Linton v Police
[2017] NZHC 2241
•15 September 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CRI-2017-485-35 [2017] NZHC 2241
DAVID STEWART LINTON
v
NEW ZEALAND POLICE
Hearing: 5 September 2017 Appearances:
B Crowley for Appellant
R De Silva for RespondentJudgment:
15 September 2017
JUDGMENT OF CLARK J
Introduction
[1] In the District Court Mr Linton faced two charges:
(a) fighting in a public place;1 and
(b) possessing an offensive weapon.2
1 Summary Offences Act 1981, s 7. Maximum penalty: $1,000 fine.
2 Crimes Act 1961, s 202A(4)(a). Maximum penalty: three years’ imprisonment.
LINTON v NEW ZEALAND POLICE [2017] NZHC 2241 [15 September 2017]
[2] Mr Linton was discharged without conviction on the second charge but not the first.3 He appeals the refusal to discharge him without conviction on the charge of fighting in a public place.
Facts
[3] The offending occurred on the night of 1 July 2016. Mr Linton was moderately intoxicated. He became involved in a street fight in central Wellington. He was later arrested and found to be in possession of a knuckleduster which was in his bag.
[4] Mr Linton’s evidence was that he was with a friend who became involved in a fight with several other young men. Mr Linton came to his aid. He said he did not start the fight and did not want to be in it.
[5] Mr Linton’s explanation for being in possession of the knuckleduster was that he had been given it by a friend several weeks earlier. He had forgotten it was in his bag when he took his bag to work. He said he never intended to use it, and made the point that if he had intended to use it he would have made use of it in the fight.
District Court decision
[6] Having observed the fighting charge was not serious in itself and that the charge of possessing an offensive weapon was more serious, the District Court Judge discharged Mr Linton without conviction on the offensive weapon charge and convicted him on the charge of fighting in a public place. The Judge noted the following mitigating factors:
(a) Mr Linton did not intend to use the knuckleduster;
(b)most of Mr Linton’s previous convictions were for offending between the ages of 18 and 21 and the most recent conviction was five years ago;
(c) Mr Linton had “done very well” to put his offending behind him; he
had two children; was a carpenter, had just finished a subcontract working as a foreman on a site in Tokoroa and was about to start a course in project management the goal being future management roles in the construction industry;
(d)Mr Linton’s rehabilitation and “excellent job” mitigated his offending which the Judge assessed as falling at the lower end of seriousness.
[7] The Judge addressed Mr Linton’s close eligibility under the Criminal Records (Clean Slate) Act 2004. The Judge did not see any adverse consequences would arise for Mr Linton if he were convicted on the fighting charge. A conviction would not “hold [him] back”.4 It was a minor charge and would be seen as such whereas possession of an offensive weapon would be perceived more seriously and the consequences of a conviction for the offensive weapon charge would be out of proportion to the seriousness of the overall offending.
[8] Accordingly, the Judge discharged Mr Linton without conviction for possession of an offensive weapon and convicted him on charge of fighting in a public place. Mr Linton was fined $300 plus $130 costs.
The appeal
Appellant
[9] Mr Linton appeals his conviction on three principal bases:
(a) The Judge fell into error by proceeding on the basis a future employer would only consider the fighting conviction when the effect of that conviction means all previous convictions are disclosed to potential employers for another seven years.
(b)In assessing Mr Linton’s history as not holding him back in his career to date the Judge overlooked the evidence that Mr Linton’s aim has been to qualify for supervisory roles and his convictions disqualified
him from those positions.
(c) The Judge erred in his application of the gravity assessment required by s 107 of the Sentencing Act 2002. Mr Crowley submitted that if the consequences outweigh the gravity in respect of possessing a serious weapon they must outweigh the gravity of the fighting offence which is “a vastly less serious offence”.
Respondent
[10] The respondent’s position is that in assessing the consequences of the conviction it was open to the Judge to find there were no consequences in respect of a conviction for fighting in a public place. Therefore, a discharge without conviction could not be granted pursuant to s 106 of the Sentencing Act.
[11] Ms De Silva submitted in response to the appellant’s primary grounds of appeal:
(a) Mr Linton’s current convictions are for relatively minor offending. The charge of fighting in a public place would be perceived as one of the less serious convictions. Mr Linton’s last conviction was in March
2013 so he would be eligible for a clean slate in 2020. The Judge considered the effect of a conviction on eligibility under the Clean Slate Act, but noted Mr Linton was in the position of having to disclose his current convictions for a few more years. Having to disclose another conviction of the same or less seriousness to his existing convictions would not carry any additional consequences.
(b) There was no consequence of a conviction for fighting in a public place.
Mr Linton’s existing record had not affected his employment thus far and there was no evidence before the Court of the adverse effect of Mr Linton’s convictions on his ability to advance into managerial roles. Mr Linton had completed a short term management position in Tokoroa despite his current convictions and in the absence of evidence showing a real and appreciable risk that the conviction will adversely affect his
career development, the consequences of a conviction “are simply ordinary consequences of a conviction carrying potential adverse impact on employment prospects”.
(c) The Judge did not err in his proportionality assessment under s 107.
The Judge declined the s 106 application because he was unable to identify any consequences outweighing the gravity of a conviction on the relatively unimportant fighting charge. Given his finding that there were no consequences, the Judge did not therefore have to assess whether the consequences outweighed the gravity of the offending.
The law
[12] If an offender is found guilty or pleads guilty to an offence the court may nevertheless discharge the offender without conviction.5 The discretion to discharge without conviction is to be exercised in accordance with s 107 of the Sentencing Act. Section 107 states:
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.
[13] The inquiry which s 107 requires the court to undertake is two-staged:6
(a) First it is necessary to consider the gravity of the offence. When considering the gravity of the offence, all aggravating and mitigating factors relating to the offending and the offender come into play.7
Having assessed the gravity of the offence the court must identify the consequences of a conviction and assess whether those consequences are “out of all proportion” to the gravity of the offence.
(b)At the second stage the court exercises its discretion whether or not to discharge without conviction. If jurisdiction is established it will be
5 Sentencing Act 2002, s 106.
6 DC (CA47/13) v R [2013] NZCA 255 at [31].
7 At [31], [34] and [35].
rare that an offender is not discharged under s 106.8
[14] With these principles in mind I turn to consider the appeal. Applying the disproportionality test is a matter of fact requiring judicial assessment. Such decisions are subject to ordinary appellate principles. That is, the appellate court must come to its own view of the merits.9
Assessment
[15] Neither the Judge nor the respondent identified any aggravating features relating to the offending or the offender.
[16] On a conventional analysis the fighting charge might be regarded as aggravated by the more serious charge of possession of an offensive weapon in a public place. But the Judge accepted Mr Linton’s explanation for having the knuckleduster: it was given to him by a friend who returned from Bali with a number of these items. More particularly, the Judge noted Mr Linton did not intend to use the knuckleduster.
[17] I have set out the Judge’s discussion of the mitigating factors at [7](a)–(d) above. I agree that the factors which the Judge identified are to be regarded as mitigating the offence. The charge of fighting in a public place was a charge under the Summary Offences Act 1981 and carries a maximum penalty of only $1,000. It is not serious in itself. Mr Linton has a good job as a carpenter, has prospects which he is actively pursuing and his offending seems well and truly behind him. The last offending occurred in 2012. I note that conviction was for failing to stop when followed by red/blue flashing lights.
[18] The impact of offending on victims is also to be considered when identifying aggravating and mitigating factors. Mr Linton’s victim, who I shall refer to as “F”, requested that his views be made available to the court. F said as far as he was concerned the episode was a “rumble in the street”. He said he was tipsy and said at
the time to the Police that he did not want to take it further. He stated he was “shocked
8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [12]; R v Blythe [2011] NZCA 190, 2011 2
NZLR 620 at [13].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 198, [2008] 2 NZLR 141.
to hear that this guy had been charged and [he doesn’t] support this matter going any further”.
[19] Prior to his most recent conviction Mr Linton was within three years of eligibility of having a “clean slate”. The effect of s 7 of the Clean Slate Act is that, with this latest conviction, the clock starts again. Mr Linton will have to disclose all his convictions for four years longer. This serious consequence was not identified by the Judge.
[20] The Judge’s proportionality analysis was influenced by his perception that
Mr Linton had not been disadvantaged by his convictions in the past so there was no reason they would hold him back in the future.10 Key to the Judge’s reasoning was the benign view third parties would likely take of the offending. Accordingly the Judge could not see any adverse consequences arising from the charge.
[21] Assessing the gravity of the offending as “very minor” has significance for the evaluation of the consequences of a conviction. If the gravity is very low, the consequences will not have to be particularly serious before they outweigh the gravity of the offence.
[22] In this evaluation a legal standard of proof is not required.11
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
[23] Mr Linton emphasised in his evidence that most of his previous convictions were for offending between the age of 18 and 21. He had “moved on” and was looking forward to having his slate cleared. He did not think of himself as being the same person who committed those historical offences. The project management course Mr Linton was starting at the Open Polytechnic in July 2017 would mean he could pursue his goal of applying for management roles in the construction industry but he believed
his conviction would “significantly hold [him] back from getting any of those roles”.
10 Police v Linton, above n 3, at [17].
11 DC (CA47/13) v R, above n 6, at [43].
[24] Mr Linton described himself as a loving father but his partner had recently indicated she wanted to leave New Zealand with their two young children. Mr Linton wants to continue to play an active role in the children’s lives and is very concerned that a recent conviction may impact on his ability to contest his partner’s intention to leave New Zealand with the children.
[25] The respondent does not submit that there are no consequences for Mr Linton’s employment. Rather, the respondent submits that the consequences are no more than the ordinary consequences of a conviction which may impact adversely on employment prospects. I think it is undoubtedly correct to view convictions as having the potential to imperil employment prospects.
[26] At the least a stigma attaches to most convictions. The Judge recognised the consequences for Mr Linton when he decided to discharge and convict him in respect of the more serious offensive weapon charge. The outcome of the analysis should be consistent at least when applied to the same offender. If the consequences of a conviction were assessed as outweighing the gravity of an offence which is more serious than the offence for which the person is convicted, it stands to reason that the same consequences must also outweigh the gravity of a much less serious offence.
[27] Mr Linton’s latest conviction means he is not eligible to have his slate cleared until 2024. Mr Linton is now 28. His convictions are for youthful and not particularly serious offending. I accept there is a real and appreciable risk of a recent conviction imperilling Mr Linton’s prospects for supervisory and managerial roles in the industry in the construction industry. My assessment is that such a consequence is out of all proportion to the gravity of the offence which the District Court Judge himself characterised as “very minor”.
Result
[28] For these reasons the appeal is allowed.
Karen Clark J
Solicitors:
B Crowley, Wellington
Luke Cunningham & Clere, Wellington