Law v The King
[2024] NZHC 1849
•8 July 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-000031
[2024] NZHC 1849
BETWEEN CHUAN SHENG LAW
Appellant
AND
THE KING
Respondent
Hearing: 2 July 2024 Counsel
V C Nisbet for Appellant
L R van der Lem for Respondent
Judgment:
8 July 2024
JUDGMENT OF RADICH J
[1] In April 2024, Judge Mika sentenced Chuan Law to six months’ home detention1 on a charge of sexual connection with a young person2 and on a charge of meeting a young person following sexual grooming.3 The Judge declined Mr Law’s application for discharge without conviction and his application for permanent name suppression.
[2] Mr Law brings this appeal from the Judge’s refusal to grant the discharge without conviction application. Failing that, an appeal is brought from the sentence
1 R v Law [2024] NZDC 8122 [Sentencing Decision]. Judge Mika’s sentencing indication of 17 March 2023 was attached to the Sentencing Decision and can be regarded as forming part of it: R v Law DC Hutt Valley CRI-2022-096-2234, 17 March 2023 [Sentencing Indication].
2 Crimes Act 1961, s 134(1); maximum penalty of 10 years’ imprisonment.
3 Section 131B; maximum penalty of seven years’ imprisonment.
LAW v R [2024] NZHC 1849 [8 July 2024]
imposed on the basis that it was manifestly excessive and that a community sentence with supervision was appropriate.4
[3] The overarching issue for the Judge was as to where the case sat in the spectrum of the options that were available. Those options ranged from the discharge that was sought, at one end, to imprisonment, which can be the likely sentencing outcome for sexual offending against children, at the other.5 The Judge adopted what is, essentially, a mid-point in that spectrum. The issue for me now is to consider whether the Judge erred and whether a miscarriage of justice has occurred such that an appeal should be allowed.6
The relevant facts and circumstances
The offending
[4] When the offending occurred, the victim was 15 years of age and Mr Law was 26 years of age. They were both members of a (primarily online) community that involves members taking on different identities. It is described as an inclusive community that can include consensual intimacy on the part of its members. It was within the context of this community that Mr Law and the victim began to message each other through messaging applications. The messaging led to exchanges of a sexual nature. Mr Law suggested that the victim might come to his apartment. However, because that was too far for the victim to travel, they arranged to meet in Seaview, Lower Hutt, on the evening of 1 April 2022.
[5] During the online conversations between them, the victim confirmed to Mr Law that he was 15 years of age and said that Mr Law could go to prison over the activities they were contemplating. Mr Law’s reply was that he was aware of this. Mr Nisbet put it, during the hearing, on the basis the victim was 15½ years of age, that Mr Law told him that he was content to wait until he turned 16, but that ultimately it was agreed that they would meet.
4 The Judge’s refusal to grant permanent name suppression is no longer challenged.
5 Kennedy v R [2011] NZCA 569, [2011] BCL 837 at [8].
6 In accordance with the tests on appeal discussed in [24]–[30] below.
[6] As arranged, on 1 April 2022, Mr Law drove his car to the agreed location. The victim was waiting. He got into the car. Having found an appropriate place to park, both the victim and Mr Law got into the back seat. There, they had what has been described as “consensual sexual intercourse” by the sentencing Judge.7
Mr Law’s subsequent conduct
[7] When Mr Law was contacted by the police, arrangements were made through counsel to attend a police interview at an early time. I accept Mr Nisbet’s submission that Mr Law was, from that time, compliant and that he was prepared to be frank and honest about the contact. He described the circumstances openly with the police interviewer, maintaining the position that he received a positive response from the victim both before and after the sexual contact. However, as Mr Law has said in letters he wrote to Judge Mika, he understands that his actions led to distress and trauma and he is remorseful.
[8] Following the complaint, he approached WellStop and attended regular sessions there.8 In addition, he engaged Dr Justin Barry-Walsh, a forensic psychiatrist. Dr Barry-Walsh’s advice to the Court shows the way in which Mr Law was open with him about the incident and about sexual abuse that Mr Law had, himself, been subject to as a young person. Dr Barry-Walsh described the sexual abuse that Mr Law had suffered from the age of 14 and the relationship between that abuse and the offending here. He described Mr Law’s past experiences as normalising sexual relationships between males of disparate ages, including those under the age of consent. Accordingly, as Dr Barry-Walsh put it, this meant that Mr Law did not have a good understanding of the harm that might arise because of the age disparity, the vulnerability of the younger person and the inherent power imbalance involved in the offending.
[9] It is sufficiently clear from Dr Barry-Walsh’s report and from Mr Law’s letters to the Court that the understanding described by Dr Barry-Walsh as lacking has since
7 Sentencing Indication, above n 1, at [3] – reflecting the police summary of facts, to which Mr Law pleaded guilty.
8 WellStop provides sexual abuse counselling. It has indicated that its process limits its ability to engage fully with a client in assessment and treatment until such time there is a clear indication on the outcome of a court process.
been obtained. Mr Law has taken a number of proactive steps to address his offending and his own past sexual trauma.
The impact on the victim
[10] However, none of that can take anything away from the emotional harm that the victim has experienced. In the victim impact statement, the victim’s mother has described that emotional harm as being “immeasurable”. She has described the ways in which the victim has undergone significant changes in behaviour and life style, including becoming more anxious. He is in need of ongoing medication and counselling, has missed a good deal of schooling and is on what has been described in the statement as “a long road to recovery”.
Mr Law’s employment
[11] Mr Law’s employment with a significant national institution has been terminated. It was a senior role, which followed the completion of a Bachelor of Commerce degree, a period as a practice manager for a psychotherapy practice and then several promotions within the national institution.
[12] As Mr Law said in his letters to the District Court, he had failed to notify his employer about the charges against him until soon before the sentencing hearing in the District Court. He acknowledged that, in doing so, he had acted inappropriately such that the institution’s trust in him could not be maintained.
The Judge’s decision
Refusal of discharge without conviction application
[13] The Judge found Mr Law’s offending to be ‘moderate to serious’ for this category of offending.9 He found the aggravating factors of the offending to be the victim’s vulnerability (and on the basis that the consensual nature of the sexual activity was due to Mr Law having manipulated him through the exchange of messages), the
9 Sentencing Decision, above n 1, at [22].
11-year age disparity, predetermination and the impact of the offending on the victim.10
[14] The Judge did not consider there to be any mitigating factors relating to the offending itself but identified a number of mitigating factors relating to Mr Law: his early guilty plea, his previous good character (having no previous convictions), his remorse, his efforts to rehabilitate, his engagement in an EAP programme, his offer of an emotional harm reparation payment for the victim and the sexual abuse he had suffered himself as a young person.11
[15] The Judge did not consider that the direct consequences of a conviction – the potential (at that stage) of loss of employment – would be out of all proportion to the gravity of the offending and so the application for discharge without conviction was declined.
Sentencing
[16] The Judge adopted a global starting point for both charges of three years’ imprisonment. He did so by reference to the same set of aggravating factors as are described in [13] above and by reference to King v Police12 and Veltmeyer v Police13.
Mitigating factors saw the Judge applying discounts amounting to 65 per cent:14
(a)25 per cent for the early guilty plea;
(b)20 per cent for previous good character;
(c)10 per cent as a result of the connection between the offending and the Mr Law’s reported sexual abuse as a youth; and
10 At [9]–[12].
11 At [14]–[21].
12 King v Police HC Timaru CRI-2009-476-24, 15 December 2009, where a starting point of two and a half years’ imprisonment was taken for one charge of sexual connection between the defendant (aged 21) and the victim (aged 14).
13 Veltmeyer v Police [2014] NZHC 1419 High Court, Auckland, where a starting point of three years’ imprisonment was upheld on appeal for one charge of sexual connection between the defendant (aged 21) and the victim (aged 14).
14 Sentencing Indication, above n 1, at [15]–[16] and Sentencing Decision, above n 1, at [30]–[32].
(d)10 percent for remorse and through the steps taken to rehabilitate and address his past sexual trauma.
[17] The discounts produced a potential sentence of 12 months’ imprisonment. The Judge considered imprisonment to be inappropriate in the circumstances and so turned to the question of whether the appropriate sentence was home detention or whether a lesser sentence of community detention with supervision could be imposed. He found that community detention “simply is not an appropriate sentence” given the gravity of the offending.15 Accordingly, he sentenced Mr Law to six months’ home detention with a range of conditions including attendance at an assessment for harmful sexual behaviour programme and undertaking any counselling, treatment or programmes recommended in the assessment.
Mr Law’s position
[18] It is said for Mr Law that, in all of the circumstances, the sentence was just too severe. It was, it is said, manifestly excessive. The way in which Mr Law was frank and honest with the police from the outset is emphasised. The appellant has, it is said, acknowledged that the decision that he made was fundamentally wrong. However, the point is made that there was no real targeting of the complainant because he was underage. The community they were both participating in (described in broad terms in [4] above) was open to all ages and age considerations were, it was said, something that was discussed openly between Mr Law and the victim. Nonetheless, both agreed to proceed with the sexual meeting.
[19] The appellant, it is said, believed that during and after the meeting between him and the victim they maintained mutual respect and understanding and sought to ensure that they were both comfortable with what they were doing. No one, it is said, was coerced and they continued to maintain friendly contact with each other after the event. However, they stopped talking when the victim informed Mr Law that the online chats between them had been deleted by the victim in order to protect Mr Law.
15 Sentencing Decision, above n 1, at [36].
[20] Mr Nisbet described Mr Law as having done his utmost, after police contact was initiated, to acknowledge the offending and to obtain professional help and guidance. He did, it is said, everything in his power to endeavour to right the wrongs.
[21] In those circumstances, it is said, a sentence that provided Mr Law with the support that he needed for his rehabilitation was needed and that a community sentence with supervision is the appropriate response.
The Crown’s position
[22] The Crown says that a case for a discharge without conviction here cannot be made out. The consequences are not, it is said, out of proportion to the gravity of the offending because the loss by Mr Law of his job was a consequence of his failure to disclose the offending, and of the offending itself, rather than being a consequence of the conviction. The authorities relied on in the District Court are, it is said, distinguishable.
[23] The Crown’s primary submission on the sentencing appeal is that a sentence of six months’ home detention is itself a substantial departure from a sentence of imprisonment, which is the most likely outcome for sexual offending against youths.
Approach on appeal
[24] An appeal against the refusal to grant a discharge without conviction is an appeal against conviction and sentence.16 An appellant must, under s 232(2) of the Criminal Procedure Act, satisfy the Court that:
(a)the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)in any case, a miscarriage of justice has occurred for any reason.
[25] In s 232(4) “miscarriage of justice” is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that has either created
16 Jackson v R [2016] NZCA 627 at [15]–[16].
a real risk that the outcome of the trial was affected, has resulted in an unfair trial or has resulted in a trial that was a nullity. The term “trial” includes a proceeding in which the appellant pleaded guilty.17
[26] The Court must allow an appeal and set aside the conviction under the provision if a miscarriage of justice has occurred through a material error by the sentencing judge in entering conviction or in applying the principles for discharging an offender under the Sentencing Act.18
[27] If the appeal against the Judge’s refusal to grant Mr Law’s application to discharge him without conviction does not succeed, then the appeal against sentence falls to be considered.19 The sentence appeal proceeds under s 250 of the Act, which provides that a sentence appeal must be allowed where the Court is satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. Under s 251 of the Act, the Court may impose another sentence or vary the sentence.20
[28] On the appeal against discharge without conviction, the appellant bears the onus of satisfying this Court that the District Court’s decision was wrong. The appeal proceeds by way of rehearing, on the basis set out in Austin, Nicholls.21
[29] However, in assessing whether the correct sentence was imposed, the Court does not start afresh or simply substitute its own opinion for that of the sentencing Judge.22 Rather, an appellant must show there to have been a material error before the Court goes on to form its own view of the appropriate sentence.23 The Court will not generally intervene unless a sentence is manifestly excessive24 and whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.25
17 Criminal Procedure Act 2011, s 232(5).
18 Jackson v R, above n 16, [2016] NZCA 627 at [12].
19 At [13].
20 At [14].
21 H (CA680/11) v R [2012] NZCA 198 at [36]; Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
23 At [30].
24 At [35].
25 At [36].
[30]As observed in Johnson v New Zealand Police, the error principle recognises:26
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
Was the Judge wrong to refuse the application for discharge without conviction?
Legal threshold for a discharge without conviction
[31] Under s 107 of the Sentencing Act, a Court may only discharge an offender without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The section requires the Court to ask three sequential questions, as the Judge did:27
(a)What is the gravity of the offence?
(b)What are the direct and indirect consequences of a conviction?
(c)Are those consequences out of all proportion to the gravity of the offending?
[32] When considering the gravity of the offending under (a), the court should consider all aggravating and mitigating factors relating to the offending and to the offender. 28 The gravity of the offending under s 107 is informed by the culpability of the offender’s conduct determined on an assessment of the facts, rather than by the nature of the charge or by a comparison with other cases involving the same offence.29
[33] In terms of (b), for the direct or indirect consequences of a conviction to be material, there must be a real and appreciable risk they would occur should the conviction stand.30
26 Johnson v New Zealand Police [2023] NZHC 3748 at [6].
27 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17]; R v Blythe [2011] NZCA 190,
[2011] 2 NZLR 620 at [14]; DC (CA47/2013) v R [2013] NZCA 255 at [31].
28 Z (CA447/12) v R [2012] NZCA 559, [2013] NZAR 142 at [25]; DC (CA47/13) v R [2013] NZCA
255 at [35]; Mathieson v Police [2019] NZCA 406 at [8(a)] and [16].
J v R [2021] NZCA 690 at [36]; and Z(CA447/12) v R, above n 28, at [31].
Sok v R [2021] NZCA 252 at [41].
[34] If the answer to (c) is “yes”, the Court may still decline to exercise its discretion to grant a discharge, although that would be rare.31
Discussion
[35] The facts and circumstances here are not such as to demonstrate an error on the Judge’s part in declining the application to grant a discharge without conviction.
[36] A primary aggravating factor is the victim’s vulnerability. The age disparity between Mr Law and the victim forms part of an assessment of the victim’s vulnerability. The greater the age disparity the greater the power imbalance and, therefore, the greater the victim’s vulnerability.32 Mr Nisbet makes the point that, although Mr Law was 26 years of age at the time of the offending, he was still relatively young and, necessarily, had not fully matured. He observed that the victim was only six months away from turning 16 and that Mr Law had been content to wait until the victim turned 16 before engaging in sexual activity. The decision to engage nonetheless was, it was said, mutual.
[37] These are fair points but, at the end of the day, the age gap of 11 years was material and, although the victim would not be in childhood for too much longer, he was nonetheless a child and was vulnerable accordingly.
[38] That emotional harm the victim has suffered is a further aggravating feature. Mr Nisbet makes the point that the victim impact statement was not written by the victim – it demonstrated a reaction from the victim’s mother rather than from the victim himself. However, I do agree with the Judge that, nonetheless, the statement demonstrates the adverse consequences that have been suffered. The victim has needed weekly counselling for the mental health issues that have arisen for him from the offending.
31 Z (CA447/12) v R, above n 28, at [27].
32 See, by way of example, Nevin v R [2023] NZCA 378 at [87]; and Houston v R [2024] NZHC 938 at [38(e)].
[39] The predetermination on Mr Law’s part is a further aggravating factor. There can be no doubt that the act was predetermined. That is reflected in the grooming charge that was accepted by Mr Law.
[40] I see the Judge as having identified fairly the relevant mitigating factors.33 The circumstances, as I have described them in [7]–[9] above, are certainly mitigating.
[41] With these factors in mind, I differ from the Judge only to the extent that on balance I would categorise the overall gravity of the offending as moderate – rather than ‘moderate to serious’ as the Judge did. But, nonetheless, it is not enough to enable me to conclude that the Judge was in error.
[42] Turning to the consequences of conviction, the termination of Mr Law’s employment had considerably more to do with his failure to inform his employer of the offending until just before sentencing than the conviction itself. Having said that, it must be acknowledged that a conviction of this kind will be likely to affect Mr Law’s future employment prospects.
[43] These consequences for Mr Law – the impact on his future employment prospects – could only properly be viewed as the usual consequence of committing a criminal offence.34 They are not out of proportion with the gravity of the offending in this case.35
[44] Nr Nisbet has referred to Police v K36 or R v O,37 cases that resulted in discharges without conviction. Both cases were similar in that they involved a charge of sexual connection with a young person and an exchange of messages and indecent photographs. K involved, in addition, the groping of genitals and buttocks of the victim during one incident. O involved, in addition, the victim performing oral sex on the defendant, sexual touching and brief sexual intercourse. In K a discharge was granted after it was found that a conviction would derail a promising career in aviation
33 Sentencing Decision, above n 1, at [14]–[21].
34 R v Taulapapa [2018] NZCA 414 at [42(a)].
35 At [42(b)], citing Brown v R [2012] NZCA 197 at [31].
36 Police v K [2021] NZDC 8408.
37 R v O [2023] NZDC 16332.
and in O a discharge was granted after it was found that a conviction would jeopardise an elite sporting career, and in fact any career.
[45] But the offenders in those cases were younger. In K, the offender was considerably younger – at the “cusp of being able to claim the jurisdiction of the Youth Court” as the Judge there put it.38 And there was only an age gap of three years between him and the victim. Similarly, in O, there was an age difference of five, rather than 11, years and the offender was 20 years of age at the time of the offending. The consequences of a conviction may be worse for a younger person, particularly if they do not have a “foothold in a career”.39 Moreover, youth can be a mitigating factor that goes to the gravity of an offence.40
[46] The age differences, the level of the sexual activity and the nature of the consequences in this case are such that I do not see either K or O to be sufficiently comparable.
[47] For all of these reasons, the Judge was not, in my view, in error in finding that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence.
Was the sentence manifestly excessive?
[48] The question that follows from this finding is whether the sentence imposed by the Judge was manifestly excessive, such that it should be reduced, as submitted for Mr Law, to a sentence of community supervision.
Sentencing principles and authorities
[49] In sentencing Mr Law, the Judge was required to have regard to the purposes and principles of sentencing in the Sentencing Act 2002. A primary purpose of the sentence in this case is to denounce Mr Law’s conduct and to hold him accountable for the harm caused to the victim. The sentence should be such as to promote in
38 Police v K, above n 36, at [40].
39 Walker v Police [2016] NZHC 1450 at [22].
40 Rolleston v R [2018] NZCA 611, [2019] NZAR 79 at [28]–[35].
Mr Law a sense of responsibility for the harm he has caused and to deter other persons from committing the same or similar offences.
[50] Moreover, the charge of sexual connection with a young person is one of several offences intended by Parliament to protect those who are deemed to be vulnerable – children under the age of 16 years.41
[51] There is no tariff case for sexual connection with a young person. Each case turns upon an assessment of its own facts and circumstances and of the offender’s culpability.42
[52] Mr van der Lem has emphasised the overarching point made by the Court of Appeal in Kennedy v R where it was said, of a case such as this, that “all sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment”.43
[53] However, the Court did go on to say in that case that it is not necessary to adopt an “only in exceptional circumstances” approach to home detention in relation to sexual offending against children.44
[54] The grooming charge must be factored into the equation. As the United Kingdom Court of Appeal observed in Attorney-General’s Reference No. 39 of 2003 (Wheeler), young people who consent to sexual activity with older people frequently become disturbed when they reach an age where they have a full understanding of what they have been involved in and, where contact is made by an older person with a teenager which leads to sexual offences, it needs to be clearly understood that sentences will be at the top end of the range.45
41 Brown v R [2023] NZCA 487; Stoneham v R [2012] NZCA 404 at [26]; Johnson v R [2010] NZCA 168 at [13].
42 Faapuea v R [2010] NZCA 20 at [8].
43 Kennedy v R, above n 5, at [8].
44 At [8].
45 Attorney-General’s Reference No. 39 of 2003 (Wheeler) [2004] 1 Cr App R (S) 79 at [49] as approved by the Court of Appeal in R v Davidson [2008] NZCA 484 at [25] and in Philpot v R [2015] NZCA 212 at [37].
Discussion
[55] The Judge properly determined a starting point for the sentence, he properly incorporated aggravating and mitigating factors for the offending and relating to Mr Law himself46 and he properly applied the totality principle in the sense that the total period of imprisonment must not be wholly out of proportion with the gravity of the offending.47
[56] The aggravating features I have described in [36]–[39] above apply equally here. On the basis of those features, the starting point adopted by the Judge is well supported by the cases to which the Court has been referred.48 Of those cases, I agree with the Judge that King v Police is the most relevant. There, the appellant (aged 21) had consensual sex with the victim (aged 14) on one occasion in a sleep-out at the property where they both stayed, after drinking at a party. On appeal, a starting point of three years was reduced to two and a half years. An end sentence of two years and one month’s imprisonment was imposed.
[57]But King involved a lesser age gap and it did not include a charge of grooming.
[58] The mitigating factors identified by the Judge, and which I have discussed in [7]–[9] above, are relevant here also. I see no error in the Judge’s assessment of those factors. The 65 per cent discount given by the Judge was fair – generous even.
[59] Nonetheless, the case presented by Mr Nisbet raises the issue of whether the sentence should be commuted to community supervision rather than home detention and whether the Judge erred in not doing so.
[60] In considering the point, the approach taken in appeals over whether a sentencing Judge has erred in refusing to commute a sentence of imprisonment to a sentence of home detention is relevant. In R v Palmer, the Court of Appeal observed
46 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
47 Sentencing Act 2002, s 85; R v Barker CA57/01, 30 July 2001 at [10].
48 King v Police HC Timaru CRI-2009-476-24, 15 December 2009, Berry v Police [2014] NZHC 2852, Veltmeyer v Police [2014] NZHC 1419, Fairbrother v R [2013] NZCA 340, Police v K, above n 36 and R v O, above n 37.23
that a decision of this sort calls for a case-by-case exercise of judgment in the context of the principles and purposes of sentencing; principles that can sometimes point in opposing directions.49 Absent an error of principle, it boils down to whether imprisonment – or, here, home detention – was clearly excessive.50 The Court said:51
As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.
[61] The Court of Appeal in R v D (CA253/2008) said that in borderline cases “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight”.52
[62] Mr Nisbet has submitted for Mr Law that in the circumstances the home detention sentence was manifestly excessive. While it was certainly open to the Judge to adopt a community sentence with supervision, I do not see the sentence imposed by the Judge at the end of the day to have been manifestly excessive. Mr van der Lem put it on the basis that, in the circumstances of this case, home detention in itself was a substantial departure from the sentence that would ordinarily be expected for this type of offending. I will not go that far. But suffice to say, it was a sentence that was open to the Judge to impose. There is, as Mr Nisbet has said, a range of cases reflecting the spectrum of potential sentences that were available to the Judge. I am satisfied that the sentence that he settled upon was a sentence that was available to him to impose.
Conclusion
[63]For these reasons I have concluded that:
(a)the Judge did not err in refusing to grant discharge without conviction;
49 Palmer v R [2016] NZCA 541 at [19].
50 At [24].
51 At [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].
52 R v D (CA253/2008), above n 51, at [66].
(b)the refusal to grant a discharge without conviction is not otherwise a miscarriage of justice; and
(c)the sentence imposed by the Judge of six months’ home detention was not manifestly excessive.
[64]Accordingly, the appeals are dismissed.
Radich J
Solicitors/Counsel:
Val Nisbet, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
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