Lindsay v The the King

[2022] NZHC 2786

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000226

[2022] NZHC 2786

BETWEEN

JORDAN SAMUEL LINDSAY

Appellant

AND

THE KING

Respondent

Hearing:

25 October 2022

Appearances:

T D Clee for Appellant (via AVL)

C Anyon-Peters and C S A Fleury for Respondent

Judgment:

27 October 2022

JUDGMENT OF WYLIE J

(Appeal against conviction and sentence)

This judgment was delivered by Justice Wylie On 27 October 2022 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

T D Clee, Auckland

Meredith Connell, Crown Solicitor at Auckland

LINDSAY v R [2022] NZHC 2786 [27 October 2022]

Introduction

[1]    On 29 June 2022, the appellant, Jordan Lindsay, applied for a discharge without conviction in the District Court on the North Shore, having earlier pleaded guilty to one charge of assault on a person in a family relationship. Judge A M Fitzgibbon refused Mr Lindsay’s application. Rather she sentenced Mr Lindsay to 40 hours of community work and directed him to make an emotional harm reparation payment of

$500 to the victim.1

[2]    Mr Lindsay appeals the refusal to grant him a discharge without conviction. He does not challenge the emotional harm reparation payment ordered.

[3]The appeal is opposed by the Crown.

The offending

[4]Mr Lindsay and the victim were in a relationship.

[5]    They had parked at a shopping complex in Whangaparāoa. An argument ensued between them. Mr Lindsay dragged the victim from the vehicle, causing her to strike her head and shoulder on the ground. She suffered a visible bump to the head and bruising to her shoulder area. She did not however seek medical treatment.

[6]    When Mr Lindsay was questioned about the incident by the police, he declined to comment.

District Court decision

[7]    Judge Fitzgibbon noted the guilty plea and recorded that the charge carried a maximum sentence of two years’ imprisonment. She cited the relevant facts and acknowledged that Mr Lindsay had since completed a six-month anger management course, the CADS Getting Started programme, engaged in a restorative justice conference with the victim and met privately with a counsellor. The restorative justice conference had been positive and Mr Lindsay apologised to the victim. Mr Lindsay’s

1      Police v Lindsay [2022] NZDC 12075.

apology was accepted by her. The Judge also recorded that the victim had requested an alteration to Mr Lindsay’s bail conditions so that she could see him and had “strongly requested” that the Court consider a discharge without conviction, as she felt that Mr Lindsay had been punished enough.

[8]    The Judge referred to the relevant statutory provisions contained in ss 106 and 107 of the Sentencing Act 2002. She identified the matters the Court needed to consider and she summarised the respective submissions.

[9]The Judge then:

(a)found that the gravity of Mr Lindsay’s offending was on the low side, taking into account his involvement in rehabilitation. She observed that the violence was relatively limited in the circumstances;

(b)considered the direct and indirect consequences of a conviction. She referred to affidavits filed by Mr Lindsay in which he deposed that there would be an impact on any overseas travel he might undertake because many countries decline to grant visas to those with convictions. The Judge noted that Mr Lindsay had also deposed that the conviction would impact on study he wishes to undertake overseas. She also noted that Mr Lindsay raised employment concerns. The Judge considered that the information before her did not raise anything other than “general consequences”. She noted that there was no information in relation to the specific circumstances asserted by Mr Lindsay and that there was no specific evidence in relation to the study he might wish to undertake overseas; and

(c)concluded that the adverse consequences of a conviction had not been made out and that accordingly it could not be said that they were out of proportion to the gravity of the offending.

Accordingly, she declined the application for a discharge without conviction.

The appeal

[10]   An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence.2 The appeal proceeds by way of rehearing and the appellate Court is required to make its own assessment as to whether or not the criteria for a discharge without conviction have been met.3

Submissions

[11]Mr Clee, for Mr Lindsay, noted that:

(a)his client has a previous diversion for a traffic related matter and that the police had suggested before the Judge that this was a factor weighing against the grant of a discharge. He argued that this submission should have been addressed by the Judge;

(b)section 4 of the Family Violence Act 2018 requires that decision makers consider the views of the victims of family violence and respect those views unless a good reason exists in the particular circumstances for not doing so. Mr Clee accepted that the victim was “not the decision- maker” but nevertheless submitted that the Judge erred in not accepting her view that Mr Lindsay should be discharged without conviction;

(c)the Judge summarised the evidence but incorrectly assessed what he argued were the real and appreciable travel consequences of a conviction being entered against his client;

(d)the Judge summarised Mr Lindsay’s evidence about his study overseas, but erred in the way in which she dealt with it. He argued that the Judge should have given more weight to the evidence.

Finally, Mr Clee argued that the Judge erred in her consideration of the general consequences for Mr Lindsay. He submitted that the Judge effectively concluded that

2      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9]; and Ovtcharenko v Police [2017] NZCA 65 at [5].

3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]–[12].

because the matter involved family violence, the general consequences for Mr Lindsay could not be taken into account. He argued that there were clearly general consequences and that an appropriate balancing test should have been undertaken.

[12]   Ms Anyon-Peters and Ms Fleury, both for the Crown, dealt with each of the points raised by Mr Clee. They argued that:

(a)Mr Lindsay’s prior diversion was irrelevant to the appeal, given the way in which the Judge proceeded;

(b)the victim’s views were not determinative;

(c)the effect of a conviction on Mr Lindsay’s travel prospects was speculative and that no future travel was planned. Ms Fleury observed that where it is argued a conviction will impede travel to a particular jurisdiction, the Courts ordinarily require details and reliable evidence about the effect of a conviction in the jurisdiction concerned. It was noted that no such evidence was adduced in the present case; and

(d)there was no specific evidence in relation to the study that Mr Lindsay said he wished to pursue, and that there was no independent corroborating evidence regarding the likely impact of a conviction on Mr Lindsay’s ability to transfer to another campus.

Beyond this, it was argued that the Judge’s decision has been misconstrued, that the Judge did not suggest that general consequences cannot be taken into account where a case involves family violence and that the Judge did conduct the required balancing test insofar as she was able to do so. It was argued that there was no error of fact or law by the Judge and that, on a fresh assessment, this Court should reach the same conclusion and dismiss the appeal.

Analysis

[13]Relevantly, ss 106 and 107 of the Sentencing Act provide as follows:

106Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

…

107Guidance 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.

[14]   Section 107 provides a gateway through which any discharge without conviction application must pass.4 It requires the Court to assess the gravity of the offence, taking into account all aggravating and mitigating factors of the offending and the offender, identify the direct and indirect consequences of a conviction and then consider whether those consequences are out of all proportion to the gravity of the offence. Even if the proportionality test is met, it remains open to the Court to decline to exercise the discretion conferred on it under s 106 to grant a discharge, although this will be rare.5

[15]   Here, and notwithstanding Mr Clee’s submissions to the contrary, I am satisfied that the Judge did consider each of the required steps.

[16]   First, the Judge found that the gravity of the offending was on the low side, taking into account the various rehabilitative steps Mr Lindsay had taken. The Crown did not take issue with this assessment. Nor, for obvious reasons, did Mr Lindsay. It seems to me that the Judge’s view as to the gravity of the offending was clearly correct. There is nothing to suggest that the assault was premeditated and the injuries suffered by the victim were minor. Having said that, the assault was unprovoked and the victim did suffer some injury to the head. It cannot be disputed that Mr Lindsay has made significant rehabilitative efforts and that is to his credit.

4      R v Hughes, above n 3, at [8]; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13]; and see

Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].

5      R v Hughes, above n 3; and Blythe v R, above n 4, at [13].

[17]   Secondly, the Judge went on to consider the consequences of a conviction. Section 107 imports no onus of proof however. Rather, the Court must assess all relevant materials before it and decide whether the proportionality test is made out.6 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 that there is a real and appreciable risk of such consequences.7 While there is no positive onus on an offender who seeks a discharge to establish that the test is met, in the normal course of events, the offender is expected to put information before the Court that provides a basis from which the Court can be satisfied that the threshold is met.8

[18]   In this case, the Judge had before her two affidavits from Mr Lindsay and an affidavit from Mr Lindsay’s father.

(a)Mr Lindsay explained that he has a dream to travel the world and produce music. He has attended the School of Audio Engineering, which he said has 50 campuses around the world. He explained that he is working towards a Bachelor of Music Production degree. He went on to consider the impacts of a conviction on his career. He said that he was worried about the “general impacts [of a conviction] on travel and study”. He said that he was worried the world has “closed up with Covid and countries will be more strict with visas”. He said “having a conviction like this on my record may impact on my ability to study at other campuses or work in other countries”. He also said that he was worried about employment in what is a competitive industry. He expressed concern that a conviction might be considered by an employer as suggesting that he poses a risk to others.

(b)In an updating affidavit, Mr Lindsay explained that a major draw card of the programme he is involved in is that he can transfer and study at other campuses around the world. He said that his primary concern if

6      R v Hughes, above n 3, at [42]–[53].

7      DC (CA47/2013) v R [2013] NZCA 255 at [43]; Waine v R [2017] NZCA 287 at [29]; and R v

Taulapapa [2018] NZCA 414 at [22].

8      See Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) [Adams on Criminal Law] at [SA107.06].

a conviction were entered against him was the impact that it might have on his ability to transfer and study overseas. He did however acknowledge that he could not state exactly where he would go, but that there were many options available. He said that his primary goal would be to travel to California and that the United States does not look favourably on those with convictions.

(c)The affidavit from Mr Lindsay’s father supported his son but did not advance matters.

[19]No additional evidence has been filed in support of the appeal.

[20]   The Judge accurately summarised the evidence. She noted that when the matter had been before the Court earlier, she had made it clear that she wanted “some details and information about what the real and appreciable risk of consequences would be”. She expressed the view that the information put in front of her did not raise anything other than “general consequences”. She also commented that there was no information before her in relation to travel risks and no specific evidence in relation to how a conviction might impact on Mr Lindsay’s study prospects.

[21]I agree with this analysis.

[22]   Here, there are two main consequences relied on by Mr Lindsay – first, effects of a conviction on his employment prospects and secondly, effects of a conviction on his travel aspirations. He has been relatively vague in relation to both, but I accept that it will not always be possible for the consequences of a conviction to be set out in any great detail, particularly by a young person who is uncertain about his or her future plans.

[23]   As for the effect of a conviction on Mr Lindsay’s employment prospects, I refer to the decision of the Court of Appeal in Re Taulapapa.9 The Court there acknowledged that a conviction carries a social stigma and that it can affect the person’s career but also observed that this consequence must normally yield to an

9      R v Taulapapa, above n 9.

employer’s right to know.10 This principle applies to all offenders for whom convictions are recorded, including young offenders. The Courts should be hesitant to usurp the role of an employer or training body to decide the significance of a particular conviction. It is not the function of the Courts to pre-empt decisions by employers about the suitability of prospective employees.11 Here, for understandable reasons, there is very little information available about Mr Lindsay’s employment prospects. There is nothing to suggest that a conviction could or would lead to immediate rejection without further enquiry and, in my view, the vague assertions made by Mr Lindsay must yield to any prospective employer’s right to know and decide for him or herself whether or not Mr Lindsay is a suitable employee.

[24]   Turning to Mr Lindsay’s travel aspirations, again, Mr Lindsay’s assertions are vague. Where a discharge is sought on the basis that a conviction will impede travel to a particular jurisdiction, the Courts ordinarily require detailed and reliable evidence about the law and practice in the jurisdiction concerned;12 for example, a Court will usually require evidence as to whether or not a conviction has to be disclosed to immigration authorities in the destination country, whether the offender would be prima facie able to gain entry to the country for a particular period and whether there are alternative  entry  processes  available.  No  such  evidence  was  provided  by  Mr Lindsay. The Courts will not generally assume that immigration authorities will behave unfairly or irrationally.13 Where the immigration authorities are likely to consider the circumstances said to justify a discharge, including the gravity of the offending and the offender’s personal circumstances, the outcome will usually be regarded as a consequence of the offending, rather than a conviction. The immigration authorities should therefore be left to resolve the matter.14 Here, in the absence of any reliable evidence, there is no reason to assume that the immigration authorities in

10     At [42(a)].

11     See C (CA210/2020) v R [2020] NZCA 443 at [26]; Graham v Police [2018] NZCA 172 at [29];

Police v Roberts [1991] 1 NZLR 205 (CA); and Adams on Criminal Law, above n 8, at [SA107.03].

12     Edwards v R [2015] NZCA 583 at [26]; Brunton v Police [2012] NZHC 1197 at [16]; and Han v Police [2012] NZHC 791.

13     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [24].

14     See R v Foox [2000] 1 NZLR 641 (CA); A (CA747/2010) v R [2011] NZCA 328 at [30]; Zhu v R

[2021] NZCA 254; and see Adams on Criminal Law, above n 8, at [SA107.04].

whichever country it is Mr Lindsay decides he wishes to visit will pre-determine the issue and decline Mr Lindsay a visa, simply because of a conviction.

[25]   As a result, in my judgment, the Judge was correct to find that no adverse consequences of a conviction had been made out and that therefore it could not be said that the consequences of a conviction were out of proportion to the gravity of the offending. The Judge did not err in her consideration of Mr Lindsay’s application for a discharge without conviction.

[26]   For the sake of completeness, I acknowledge the point made by Mr Clee that s 4 of the Family Violence Act requires that decision makers consider the views of the victims of family violence and respect those views unless a good reason exists in the particular circumstances for not doing so. The  victim  is  not  of  course  the  decision maker and here good reason does exist for not accepting the victim’s views. Mr Lindsay does not satisfy the statutory criteria for a discharge without conviction.

[27]The appeal is dismissed.

Wylie J