M v New Zealand Police

[2010] NZHC 120

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-82

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 February 2010

Appearances: J Miller for the appellant

M Snape for the respondent

Judgment:      18 February 2010

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 15 May 2009 the appellant, Ms M  , pleaded guilty in the District Court to a charge of assault and was sentenced to six months’ supervision.   Ms M   now appeals against conviction and sentence on the basis that she should have been discharged without conviction.

Facts

[2]      On 11 March 2009 Ms M   was at her partner’s home in Miramar.  Both she and her partner were intoxicated.   Ms M   came into the room where her

M V POLICE HC WN CRI-2009-485-82  18 February 2010

partner was, grabbed him by the neck and dug her fingernails into his skin.   Her partner suffered visible scratch marks.  Ms M   apparently stated that she wanted to kill her partner.  At the time, although her partner called the Police, he said that he did not want Ms M   arrested, rather he wanted her to be given help for mental health problems she was suffering from.

This appeal

[3]      This is a general appeal under s 115 of the Summary Proceedings Act 1957 and is by way of rehearing.  The powers of the Court are as set out in s 121, and include the power to confirm or set aside the sentence, and/or to confirm or set aside or amend the conviction that is appealed against.

[4]      As confirmed by the Court of Appeal in R v Hughes,1  the decision as to whether the disproportionality test under s 107 has been met is not a matter of discretion but a matter of fact requiring judicial assessment, subject to appeal on normal appellate principles.

[5]      Accordingly,  I must  proceed  as  outlined  in  Austin,  Nichols  & Co  Inc  v

Stichting Lodestar.2

New evidence

[6]      On appeal, I was provided with a report by Dr Justin Barry-Walsh, addressed

– at the request of Mr Miller – to Ms M  ’s “mental health history and diagnosis, her state of mind at the time of the offending and the effect of a conviction on her ongoing mental health”.

[7]      For the respondent, Mr Snape did not object to this Court receiving and considering that report.

1      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

2      Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [16].

[8]      In arguing that the consequences for Ms M   of a conviction would in this instance  be  out  of  all  proportion  to  the  gravity  of  her  offending,  Mr  Miller principally relies on the views expressed by Dr Barry-Walsh in that report.

Discussion

[9]      Where  an  offender  pleads  guilty  or  is  found  guilty,  s  11(1)(a)  of  the Sentencing Act requires the Court to consider whether the offender might be more appropriately dealt with by way of a discharge without conviction under s 106.  It is to be noted here that the issue of a possible discharge without conviction would not appear to have been raised in the District Court by defence counsel.  It is perhaps, therefore, not surprising that the issue was not mentioned by the Judge in his sentencing notes.   It was a very simple sentencing hearing.   If the Judge did not consider the question of a possible discharge without conviction, that itself would be a basis for reviewing the lawfulness of the decision.  At the same time, and in terms of the appropriate approach on appeal as outlined above, this Court can in any event consider afresh the question of a discharge without conviction.

[10]    Section 106 provides that the Court may discharge an offender without conviction unless the Court is required to impose a minimum sentence.  Section 107 provides that 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.  This requirement is mandatory.  It

was summarised by the Court of Appeal in R v Hughes3:

Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s

106 to deal with the offender.

[11]     Because  Mr  Miller’s  submissions  on  appeal  focus  on  the  effect  of  Ms

M  ’s  mental  condition,  it  is  helpful,  at  the  outset,  to  consider  the  possible

3 At [41].

relevance of a defendant’s mental health in an application for discharge without conviction.

[12]     In the context of sentencing, the Court of Appeal in R v Nilsson clearly acknowledged that the mental health of an offender may be an important consideration: 4

… A mental disorder falling short of exculpating insanity may nevertheless be  capable  of  mitigating  a  sentence  either  because  it  moderates  the culpability  or  because  it  renders  less  appropriate  or  more  subjectively punitive a sentence of imprisonment, or for a combination of those reasons.

[13]     A similar observation was made in R v Tuia where it was said that: 5

The "lesser degree of moral culpability" follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend. The less the moral capacity for constraint the lower the moral culpability in terms of the spectrum ending with the verdict of not guilty on the grounds of insanity.

[14]     By analogy with these established sentencing principles, Ms M  ’s mental health is relevant in the assessment both of the gravity of her offending and of the consequences for her of conviction.

[15]     As to Ms M  ’s mental health, Dr Barry-Walsh concluded that she had a history of mood instability, anxiety, significant past problems with alcohol abuse and a pattern of suicidal crises and self-harm in the context of significant psycho-social stresses.  It was his opinion that she had been intermittently depressed, often anxious and had personality disorders meaning she coped poorly with stresses and, particularly within the context of alcohol intoxication, was prone to impulsive acts, self-harm and other angry actions.

[16]     As to her mental state at the time of her offending, she would appear to have been angry, suicidal and intoxicated with alcohol.   Dr Barry-Walsh also recorded Ms M   reporting that she had taken three months’ worth of her anti-depressant medication.    Dr  Barry-Walsh  considers  her  response  to  have  been  a  typical,

4      R v Nilsson CA552/99, 27 July 2000 at [10].

5      R v Tuia CA312/02, 27 November 2002 at [15].

impulsive and disorganised one, contributed to by possible depression and likely feelings of stress and anxiety.

[17]     In terms of the effect of a conviction on her ongoing mental health, the doctor observed:

Ms M   already feels despondent at the prospect of engaging in employment  and  lifestyle  activities  that  are  at  odds  with  her  outdoor mentality.   Further she has to cope with chronic pain from her injury in

2007.    From  my  understanding  a  conviction  would  further  imperil  her capacity to gain employment.  Thus it would have a further negative effect

on  her  potential  for  rehabilitation  and  would  be  likely  to  worsen  her

problems with low mood and self harm.

[18]     The references to Ms M  ’s “outdoor mentality”, and to her injury in 2007, refer to Ms M  ’s leisure occupation of horse riding, a significant horse riding injury in March 2007 (a fracture to her back) and the effect that accident had on her, in that it had forced her to give up her job as an upholstery manufacturer.

Gravity of the offence

[19]     Although violence in a domestic situation is never to be taken lightly, in my judgement this was not offending of any particular significance or gravity.  As Mr Snape acknowledged, the gravity is at the low end of the scale and would appear to have involved Ms M   grabbing her partner’s neck in a way that left scratch marks.  The gravity of the offending is further influenced, in terms of Ms M  ’s culpability,  by the  mental  difficulties  she  was  suffering  from,  as  referred  to  in Dr Barry-Walsh’s  report.    In  my judgement,  and  for  offending of  this  sort,  Ms M  ’s offending is at the very low end of the scale.

[20]     As regards the gravity of her offending, I note further that her partner, as complainant, provided his views to the Court.  He said that his calling of the Police was more to obtain help for Ms M   than anything else.

Consequences of conviction

[21]     That Ms M  ’s offending is at the very low end of the scale is the reference point for assessing the direct and indirect consequences of her conviction.

[22]     Mr Miller pointed to two matters.  First he made the not unusual submission that  having  to  disclose  a  conviction  for  a  Crimes  Act  assault  to  prospective employers would have a negative impact on the appellant’s future job prospects.  He did not particularise that submission in any way.

[23]     Mr Miller also pointed to the consequences of a conviction on Ms M  ’s mental health.  He pointed to Dr Barry-Walsh’s report, and namely the conclusion, referred to above, that Ms M   was in any event worried about her employment prospects because of her injury and its consequence.  He pointed out also that with her  particular  anxiety  condition  the  implications  of  the   conviction  for  her employment would be likely to worsen her problems with low mood and self-harm. Mr Miller submitted that that seemed “an excessive punishment for what is really a very minor assault”.

[24]     As regards the consequences of conviction, Mr Snape noted that there was no particularisation of any effect on the appellant’s future employment prospects.  He went on to submit that, if little weight was placed on employment prospects, then the same followed as regards mental health consequences.   That was, he submitted, because Dr Barry-Walsh linked the two in his report.

[25]     I am not necessarily persuaded by that logic.  The assessment I have to make is of this particular person in her particular circumstances.  If, because of her mental health, what would for someone else only be a very generic and non-particularised effect on employment prospects, for her can adversely affect her mental health, then I  think  that  adverse  effect  on  her  mental  health  is  an  additional  factor  to  be considered.

[26]     By my reading of Dr Barry-Walsh’s report, Ms M   is a person with fragile mental health.  Dr Barry-Walsh identifies depression, anxiety and a pattern of

suicidal crises.   Ms M  ’s longstanding mental health problems have been compounded  by  her  accident,  and  the  impact  that  has  had  on  her  recreational activities and employment prospects.  In my view, and given my assessment of the gravity of  her  offending,  the  additional  burden  of  a  conviction  for  Crimes  Act assault, and the inevitable significance of that not only in the employment, but also other contexts, is for Ms M   a consequence out of all proportion to the gravity of this offence.

[27]     This  appeal  is  therefore  allowed.     I  note  further  that,  by  dint  of  the supervision conditions imposed on her, my understanding is that she will now have received that help.   It may not have been possible for the Court to impose such conditions if she had been discharged without conviction originally.  The benefit of her conviction has, in many ways, been obtained.  In my view that is a further reason that I am now able to conclude that a discharge without conviction is the appropriate sentence in these very particular circumstances.

“Clifford J”

Solicitors:   John Miller Law, P O Box 6314, Wellington for the appellant ([email protected]) Crown Solicitor, Wellington for the respondent ([email protected])