L v The King
[2024] NZHC 3465
•20 November 2024
NOTE: THIS JUDGMENT HAS BEEN REDACTED TO COMPLY WITH S 200 CRIMINAL PROCEDURE ACT 2011. SEE
align="center">ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-241 [2024] NZHC 3465
BETWEEN L
Appellant
AND THE KING
Respondent
Hearing: 13 November 2024
Appearances: P B McMenamin for Appellant
M W Fulton for Crown
Judgment: 20 November 2024
Reissued: 4 August 2025
JUDGMENT OF EATON J
(appeal against conviction and sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
L v R [2024] NZHC 3465 [20 November 2024]
Introduction
[1] The appellant pleaded guilty and was convicted of two charges of assault on a child, her 13-year-old daughter.1 She was sentenced by Judge Couch to 12 months’ home detention with special conditions.2
[2] The appellant appeals her convictions and sentence contending that she should have been discharged without conviction. Alternatively, it is submitted that the sentence imposed was manifestly excessive.
The facts
Charge 1
[3] The appellant was living with her 13-year-old daughter in Christchurch. When the appellant went to wake her daughter for school at around 7 am on the morning of 3 April 2023, she saw empty blister packs of medication and vomit beside her daughter’s bed. The daughter told the appellant she had taken a large quantity of the appellant’s medication the previous night in a suicide attempt.
[4] The appellant became angry and yelled at the victim. She dragged her by her hair down the hallway and into the bathroom. The victim hit her head on a door handle. While on the bathroom floor, the appellant grabbed the victim’s hair and slammed the left side of her head against the bathroom door three times.
[5] The appellant then pulled the victim into her bedroom where she used her fist/forearm to hit the victim over her head nine or 10 times. She then kicked the right side of her daughter’s jaw, stomped on her stomach and ribs and kicked her on the head, shoulder and bottom.
[6] When the victim went into her bedroom to get changed, the appellant followed and pushed her onto the bed. She held her down with one hand and with the other grabbed a necklace chain (approximately one centimetre thick) and whipped it against
1 Crimes Act 1961, s 194(a) — maximum penalty of two years’ imprisonment.
2 R v L [2024] NZDC 21375.
the victim’s shoulder/arm and left leg about six times until the chain broke. The victim left the address to walk to the local petrol station and called the police.
[7] The summary of facts records that as a result of the 3 April 2023 assault, the victim suffered multiple bruises on her left arm, shoulder blade, and on her back. The assault with the necklace left red, raised marks with a distinct linear on her left arm and left lower leg. The representative assault charge captured each of the various assaults outlined.
Charge 2
[8] When spoken to by police, the victim disclosed that on an unspecified date earlier in the year, the appellant had become upset and when the victim asked if she was okay, the appellant “strangled” her using her hands to hold the victim’s neck. The appellant applied increasing pressure for 15 to 20 seconds with sufficient force that the victim found it hard to breathe and thought she was going to be killed. When the appellant eventually let go, the victim felt lightheaded and short of breath.
[9] The appellant was charged with a strangulation offence. That charge was amended to assault on a child.
District Court decision
[10] In addressing the application for a discharge without conviction, Judge Couch first considered the gravity of the offending. The offending was found to be serious with the five aggravating factors in relation to the first charge being the numerous assaults over an extended period, the vulnerability of the victim, the blows to the head, the nature of the injuries and the gross breach of trust. The second charge, which involved impeding the breathing of the victim was considered a “serious form of assault”. A starting point of two years and six months’ imprisonment was adopted.
[11] The Judge declined the invitation of Mr McMenamin for L to depart from the agreed summary of facts in relation to the injuries suffered. The Judge considered the particular passages of medical reports relied on by counsel to demonstrate the summary was inaccurate, were selective.
[12] The Judge allowed deductions of 10 per cent for guilty pleas entered four days before trial, five per cent for remorse and five per cent for background factors. The 20 per cent total deduction led to an adjusted starting point of two years’ imprisonment which the Judge assessed as reflecting the gravity of the offending.
[13] The Judge observed that the primary factor raised as a consequence of conviction was the appellant’s employment prospects within the field of mental health. The Judge considered that whether convicted or not, prospective employers will always have the right to ask whether L has been charged with a criminal offence. It was not a conviction that would impede her employment prospects.
[14] L’s application for a discharge without conviction was declined. By a fine margin Judge Couch considered that a two-year prison sentence could be commuted to one of 12 months’ home detention.
Principles
[15] An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.3 The appellate court must consider whether a miscarriage of justice has occurred.4 The appeal is a general one and normal appeal principles apply.5
[16] The Court may discharge an offender without conviction if that person is found or has pleaded guilty.6 Guidance as to when an offender may be discharged without conviction is provided by s 107 of the Sentencing Act 2002 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.
3 Jackson v R [2016] NZCA 627 at [6]-[16].
4 At [12].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
6 Sentencing Act 2002, s 106.
[17] It is well settled that in considering a discharge under s 106 of the Sentencing Act the Court should follow a three-step process in application of s 107.7 At the first step the Court must consider the gravity of the offending. In assessing gravity, the Court must take into account the aggravating and mitigating features of both the offending and the offender.8 The second step involves examining the direct and indirect consequences of a conviction for the particular appellant. The Court must be satisfied that there is a “real and appreciable” risk that any given consequence of a conviction will happen.9 The third and final step is to determine whether those consequences would be out of all proportion to the offending.
[18] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.11 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.12
Discharge without conviction
Gravity of L’s offending
[19] Assessing the gravity of the offence involves first, an initial grading of the actual offending and secondly a broad analysis of all relevant considerations including aggravating and mitigating factors.13
7 Prasad v Police [2018] NZHC 537 at [11]; Bolea v R [2024] NZSC 46; Ramirez-Alfonso v R
[2024] NZCA 545 at [20].
8 Bolea v R, above n 7, at [39].
9 R v Taulapapa [2018] NZCA 414 at [22].
10 Criminal Procedure Act 2011, s 250(2) and (3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at
[15].
12 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
13 Mathieson v Police [2019] NZCA 406 at [16].
[20] The Judge, with reference to five aggravating factors and that the appellant faced two quite discrete offences, concluded that the overall offending was serious, justifying a starting point of two and a half years’ imprisonment and that the guilty pleas, remorse and personal matters raised in the appellant’s affidavit reduced the overall gravity that is reflected in a two-year starting point.
[21] With particular reliance on the Court of Appeal decision in S v R,14 Mr McMenamin submits that the gravity of L’s offending was low, properly categorised as a single loss of control for a matter of minutes uplifted only by a separate single incident lasting a matter of seconds. He submits the Judge fell into error in binding the appellant to an agreed summary of facts in the face of medical evidence as to the actual injuries suffered by the victim. He submits the Judge understated the appellant’s level of remorse, the relevance of her confirmed diagnosis of PTSD and ADHD, her own mother’s death by suicide and the essential context of the offending being the appellant’s 12-month battle to facilitate the restoration of her daughter’s psychological health. Mr McMenamin submits the appellant had been pushed to the limits of her emotional vulnerability just as the appellant in S v R.
[22] For the Crown, Ms Fulton submits that the aggravating features of the offending are first the scale of the offending which cannot be classified as a single loss of control. Further, the attack featured injuries to the head and neck. Thirdly, the injuries to the victim recorded in the agreed summary of facts are submitted to reflect those observed by the doctor and reported by the victim and thus it was appropriate for L to be sentenced on the basis of the agreed facts and injuries. Ms Fulton reminds the Court that harm extends beyond the physical injuries suffered. Fourthly, the victim was vulnerable and the offending involved a gross breach of trust. Finally, Ms Fulton submits L’s offending engaged gratuitous violence. She submits that the gravity of the offending is serious however when assessed against personal factors including the guilty pleas, remorse, previous good character, rehabilitative steps, and background factors, this can be reduced to moderately serious.
14 S v R [2022] NZCA 334.
Analysis
[23] The earlier assault involved the appellant grabbing the victim around the neck for 15 to 20 seconds leading her to believe she was going to die. The second more prolonged assault involved a variety of assaults using both hands and feet in attacking the head and body of the victim. L then resorted to using a chunky necklace to repeatedly strike the victim across her arms and legs.
[24] Having regard to the agreed summary of facts, the overall offending was appropriately categorised as serious. These were nasty assaults against a highly vulnerable young person.
[25] I agree with Mr McMenamin that the physical injuries suffered did not aggravate the offending. Injuries are often an important indicator of the degree of force used. The summaries of facts, referring to dragging, kicking, stomping, slamming and whipping, strangling and fear of death, certainly implied very serious assaults, likely to have resulted in a serious injury.
[26] At sentencing, Mr McMenamin, who was not acting for L when the summary of facts was agreed and the guilty pleas entered, referred the Judge to medical records compiled following her hospital admission that described the victim’s injuries as “superficial”. Those records described red welts consistent with the use of the necklace chain, but otherwise did not describe injuries that matched the agreed summary.
[27] The Judge considered the appellant was prohibited from advancing a submission that the medical evidence was at odds with the agreed summary of facts. Alternatively, the Judge criticised counsel for being selective with medical records.
[28] As regards the first issue, I disagree with the Judge that a defendant ought not be permitted to advance a submission that is contrary to an agreed summary of facts. Of course, a defendant cannot go behind an agreed summary of facts insofar as those facts relate to matters that are within the direct knowledge of the defendant. But in relation to a fact that is beyond a defendant’s knowledge, a defendant must be entitled to point to independent and reliable evidence if that evidence conflicts with the
summary of facts. The summary of facts referred to multiple bruises on the left arm, shoulder blade and back and the red welts left by the chain, but it is not suggested L had any direct knowledge of the injuries inflicted on her daughter.
[29] The medical report was thorough and referred to bruising to the left elbow, a bruise below the left knee and a possible bruise to the back of the right thigh, and otherwise referred to red marks assessed as consistent with being struck with a linked chain. It recorded “no chest or abdominal bruising noted, no back bruising noted, no spinal body tenderness, no c-spine tenderness” and under the heading ‘impression’ referred to “evidence of physical abuse with alleged assault, superficial injuries on exam but no obvious chest, abdominal, spinal or neurological injuries on exam”.
[30] In assessing whether the harm suffered by the victim was an aggravating factor of the offending, the medical report was the more reliable record of injuries. Ms Fulton is right that emotional harm is also a relevant consideration, however, no victim impact statement was available.
[31] The Judge described counsel’s summarising of the medical reports as “very selective”. In particular the Judge relied on the “final opinion” of the paediatrician as follows:
In my opinion, [victim] has extensive injuries, consistent with physical assault and it was concerning in particular to note that [victim] disclosed being hit previously by her mother including one episode of being held around the neck. Her mother’s response to [victim] having disclosed intentional ingestion of a large quantity of medication was also concerning. Firstly, with respect to [victim]’s disclosure of assault, and then being sent to the local dairy. There does not appear to have been consideration given to seeking medical or mental health care for [victim] in light of a significant self-harm episode.
[32] In describing counsel’s submission as “selective”, presumably the Judge must have been referring to the reference of “extensive injuries”. I agree with Mr McMenamin that reference likely reflects there being a number of findings of examination and was not intended as an indicator of either the force used, or the harm caused. I think the Judge was unfair to describe defence counsel’s referencing of the medical reports as “very selective”.
[33] The description of the injuries as “superficial” is, I think a fair reflection of the primary injuries noted, some bruising and red welts. I do not think an injury of that nature meets the threshold of an aggravating factor of the offending.
[34] The language of the summary painted a graphic picture of the assaults. I accept that the violence inflicted might be described as gratuitous in that it was unnecessary and excessive, but in the context of criminal sentencing, that description is better reserved for more extreme violence against a defenceless victim. To categorise L’s actions as gratuitous violence fails to take into account the very personal, distressing and triggering circumstances that gave rise to the assault.
[35] Also relevant to assessing the gravity of the offending was evidence of L’s personal background. In fixing a five per cent deduction for personal background factors and in describing those factors as self-reported, the Judge considered there to be little by way of causal connection between L’s personal history and the offending.
[36] The Judge had the benefit of an affidavit from L, a report from a Dr O’Dwyer, an ACC report and a counsellor’s report. It is not necessary to detail the personal matters referred to in that material, suffice to say very personal and traumatic events in L’s past were traversed. The reports confirmed that as at the date of the April 2023 offending, L had been diagnosed with PTSD and ADHD and that she had been battling for a period of around 12 months with her daughter’s psychological health. Further, L had suffered the trauma of losing her mother to suicide about ten years earlier, with the anniversary of her mother’s death, having very recently passed.
[37] There can be little doubt that the triggering event that gave rise to the April assault was her daughter’s disclosure that she had stolen medications from the appellant and taken an overdose in an attempt to end her own life. The fact of an earlier assault points to the appellant being on a knife edge and vulnerable. I agree with Mr McMenamin that L’s personal circumstances are of real significance in assessing the true context of her offending.
[38] When considered alongside the appellant’s previous good character, the belated guilty pleas, expressions of remorse and continued engagement with her
counsellor, I accept that the overall gravity of L’s offending is reduced to the moderate level, albeit at the higher end of that categorisation.
Consequences of a conviction
[39] When considering the direct and indirect consequences of a conviction on a defendant, the Court does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk of such consequences.15
[40] L deposes that having been shaken by the experience of her mother’s death and with the objective of helping others who are experiencing personal trauma, and to be a better mother for her daughter, in 2014 she resolved to obtain qualifications and employment in mental health. She enrolled in the Open Polytechnic because she had left school without any qualifications. She had to firstly achieve NCEA level 2 before progressing to tertiary studies. [redacted]. She continued working in that field until feeling compelled to resign when confronted with her daughter’s struggles in March 2022. She has since resumed her studies.
[41] L believes convictions preclude her from working in mental health. Earlier this year she re-engaged with a former part-time employer in that field but following police vetting, that employment was terminated. L believes that security checks undertaken by perspective employers have been the obstacle to her securing employment in the mental health sector and she is “quite sure” that a conviction would leave her ineligible for employment in this field.
[42] The Judge considered that in her preferred employment field vetting would be the norm, meaning any prospective employer would learn of L’s offending. The Judge observed that that since being charged the appellant had unsuccessfully sought employment, one employer having undertaken a police check. The Judge determined that avoiding a conviction would not allow the appellant to keep the facts of the case secret.
15 DC (CA47/2013) v R [2013] NZCA 255 at [43].
[43] The Judge accepted that it was most likely that a conviction would preclude the appellant from working in mental health. However, the Judge was of the view that that consequence was a result of the appellant’s conduct that gave rise to the charges and not any conviction.
[44] Mr McMenamin submits it cannot be established that every employer would enquire as to whether L has ever been charged with a criminal offence. He contends that an employer may well consider the fact of a discharge without conviction itself a significant feature. A discharge would permit the appellant an opportunity to explain her offending to a prospective employer.
[45] Ms Fulton submits that the industry in which the appellant seeks to maintain employment is one dealing with vulnerable people, being children or vulnerable adults, and prospective employers will reasonably require police vetting and seek disclosure of any charges the appellant has faced.
Analysis
[46] I agree that as a matter of principle the Courts should be hesitant to usurp the role of a particular employer or industry body to determine the significance of a particular conviction.16
[47] I accept that over an extended period the appellant has demonstrated her desire to secure qualifications and to be employed in the mental health sector. I agree with Ms Fulton that particular sector is one where a perspective employer or body is very likely to undertake a police-vetting check as opposed to a conviction history check. Persons working in mental health are likely to be exposed to vulnerable clients and triggering circumstances. I accept that the facts behind admitted criminal offending, whether dealt with by way of discharge without conviction, withdrawn or otherwise may well be relevant in assessing a person’s suitability for proposed employment. In those circumstances I agree with the Judge that it is not a conviction that is the obstacle to successfully securing employment, rather it is the offending.17
16 Stewart v Police [2015] NZHC 165 at [30]; Maraj v Police [2016] NZCA 279 at [36]; Kahu v R
[2018] NZHC 2521.
17 Parker v Police [2016] NZHC 2524 at [22] and [29]; Irvine v Police [2024] NZHC 1231 at [25].
[48] If L desires employment in the mental health space and especially if she seeks to work with at risk youth, the context of her offending will be of legitimate interest to potential employers, regardless of whether she was convicted or not.
[49] Mr McMenamin urged the Court to consider this case to be analogous to S v R. I agree with Ms Fulton that there is limited value in considering the facts that arise in other cases where discharges without conviction have been considered. I nevertheless note that in S v R, over and above the employment issue, the Court of Appeal referred to evidence that a conviction would negatively impact on the appellant’s mental health and rehabilitation. Similar evidence is not advanced in L’s case.
[50] I agree with the Judge that it is highly likely that convictions will be an obstacle to L’s future employment in the mental health space. Against a background where she has only worked in that space on a part time basis in the past, and is still continuing her studies, I assess that consequence as being moderate.
Proportionality and discretion
[51] I accept that this offending (both offences) occurred in a specific context and that the appellant has the right supports in place to continue to address the complicated factors that gave rise to her highly inappropriate and disturbing response to a traumatic situation. I acknowledge that she has paid a heavy price for her offending. Her separation from an only child who, I have no doubt, she loves dearly and has committed her adult life to, is an enduring punishment for this offending.
[52] However, the appellant pleaded guilty to two discrete acts of violent offending, both involving attacks to the neck or head of a very vulnerable victim. I have assessed both the gravity of offending and the consequences of conviction to be moderately serious. It follows that I am not satisfied that the consequences of conviction would be out of all proportion to the gravity of the offending. Ultimately, I find myself in agreement with the sentencing Judge, albeit for slightly different reasons, that a discharge without conviction was not appropriate.
Manifestly excessive?
[53]Was the end sentence of 12 months’ home detention manifestly excessive?
[54] The appellant submits, primarily on the basis of S v R, that the global starting point of two and a half years’ imprisonment taken by Judge Couch was excessive. Both counsel agree that it appears the Judge took a starting point of around 18 months for the representative charge uplifted by a further 12-months. Mr McMenamin submits this starting point was excessive. Ms Fulton submits it was stern but available. She distinguishes L’s offending from that in S v R where the offending was described as occurring in the context of children misbehaving and or hurting one another and which the court considered to be low-level offending.
Analysis
[55] For the reasons I have outlined, I consider there to be a disconnect between the summary of facts and the injuries sustained by the victim that led the Judge to err in finding that the harm caused to the victim was an aggravating factor of the offending. I do not accept that the offending involved gratuitous violence.
[56] In fixing the global starting point, care was required to ensure that the sentencing Court recognised the charge reduction in relation to the earlier assault. By agreement the summary of facts did not change, but the maximum penalty had reduced from seven years’ imprisonment to one of two years’ imprisonment.
[57] Ms Fulton adopted the submissions advanced in the District Court that the 18-month starting point for the April 2023 offending was appropriate having regard to the 18-month starting point adopted for the most serious and representative offending against one of five victims in R v Vickers.18 That victim was the defendant’s eldest stepdaughter who was assaulted over a four year period by acts of kicking, pinching, twisting or pulling ears, kicking with full force to the backside, being slapped about the body and face, thrown around and struck with a wooden spoon.
18 R v Vickers DC Tauranga CRI-2009-070-7100, 2 December 2009.
[58] It appears the Judge accepted that submission in adopting an 18-month starting point for the representative assault charge. In my view L’s assault was less culpable and in effect involved two discrete assaults over a short period, that was excessive.
[59] I consider the appropriate starting point for the April 2023 offending to be in the region of 12 months’ imprisonment and a global starting point, following consideration of the totality principle to be no higher than 18 months’ imprisonment.
Mitigating factors
Analysis
[60] On appeal there is no issue with the 10 per cent credit allowed for L’s guilty pleas. Mr McMenamin contends that the five per cent deduction for remorse was too low. I accept that L does express her remorse in her affidavit, but it seems she still struggles to acknowledge full responsibility for the various physical assaults outlined in the agreed summary of facts. Another Judge may well have granted a higher deduction for remorse, but I am not satisfied that the five per cent deduction was too low.
[61] Ms Fulton responsibly acknowledges that L was entitled to a discrete deduction to recognise her previous good character. At the age of 37, L appeared as a first offender. She was entitled to a credit in the region of 10 per cent for her previous good character.
[62] Mr McMenamin’s real focus, in terms of the credits allowed was on the five per cent deduction for background factors. He submits that level of deduction fails to acknowledge the clear causal connection between L’s past and the very trying and unique circumstances that were in play in April 2023. I agree. I am satisfied that the matters personal to L that I have briefly outlined above, in particular her diagnoses, her mother’s suicide, her commitment to working with her daughter who was struggling with psychological issues and the shock of being confronted with her daughter’s attempted suicide have a strong causal connection to her losing self-control and resorting to violence. In my view a deduction of 15 per cent was appropriate to reflect that causal connection.
[63] From a starting point of 18 months’ imprisonment and total deductions of 40 per cent, I arrive at an end sentence of 11 months’ imprisonment. I take a different view to the Judge in terms of final outcome. I am comfortably satisfied that a sentence of imprisonment would not be the least restrictive appropriate outcome for L. I am satisfied that the sentencing purposes of denunciation and deterrence are largely achieved through the process of prosecution and conviction.
[64] In my view, the appellant’s rehabilitation is an important consideration. The pre-sentence report recommended, as an alternative to home detention, a sentence of community detention and supervision. L was not assessed as benefiting from intensive supervision, no doubt because she had an established relationship with her counsellor. Further, in my view, an appropriate sentence is one that permits and encourages L to resurrect the currently broken relationship with her daughter. That would be challenging while subject to a sentence of home detention.
[65] Mr McMenamin confirms that L has continued to serve her sentence of home detention since 4 September 2024. She has now served two and a half months in that sentence. I consider a sentence of community detention coupled with supervision to be appropriate.
Result
[66] The sentence of 12 months’ home detention is quashed and substituted by a sentence of:
(a)four months’ community detention with a curfew to the address as nominated in the pre-sentence report from 7 pm until 7 am daily; and
(b)12 months’ supervision under the same special conditions as were imposed on the home detention sentence.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
K J McMenamin & Sons - P B McMenamin, Christchurch
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