Knight v The King
[2024] NZHC 2011
•22 July 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2024-463-64
[2024] NZHC 2011
GERRARD BAILEY KNIGHT v
THE KING
Hearing: 11 July 2024 Appearances:
P Mitchell for Appellant
T Taane and E O'Brien for Respondent
Judgment:
22 July 2024
Reissued with redactions:
19 September 2024
JUDGMENT OF MUIR J
This judgment was delivered by me on 22 July 2024 at 4 pm,
………………………………… Registrar/Deputy Registrar
Solicitors:
Pollett Legal Limited
KNIGHT v R [2024] NZHC 2011 [22 July 2024]
Introduction
[1] Mr Gerrard Knight appeals the decision of Judge J P Geoghegan in the District Court declining an application for a discharge without conviction, 1 having been found guilty as a result of a Judge alone trial on two charges of indecent assault.2 He was sentenced to six months’ home detention from 6 May 2024.3
[2] Mr Knight says that the District Court Judge erred in his application of the principles for discharging an offender without conviction under ss 106 and 107 of the Sentencing Act 2002 (the Act). He also appeals the Judge’s decision declining permanent name suppression.
The facts
[3] In early 2023 the East Coast of the North Island was struck by Cyclone Gabrielle with devastating consequences. Mr Knight held a leadership role within an emergency response team tasked to assist with the immediate aftermath. The victim of his offending was on the same team. [Redacted pursuant to s 203 of the Criminal Procedure Act 2011]. At that time, Mr Knight was 56 years of age, and the victim was 37 years of age.
[4] The first incident occurred at lunchtime on 18 February 2023, when the team had stopped at a layby near Wairoa for a barbecue. The victim took a number of “selfies” and photographs of the surrounding area. The defendant then suggested that he and the victim be photographed together, which another member of the group volunteered to do. As the defendant and the victim posed for the photo, the defendant stood close to the victim and grabbed her buttocks with his hand. He then announced
1 Police v Knight [2024] NZDC 9951 [Sentencing Notes]. In an earlier reserved judgment dated 30 January 2024 (Police v Knight [2024] NZDC 1660 [Verdicts]) the Judge gave reasons for verdicts and concluded “Mr Knight is accordingly convicted on both charges”. Despite entry of the convictions the Judge went on, at sentencing, to consider a discharge without conviction. No point is taken in terms of the Court’s ability to entertain the appeal which, properly regarded, is one against both conviction and sentence. See Doyle v R [2022] NZCA 307 citing Jackson v R [2016] NZCA 627.
2 Crimes Act 1961, s 135. Maximum penalty seven years’ imprisonment.
3 There was a delay in starting the sentence granted by the Judge in order to allow Mr Knight to return to Christchurch.
to the group that he was “going for a piss” and said to the victim “why don’t you hold it for me”.4
[5] The second incident occurred later the same day, after the group had returned to their previous accommodations. Mr Knight, the victim and a third party were clearing a bedroom to be ready for the arrival of a new team. Mr Knight asked the third party to look for new linen. The victim also went to look for linen and Mr Knight followed her. As they walked past the defendant’s room, the defendant opened the door and invited the victim to go in and look at the view. The victim did so, heading straight to the window, which she glanced out of, before turning around to leave. She noticed Mr Knight fumbling around in his personal bag by the door, and waited, leaning against a chest of drawers for him to move, so that she could, in turn, exit.
[6] Mr Knight then closed the door and moved towards the victim. As he did so he unbuttoned and unzipped his trousers exposing his erect penis. He then pressed himself against the victim, attempting to kiss her and asking her to touch him sexually. He undid the victim’s belt and tried to unbutton her trousers.
[7] At that moment the victim’s portable radio transmitted a message from the third party asking where she was. The defendant then stopped the assault, and the victim exited the room.
[8] The victim impact statement records that the combined incidents left the victim “feeling absolutely miserable … so vulnerable and terrified … being put in that position by someone in power”. She was unable to work for a month, suffered extended insomnia and required extensive counselling. She had her “heart set” on commencing [redacted pursuant to s 203 of the Criminal Procedure Act 2011] studies in 2023 but because of prolonged absences from the front line during her rehabilitation, was required to defer this for a year. Clearly therefore, the offending took a very significant toll on the victim’s physical and emotional wellbeing.
4 Police v Knight [Verdicts], above n 1, at [10].
The District Court decision
Discharge without conviction
[9] The Judge identified the relevant test under s 107 of the Act as having two stages—the first requiring an assessment of the gravity of the offence and an assessment of whether the direct and indirect consequences of conviction would be out of all proportion thereto (the threshold inquiry), and the second requiring a discretionary assessment in terms of whether a discharge was appropriately granted.
[10] In terms of the offending itself, the Judge considered it to be “at a serious level”.5 He noted that Mr Knight was deployed in a position of authority and took advantage of the victim in circumstances where she was vulnerable.
[11] Against that, the Judge weighed Mr Knight’s “completely clear record”, “glowing references” and record of community contribution.6 He noted however, that Mr Knight did not accept responsibility for his offending.
[12] The Judge observed that the direct and indirect consequences of conviction were clear. Mr Knight had lost his employment and the Judge accepted that it would be “exceedingly difficult” for him to get employment (at least at an equivalent level to that previously enjoyed) due to “the very nature of the offence”.7 The Judge acknowledged that sexual offending creates “automatic barriers for individuals in terms of gaining future employment” and that “effectively you are prevented from obtaining any similar employment”.8
[13] However, the Judge was not satisfied that the consequences of conviction were out of all proportion to the gravity of the offending. He noted this was serious, albeit limited, offending, with the consequences of the conviction flowing automatically from it. He therefore declined to discharge Mr Knight without conviction.
5 Police v Knight [Sentencing Notes], above n 1, at [22].
6 At [23]. The Judge referred to Mr Knight’s community contribution through volunteering with Fire and Emergency New Zealand, New Zealand Search and Rescue and Hato Hone St John.
7 At [25].
8 At [25].
Name suppression
[14] In respect of the application for final suppression of Mr Knight’s name, the Judge acknowledged as realistic the submission of Mr Knight’s counsel that if the application for a discharge without conviction was successful there would be a much stronger argument in favour of final suppression. He noted that the overriding principle was one of open justice, subject to the Court’s powers to make suppression orders under s 200 of the Criminal Procedure Act 2011.
[15] He acknowledges that “this has been a very stressful situation for both you and your partner”.9 However, he was not satisfied that extreme hardship had been demonstrated. He therefore declined to make an order for final suppression of Mr Knight’s name.10
Approach on appeal
Discharge without conviction
[16] An appeal against a refusal to grant a discharge without conviction is governed by s 232 of the Criminal Procedure Act. As such, this Court’s focus is on identifying whether there has been any material error in entering a conviction, or a miscarriage of justice has otherwise occurred in applying the principles for discharging an offender without conviction found in s 107 of the Act.11
Name suppression
[17] The appeal proceeds under s 287 of the Criminal Procedure Act. Because name suppression applications under s 200 of the Criminal Procedure Act involve a two stage analysis—requiring identification of whether the statutory threshold has been met, and an exercise of judicial discretion in terms of whether suppression is appropriately ordered or not—appeals in turn invite a two stage analysis. The appellate court starts by making its own assessment of whether the statutory threshold at the first stage has been met. In this context, the constraints on an appeal from the
9 At [38].
10 An interim suppression order was placed upon notice that Mr Knight planned to file an appeal.
11 Gaunt v Police [2017] NZCA 590 at [9]; and Jackson v R, above n 1, at [12].
exercise of the discretion do not apply. At the second stage, which involves the exercise of discretion, the appellant must show that there was an error of law or principle or that the District Court took into account irrelevant considerations or failed to take into account relevant considerations, or that its decision was plainly wrong.12
Submissions
Discharge without conviction
[18] Mr Knight appeals the refusal to grant a discharge without conviction on the grounds that the Judge:
(a)erred in his assessment of the gravity of the offending;
(b)failed properly to take into account the consequences of conviction; and
(c)consequentially undertook an incorrect proportionality assessment.
[19] As a result his counsel, Mr Mitchell, submits that a miscarriage of justice occurred.
[20] He says that the Judge erred in his assessment of the gravity of the offending as he failed to take into account evidence of Mr Knight’s good character, failed properly to consider the consequences that would accrue and then weigh those consequences against what was otherwise opportunistic offending, and failed to recognise that there would be lifelong employment implications unless a discharge was granted.
[21] He submits that the first incident was at the very lowest end of the indecent assault spectrum and is best classified as “childish behaviour”. As to the second, Mr Mitchell admits this was more serious but submits that it still falls in the lower half of the range of indecent assaults. In light of these factors, he submits there was no basis to define the offending as “serious”.
12 Aranguiz v New Zealand Police [2019] NZHC 203 at [10].
[22] Mr Mitchell submits that in respect of personal mitigating factors, the Judge should have taken Mr Knight’s offer of a $10,000 emotional harm reparation payment into account when considering the application for discharge. Further, he submits that Mr Knight’s background as a father, volunteer and consistently contributing member of society since he joined the workforce at age 15, should have been acknowledged more fulsomely, particularly in light of Mr Knight’s struggles to obtain employment of any type since the conviction. Mr Mitchell says that the Judge did not give enough weight to these factors and that many were omitted from the decision entirely.
[23] In respect of the proportionality assessment, Mr Mitchell submits that disproportionality is made out because the gravity of the offending was low, and the consequences of conviction are extreme. He submits that Mr Knight’s offending “does not justify his total exclusion from being a positive and productive member of society” and says that a discharge should be granted accordingly.
[24] For the respondent, Mr Taane emphasises significant emotional distress suffered by the victim. He says Mr Knight was in a position of authority over her given his status as team leader, and that he took advantage of her in circumstances where she was vulnerable. He submits that the sexual offending escalated over the course of the day and that in respect of the second offence there was a degree of premeditation, the defendant having instructed the third party to undertake a task which left him free to prey on the victim.
[25] He notes that because Mr Knight took the allegations to trial and continues to deny the offending, the overall assessment of gravity is unmitigated by remorse. Nevertheless, he acknowledges the defendant’s previously clean criminal record and significant community contributions.
[26] In terms of the direct and indirect consequences of conviction, Mr Taane acknowledges that the evidence submitted by Mr Knight suggests employment at levels commensurate with his skill set will now be difficult. He acknowledges also that a subsequent attempt by Mr Knight to purchase a lawn mowing franchise was unsuccessful following disclosure of the conviction. But he says, relying on Nash v Police, that impairment of future employment prospects is a general and not a
disproportionate consequence of certain types of offending.13 He also submits that it is “speculative” to assume all employment opportunities will be foreclosed and for all time.
[27] He submits that the Judge correctly classified the offending as serious having turned his mind to the various aggravating factors and in light of the maximum penalty of seven years’ imprisonment for indecent assault.
[28] He emphasises that the offending in this case occurred in an employment context where the victim was a subordinate. He submits that is not the type of offending the Court should conceal by way of discharge and that future employers are entitled to information about the offending in assessing suitability for any potential role, particularly involving younger female subordinates.
[29] In summary, he submits that although in the near term at least, employment at similar levels of seniority may not be possible, the consequences of conviction are no more severe than those which would be faced by anyone with an equivalent conviction.
Name suppression
[30] Mr Mitchell submits that a proper analysis was not undertaken by the Judge in terms of the extreme hardship test. He says that the Court was obliged to identify all likely negative consequences for the offender and assess their cumulative effect, and whether that went beyond the consequences ordinarily associated with publication.
[31] He focuses again on Mr Knight’s future employment prospects and submits that, having identified these as significantly impaired by the offending, a finding of extreme hardship should have followed.
[32] Mr Taane submits that the Judge was correct in his assessment and application of the law in finding that publication of Mr Knight’s name would not result in extreme hardship. He again submits that while Mr Knight might encounter difficulties in
13 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.
securing employment at an equivalent level to that enjoyed previously, this is true of any person convicted of sexual offending and cannot alone constitute extreme hardship. He further contends that there is significant public interest in the community being able to make an informed decision as to whether or not they engage with the appellant, particularly in an employment context.
Discussion — discharge without conviction
Approach
[33] On any application under s 107 of the Act the Court must first make an assessment of the gravity of the offending. In doing so it considers all of the aggravating and mitigating features of the offence and the offender.14 Next it must identify the direct and indirect consequences of conviction.15 There must be a “real and appreciable risk” that the identified consequences will occur.16 The nature, seriousness and degree of likelihood that the identified consequences will occur is material.17
[34] An evaluation is then required in terms of whether the identified consequences are out of all proportion to the gravity of the offence.18 If the court decides that they are, it must still consider, as a matter of residual discretion, whether to grant a discharge without conviction; albeit that on the current approach it is rare to decline to do so at that stage.19
Gravity of offending
[35] I start therefore by assessing whether there was any material error (or a miscarriage otherwise occurred) in the Judge’s assessment of the gravity of the offending. I note that in this context, gravity means the gravity of the offence
14 A (CA747/10) v R [2011] NZCA 328 at [22(a)].
15 At [22(b)].
16 DC (CA47/2013) v R [2013] NZCA 255 at [43].
17 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82].
18 A (CA747/10) v R, above n 9, at [22(c)].
19 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13]. See also Mathew Downs (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA106.02] and [SA107.01]. In Bolea v R [2024] NZSC 46, the Supreme Court cited this approach but stated that “we make no comment on the correctness of this approach”.
committed, not the gravity of the offending compared with other cases involving the same offence.20
[36] I do not consider the Judge’s categorisation of the “offending itself” as being at “a serious level” was in error. Clearly in that conclusion I am more influenced by the second incident than the first. However, both are characterised by the seriously aggravating feature that the assaults occurred in an employment context where the defendant was in a position of authority over the victim.
[37] The circumstances of the second assault are in my view, particularly troubling. Elements of premeditation are evident in the pretext by which the victim was lured into the defendant’s room. Mr Knight then closed the door, exposed his erect penis, pushed up against the victim whilst she was standing next to a set of drawers and urged her to “touch it”. He also endeavoured to unbuckle the victim’s belt while proceeding to try to kiss her. This was, by any reckoning, a serious sexual assault.
[38] An aggravating feature was the extent of harm to the victim. It is clear from her victim impact statement that she suffered psychological trauma, with significant implications for her employment, career advancement and interpersonal relations.
[39] In some ways the offending epitomises all that women have, for decades now, properly called time on—an older male in a position of authority, abusing that authority for his own sexual gratification and seemingly without reference to the psychological consequences for a younger woman wishing only to go about her dedicated career. The combination of the specifics of the second assault, abuse of authority and the vulnerability of the victim, in my view, make the Judge’s preliminary assessment of gravity, unimpeachable.
[40] Of course, as the Judge himself acknowledged, it was also necessary to take into account offender specific mitigating features, including the fact that Mr Knight had no previous criminal convictions, produced multiple favourable references by friends and associates and had a long history of volunteer support in the community. He noted however that the further potential mitigating feature of remorse was not
20 Z (CA447/2012) v R [2012] NZCA 599 at [31].
present in the case. Although the Judge did not specifically return to his initial “serious level” categorisation and make an identified adjustment for personal mitigating factors, I do not accept the submission that he placed inadequate emphasis on them.
[41] In respect of the defendant’s offer of an emotional reparation payment in the amount of $10,000, Mr Mitchell is correct that the Judge did not discuss this offer in the context of his s 107 analysis. He did however address the issue when he came to sentencing. He said he was prepared to make an allowance of five per cent for the offer while not directing that such a payment be made for the apparent reasons that:
(a)it was not a “concrete offer” in the sense that it would need to be subject to an application for a loan;
(b)it ran “directly across the lack of remorse which is referred to in the presentence report”.
[42] Mr Mitchell submits that the offer should have been regarded as sufficiently “concrete” to feature in the s 107 analysis. He says that Mr Knight had arranged the necessary funding. However, he fairly acknowledged that such funding would not be available in the absence of a discharge without conviction because of the implications for Mr Knight’s employment prospects if the conviction remained undisturbed, and in turn, his ability to service the loan.
[43] At this point, the calculus becomes highly transactional. Essentially, what Mr Knight is requesting is that he be granted a discharge on payment of the sum of
$10,000, all the while maintaining that the offending never occurred and relatedly, without any expression of remorse.
[44] Mr Mitchell submits the District Court Judge should have considered the wider benefits of the offer—a tangible sum to compensate the victim for the psychological, financial and career harm suffered as a result of the offending, meanwhile providing an opportunity for a formerly productive member of society to return to tax paying employment and support of the voluntary sector. The submission has, I admit, superficial attraction. However, the Court must be live to the wider implications of
the proposal, which, however it is dressed up, commercialises the s 107 jurisdiction. In turn that has the capacity to undermine the administration of justice by supporting criticism, valid or not, about the existence of a two tier justice system, depending upon financial status. Moreover, as I will come to shortly, such an approach would deprive potential employers of appropriate information in terms of Mr Knight’s suitability for any role on offer.
[45] I do not therefore regard the proposed emotional reparation payment as significantly “moving the dial” on the gravity analysis. Ultimately, taking into account all that can be said in Mr Knight’s mitigation, this was at least low end serious offending. I infer that the Judge’s ultimate conclusion was similar having initially categorised the offending as serious and then gone on to recognise Mr Knight’s formerly good character and community contributions.
Direct and indirect consequences of conviction
[46] The Judge acknowledged that the defendant had, as a result of the offending, already lost the job he was performing at the time.21 He also acknowledged that the convictions for indecent assault would effectively prevent him from obtaining similar employment to that formerly enjoyed.
[47] That finding reflected the evidence before the Judge, in particular the advice of Mr D McGruddy, Managing Director of Rockit Recruitment Ltd, that a person with such “serious convictions would find it virtually impossible to the be offered a role in the corporate sector in New Zealand and most likely anywhere else”. The Judge was also provided with an email from a manager of Jim’s Group New Zealand declining to entertain Mr Knight as a Jim’s lawnmowing franchisee “until your legal matter is sorted or overturned”.
[48] There was no error in the Judge’s assessment of the direct and indirect consequences of conviction. Mr Mitchell’s argument in this Court is premised on the exact same “effective prevention from obtaining similar employment” that the Judge
21 Police v Knight [Sentencing Notes], above n 1, at [25].
acknowledged. It is not suggested that employment at some level will, for all time, be unavailable.
The proportionality assessment
[49] Indecent assault is a serious offence and this was, as the Judge held, serious offending of its type both in terms of the physical aspects of the assault and the context in which it occurred (a work environment with an assault by a person in authority over the victim). In addition, it resulted in significant psychological harm requiring an extended period of rehabilitation. The consequences for the offender have likewise been serious—loss of a valued and responsible job, and, absent a discharge, significant impairment of future employment prospects and, inevitably, reputational loss.
[50] As this Court has frequently observed, difficulties in obtaining future employment are a normal consequence of criminal offending.22 Rather than being “out of all proportion” to the gravity of the offending there is an exact proportionality between sexual offending in the workplace and significant impediment to re- employment in any role where such risk might again arise.
[51] Moreover, the fact that the offending involved a person over whom the defendant had authority and occurred in a workplace environment, raises a set of discrete considerations. As this Court observed in Chugh v Police:23
… Given that the offending occurred in an employment context it is appropriate that future potential employers are not denied the opportunity to make a considered judgement in light of those circumstances. This Court should exercise care before making orders which would have the effect of concealing the fact of a conviction from those who have a legitimate interest in knowing. In some circumstances it is preferable for the offending to be noted by way of a conviction. It is then for the offender to explain why the circumstances of the offending should be viewed benevolently.
[52] Viewed in its totality, the defendant’s conduct on 18 February 2023 demonstrates that, without significant self-analysis and attitudinal change towards women, he poses a risk both to harmonious and productive employee relations and to the reputation of any future employer generally. Prospective employers should be
22 See Nash v Police, above n 8; and Chugh v Police [2015] NZHC 2356.
23 At [51].
entitled to assess this risk for themselves having regard to the specific requirements of any role on offer, likely engagement between the defendant and female staff, therapeutic work undertaken by the defendant since conviction and related considerations. This Court is effectively being asked to “airbrush” conduct about which any employer should, in my view, be entitled to make its own fully informed judgement. To do so would, in my view, be neither consistent with principle nor authority.
[53] I do not therefore consider there to have been any error in the Judge’s proportionality assessment.
Discussion — name suppression
[54] In oral argument Mr Mitchell acknowledged a strong correlation between the Court’s likely response to the two appeals, with the claim for permanent suppression greatly enhanced by any discharge without conviction and correspondingly, greatly diminished if the convictions were maintained.
[55] I nevertheless proceed with an orthodox, albeit brief, two stage analysis inquiring first into whether the statutory threshold for suppression under s 200 is met and secondly, referencing the discretionary component of the relevant test.
[56] In terms of the first stage, Mr Knight relies on the likelihood of extreme hardship to him, as a result, he says, of his inability to obtain future employment if suppression is not granted.24
[57] Likelihood in this context means there is a real and appreciable risk or possibility of the specified consequence occurring.25 It requires the contended consequence to be “more than a mere possibility” if publication were to occur and that the possibility “cannot be dismissed or ignored or described as remote or fanciful”.26
24 Criminal Procedure Act 2011, s 200(2)(a).
25 Wharekura v R [2022] NZCA 352 at [11].
26 At [11].
[58] Extreme hardship in turn imposes a “very high threshold”.27 What is required is to:28
… compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold.
[59] At the second stage, the court is required to consider whether name suppression is justified despite the overarching principle that justice should be administered openly. The onus is on the applicant to displace the presumption of open justice and the balance must “clearly favour” suppression.29 The more serious the alleged offending the greater the public interest in knowing who was associated with the events in issue.30
[60] Mr Knight does not establish extreme hardship. The consequences which he faces in terms of future employment are directly commensurate with the nature of his offending. Similar considerations to those informing the severe disproportionality test under s 107 apply here. Indeed, there is an obvious synergy between tests premised on consequences out of all proportion to the gravity of an offence and on extreme hardship.
[61] Like the District Court Judge, I do not therefore regard the statutory threshold as met.
[62] The Judge did not go on to undertake a stage two discretionary analysis. Nor am I obliged to. However, given the serious nature of the offending and the fact that it occurred within a workplace environment the principles of open justice would, in terms of any discretionary analysis I had been required to undertake, have assumed priority.
27 H v R [2023] NZCA 240 at [11].
28 D (CA443/2015) v Police [2015] NZCA 541 at [11].
29 H v R, above n 21, at [9].
30 Bangera v R [2022] NZCA 451 at [29].
Result
[63]I dismiss the appeals.
Muir J
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