Slate) Act is but a natural consequence of pleading guilty to common assault, as is the shame that may result from his name being published in the media. These consequences are not out of all proportion to the gravity of his offending.

Discretion

[52]   Mr Campbell submits that the Court should exercise its discretion to discharge Mr Kahu without conviction, relying on a number of cases in which discharge was granted. He notes that, while these cases had been referred to the sentencing Judge, with the exception of Nash, none appeared to have been considered in sentencing.

[53]   However, each case turns on its own facts. While I have considered the cases presented by Mr Campbell, it is my view that this case, on its facts, is not an appropriate one in which to exercise the Court’s discretion to discharge without conviction.

Conclusion

[54]For the reasons given above, this appeal is dismissed.

Churchman J

Solicitors:

V C Nisbet, Barrister & Solicitor, Wellington for Appellant Crown Law Office, Wellington for Crown