Lata v Police
[2020] NZHC 187
•17 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-475
[2020] NZHC 187
BETWEEN SUMAN LATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 February 2020 Counsel:
J Hickey for Appellant
S Rankin for Respondent
Judgment:
17 February 2020
ORAL JUDGMENT OF WHATA J
Solicitors: Meredith Connell, Auckland
LATA v POLICE [2020] NZHC 187 [17 February 2020]
[1] Ms Lata appeals the decision of the District Court to decline discharge without conviction on one charge of assault.
[2] Leave to appeal out of time was sought and not opposed. Leave is therefore granted.
Facts
[3] Ms Lata and the victim are whānau. Ms Lata is the victim’s aunty. After the Christchurch earthquakes, Ms Lata welcomed the victim and her son into her home where the victim stayed for some months. Their relationship then soured, and they lost contact with each other until relatively recently. It appears, however, that Ms Lata maintained a closer relationship with the victim’s son who, on 22 June 2018, asked Ms Lata to pick him up from the local mall. She did so, and he stayed with her for the night.
[4] A little after 3.00 pm the following day, the victim arrived at Ms Lata’s home. Ms Lata met the victim at the front door and told the victim to leave. The victim refused to leave. The victim repeatedly asked to see her son and Ms Lata refused to allow her to do so. The victim saw her son inside the house and tried to make her way into the house towards him. Ms Lata pushed the victim, causing the victim’s head to impact against the doorway. Ms Lata grabbed the complainant and slapped her about the face. The victim grabbed Ms Lata’s hair, in an attempt to defend herself, and they fought. The victim received scratches to her face.
District Court decision
[5] The District Court Judge had the benefit of a restorative justice report, victim impact statement and an affidavit of Ms Lata. From this material the Judge identified deep seated issues between Ms Lata and the victim and he saw those issues falling equally on both sides. He noted that Ms Lata did apologise and that the victim accepted her apology. He also noted that the victim is gutted by the whole situation and the fact her own family could have put her through this. The victim’s opposition to a discharge is also recorded.
[6] The Judge referred to Ms Lata’s background at some length. She was born in Fiji and she is currently employed as an environmental specialist for Synlait Milk, having previously worked for Life Technology. It is noted that for the last two to three years in her work with Life Technology, Ms Lata travelled overseas to manufacturing plants in India, the United States, Canada, Australia and Singapore every two or three months. Ms Lata’s current employment, however, does not require such travel.
[7]The Judge described the gravity of the offending in this way:1
[14] The assault here involved the initial push, the head colliding with a doorway and a slap about the face. Recognising it was the defendant’s address, noting wrongly, she tried to keep a mother from her son. I would see the assault as a low end of a moderate to low end offence.
[8]As to consequences, the Judge noted:
[15] … the applicant as I have said has stated in her affidavit, “When I change jobs I have to have a drug test and a police clearance”. That is understandable as I have already commented. She goes no further, there is nothing to indicate a change in employment is imminent. It may occur. She states a criminal conviction will affect “me working overseas”. She refers to overseas travel with a previous employer. She has not had to travel with her current job and I concur with the police submission that this is all for the moment speculative. Of course, there may be issues, but travel visas can be sought and processed well prior to any intended travel. It has been recognised by the Courts that countries do guard their boundaries and should have the ultimate say with reference to all available material as to who enters and who does not enter.
[9] In the result the Judge was not prepared to exercise the discretion to discharge without conviction. She stated:
[16] … The matters that weigh with me in particular; travel cannot be anticipated to flow from current employment and current employment is safe.
…
[10] It does not appear that any sentence was imposed but the Judge does make a protection order in favour of the victim.
1 New Zealand Police v Suman Lata [2019] NZDC 10454.
Fresh evidence
[11] Ms Lata seeks leave to file evidence from Mr Christopher Hammonds, a travel consultant, and on her own behalf, a further affidavit in support of the appeal. It is opposed as being not fresh, though Mr Rankin, responsibly in my view, concedes that it is cogent insofar as it goes to matters in issue.
[12] In terms of the application, Mr Hickey explained that it was assumed that Mr Hammonds’ evidence was not necessary. With the benefit of hindsight, he accepts he may have been mistaken about that. In those circumstances, in my view, it would be unfair to Ms Lata to deprive her of the opportunity to table cogent evidence going to the issue of discharge. The application for leave to file evidence is therefore granted.
Victim’s position
[13] I also have a note from the victim’s adviser. In that note, the victim’s position is recorded. She says she continues to have fears for her children and her safety and would like to keep the protection order in place. There is no mention of the appeal against the refusal to discharge.
Jurisdiction
[14] An appeal against a refusal to grant discharge without conviction is an appeal against conviction under s 232 of the Criminal Procedure Act 2011.2 The threshold test is whether a miscarriage of justice will have occurred for any reason if the Judge erred in applying the principles under s 107 of the Act.3
Principles of discharge without conviction
[15]It is common ground that the Court must apply a three-stage test:4
2 See Jackson v R [2016] NZCA 627 at [15].
3 At [12].
4 R v Taulalapa [2018] NZCA 414 at [22].
(a)Identify the gravity of the offence, with reference to all aggravating and mitigating features relating to the offending and the offender;
(b)assess the direct and indirect consequences of conviction for the offender; and
(c)determine whether those consequences are out of all proportion to the gravity of the offence.
[16] The Court has a residual discretion to discharge without conviction under s 106 if the relevant criteria are met.
Gravity of the offending
[17] The Judge assessed the gravity of the offending as at “a low end of a moderate to low end offence”. I agree with this description of the offending per se. Relevantly, the offender was in her own home and the victim was the aggressor insofar as she attempted to force her way into Ms Lata’s home. That is not to criticise the victim. She was wanting to retrieve her son. But I am concerned here with Ms Lata’s culpability. In this regard, Ms Lata swore an affidavit as to the circumstances of the offending and she was not cross-examined on that affidavit. Her admission to the summary of facts, however, means that (where relevant) the summary is to be preferred. Relevantly, however, it is clear that she was acting in a protective way to a mokopuna. As an elder within a family, she might be expected to do so. She thought, wrongly she now accepts, that she had a proper basis for resisting the entry by the victim.
[18] The right to deny entry into one’s home by reasonable force is a longstanding one. It is affirmed at s 55 of the of Crimes Act 1961, which states:
55 Defence of dwellinghouse
Every one in peaceable possession of a dwellinghouse, and every one lawfully assisting him or her or acting by his or her authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of the dwellinghouse by any person if he or she believes, on reasonable and probable grounds, that there is no lawful justification for the breaking and entering.
[19] While in this case Ms Lata’s guilty plea is an admission of wrongdoing, her culpability was plainly low in terms of the facts of the offending per se, given the context within which it occurred.
[20] I would, however, also go further than the Judge. It is relevant to the assessment of gravity that Ms Lata has no prior convictions for violent offending and there is no evidence of a propensity to violence. The present offending was thus one- off and context-driven. I would therefore put the offending at the low to very low end of the spectrum for offending of this kind. It is also relevant, as Mr Rankin accepts, Ms Lata completed a PAVE Women’s Stopping Violence programme and attended a restorative justice process. All of these factors weigh heavily, in my view, in demonstrating that her culpability and the gravity of offending assessed by reference to her personal circumstances as well, was very low.
Consequences
[21] Turning then to the consequences for Ms Lata. First, she has no prior convictions and I agree with Mr Hickey that a conviction at this stage in her life is a black mark against her. Secondly, she is currently gainfully employed in an area which requires a certain level of expertise and may, in the future, involve overseas travel, particularly if she chooses to change jobs. There is, in my view, nothing speculative about that. As she deposes in her affidavit, her previous employment required regular overseas travel. It can be inferred that her specialist expertise lends itself to such travel. In this regard, I have read the evidence of Mr Christopher Hammonds, Managing Director of World Travel Limited. He has extensive experience in the travel industry. I am also satisfied he possesses sufficient expertise to provide evidence of substantial help to me on the implication of a conviction for Ms Lata. He observed that a conviction for assault is likely to make travel to many countries difficult and that if a person needs to travel overseas for work purposes, the lengthy processing period is going to mean that they will be unlikely to obtain travel to work when they need to. That difficulty, in my view, raises a real risk of adverse employment consequences for Ms Lata. I think I can also take judicial notice of Ms Lata’s age and the difficulties for persons of her age in obtaining employment.
[22] To this extent, therefore, I also disagree with the Judge’s assessment of risk to Ms Lata. Should Ms Lata need or wish to change employment, there is a real and appreciable risk that her employment opportunities, in a field for which she has expertise and experience, could close for her.
[23] I also observe at this stage, as the Judge correctly noted, it is normally for the overseas authorities to determine whether persons who have offended violently ought to be allowed into their country.5 But, unlike those authorities, I have the benefit of a detailed understanding of the background to the present offending and the offender and it remains necessary for me to assess whether a conviction, in that context, is out of all proportion to the offending.
[24] Coming then to the overall merits, it is clear to me that Ms Lata’s one-off offending in a peculiar and fraught context, would make conviction for that offending out of all proportion to that offending and to her personally.
[25] The appeal is therefore allowed. The conviction is quashed. Ms Lata is discharged without conviction. I record that, for the benefit of the victim, this order does not affect the protection order.
5 Ho v R [2016] NZCA 229 at [15].
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