M v The Queen

[2020] NZHC 3003

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000129

[2020] NZHC 3003

BETWEEN

M

Appellant

AND

THE QUEEN

Respondent

Hearing:

5 November 2020

Appearances:

C Nolan for Appellant

S Bicknell-Young for the Crown

Judgment:

12 November 2020

JUDGMENT OF DOOGUE J

Introduction

[1]    The   appellant,   Mr M,   was    sentenced    by   Judge Brian Callaghan    on 2 September 2020 to nine months’ supervision on one charge of assaulting a person in a family relationship.1

1      Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.

M v R [2020] NZHC 3003 [12 November 2020]

[2]The Judge declined to grant Mr M a discharge without conviction.2

[3]    The appeal against conviction is advanced on the basis that the Judge made a material error when he referred to an integrated safety report (ISR) when declining the discharge, and that the grounds for a discharge without conviction were made out and such a sentence was the least restrictive outcome and ought to have been granted.

[4]The Crown says the Judge did not err, and the appeal should be dismissed.

The background facts

[5]    The victim and Mr M had been married for about 10 years at the time of the offending. On the night of 13 July 2019 they had been out drinking together. They returned home at 2.00 am on 14 July and began to argue. Mr M struck a cigarette out of the victim’s mouth, with a backhand slap. He then struck her for a second time, with the back of his hand to her face. The victim tried to move away to pick up the cigarette, but Mr M grabbed her by the hair and forced her head down onto the bed. The two wrestled around, resulting in the victim striking the wall and exposed beams. The couple’s 16-year-old son was disturbed by the noise. He opened their bedroom door to see Mr M holding the victim up against the wall with his left hand, with his right hand raised as though he were about to strike her. The son called the police.

[6]The victim suffered a swollen lip and sore head as a result of the assault.

District Court decision

[7]    The Judge began by considering the gravity of the offending. He noted that the victim suffers from hypercholesterolemia, and that it appeared the argument began because Mr M was concerned about the effect of the victim’s smoking on her health. The Judge appeared to accept counsel for the Crown’s submission that the aggravating factors of the offending were the harm caused to the victim, the fact that the family violence was witnessed by a child, vulnerability of the victim, breach of trust, and the violence occurring in the home.

2      R v M [2020] NZDC 18052.

[8]    In mitigation, the Judge recognised that Mr M was concerned about the victim’s health, and had already suffered consequences because his marriage ended as a result of the offending. The Judge considered the offending was moderately serious.

[9]    The Judge said the primary consequence of conviction was the possibility that Mr M would lose his employment as a union organiser. The Judge noted Mr M had not yet told his employer about the charge, and there was no evidence as to whether the employer held a particular view about convictions. He was therefore not satisfied there was sufficient evidence of a real and appreciable risk that Mr M would lose his employment. It was also significant that Mr M’s place of employment often assists organisations that support victims of family violence. The Judge noted that this may make it more likely Mr M would lose his employment, given the nature of the charge, but ultimately referred to authority that such a risk would normally yield to the employer’s right to know.

[10]   Counsel for Mr M also suggested a conviction may impede his further travel, particularly in relation to his employment. No specific information was put before the Judge as to that, but he accepted some jurisdictions prohibit travel due to criminal convictions.

[11]   The Judge also accepted that a conviction may cause tension in the family dynamic, particularly with the care of children, and that there is social stigma associated with such offending. Nevertheless, he was firmly of the view that none of the consequences identified by Mr M were out of all proportion to the gravity of the offending such that a discharge without conviction should be granted.

Principles on appeal

[12]   The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion of the gravity of the offending.

[13]   Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate court making its own assessment of whether the criteria are established.3

Appellant’s submissions

[14]   Mr Nolan, counsel for Mr M, submitted that it was clear that the ISR was still on the Court file and affected the Judge’s decision. He submitted the ISR coloured the Judge’s view in relation to the discharge application and sentencing.

[15]   Mr Nolan contended that the offending was out of character, given Mr M has no previous convictions for domestic violence and the convictions he does have are of some antiquity. He submitted that Mr M was engaged with Aviva (an organisation that provides services to persons who have been violent), where he sought to complete a programme for domestic violence, but was told there was not much that the service could offer him.

[16]   In regard to the consequences of conviction, Mr Nolan submitted that there is a real and appreciable risk that a recent conviction might cause Mr M to lose his job, and could be an impediment to travel with his employment. Mr Nolan concluded that the consequences of conviction in relation to his employment would be out of all proportion to the offending.

Respondent’s submissions

[17]   Ms Bicknell, for the Crown, acknowledged that the ISR appears to have remained on the file and that the Judge referred to it when imposing sentence. However, she submitted that this did not lead to a material error. She said the Judge noted it was not appropriate to consider the ISR in deciding the application for discharge, and instead appears to have considered it when imposing supervision with the special condition to “attend an assessment for and thereafter attend any assessment, programme or counselling for violence intervention”.

3      H v R [2012] NZCA 198 at [35]-[36].

[18]   Even if the Court finds that the reference to the ISR was a  material  error,  Ms Bicknell submitted the grounds for a discharge without conviction are not made out.

[19]   Ms Bicknell submitted in all the circumstances, the offending should be categorised as moderately serious. She submitted, with reference to the aggravating features of the offending and the High Court decision in Wind v Police, that the offending could have attracted a starting point of 12 months’ imprisonment.4

[20]   Ms Bicknell disputed Mr Nolan’s submission about Mr M’s engagement with Aviva. She submitted an email from the Aviva co-ordinator records that at his meeting, Mr M said he “would like to end the sessions today because [he] know[s] [he is] not a violent person and that incident was the only time he had ever committed family harm.” Ms Bicknell contended any credit for engagement with Aviva is therefore inappropriate.

[21]   Turning to the consequences of conviction, Ms Bicknell submitted that there is insufficient information before the Court to show a real and appreciable risk that conviction would result in Mr M losing his employment. In addition, she said it is not the function of the Courts to usurp or pre-empt decisions by employers about the suitability of employees.5 Ms Bicknell submitted this is particularly so given Mr M works with organisations including the Battered Women’s Trust and Women’s Refuge.

[22]   Ms Bicknell accepted that convictions can be a barrier to travel in certain circumstances. However, she noted Mr M already has previous convictions and has no immediate travel plans, nor has he provided evidence of how a conviction could impede travel to a particular jurisdiction.

[23]   Ms Bicknell submitted that stigma is an ordinary consequence of criminal offending, and it is unlikely a conviction would negatively impact his children’s views of him, more than having witnessed the violence in the first place.

4      Wind v Police [2019] NZHC 1819.

5      Graham v Police [2018] NZCA 172 at [29]; Maraj v Police [2016] NZCA 279 at [36]; Kahu v R

[2018] NZHC 2521; Police v Roberts [1991] 1 NZLR 205 (CA).

[24]   In conclusion, Ms Bicknell contended Mr M has not established a real and appreciable risk of the named consequences occurring and even if he has, those consequences are generic. She submitted there is nothing to indicate that the consequences of conviction would be wholly disproportionate to the offending.

Was there a material error because the Judge referred to the ISR?

[25]   On 5 August 2020, Judge Stephen O’Driscoll ruled that the ISR should not have been filed by the Crown in opposition to the application for discharge without conviction. He ruled that the ISR be struck from the record, and asked that the Crown provide updated submissions which did not refer to the ISR.

[26]   Despite the Judge’s ruling, it appears the ISR was still on the record when the matter came before the Judge at sentencing. In particular, I note the following paragraph of the decision:

[14] In support of sentencing, but in particular, the discharge application,  the following points are made in the submissions: No previous violence. I should mention now there is some suggestion in the family violence report attached to the Crown’s submissions that the victim has mentioned other occasions where there have been either threats, or acts of some violent conduct, but it is not appropriate to take those into account in respect of this application, but they may be relevant, and I think they are, to the wider issue of whether or not the defendant is convicted and a sentence of supervision, which seems to be accepted, is imposed.

[27]   The second part of this paragraph suggests the Judge did find the ISR relevant to whether Mr M should be discharged without conviction, despite having stated otherwise in the first part of the passage. However, the Judge said he considered supervision would be appropriate for Mr M “as a first-time family violence offender”, which suggests he did not place any weight on the allegations in the ISR.

[28]   I need not attempt to reconcile the Judge’s remarks in any event, as I must consider the application afresh.

Is the test for a discharge without conviction met, when considered afresh?

[29]   Section 106 of the Sentencing Act states the Court may discharge an offender without conviction:

106     Discharge 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.

(2)A discharge under this section is deemed to be an acquittal.

…

[30]   Section 107 sets out the threshold test that must be met before the discretion in s 106 can be exercised:

107     Guidance 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.

[31]   The Court of Appeal in R v Hughes affirmed that consideration of a discharge under s 106 involves a three-step process:6

The court must consider, first, the gravity of the offending; secondly, the consequences of conviction; finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.

[32]In Z v R, the Court of Appeal clarified that:7

… when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).⁸

[33]   In Hughes, the Court of Appeal confirmed there is no onus of proof on the defendant to establish that the test of disproportionality has been met.9

6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].

7      Z v R [2012] NZCA 599 at [27] (footnotes omitted).

8      Blythe v R [2011] 2 NZLR 620 (CA) at [13].

9      R v Hughes, above n 6, at [42] and [49].

Gravity of the offending

Aggravating and mitigating features of the offending

[34]   Mr Nolan did not challenge the Judge’s classification of the offending as moderately serious. I consider this classification correct, in light of the aggravating factors of the offending.

[35]   The first of aggravating feature of the offending is the harm caused to the victim. She sustained a swollen lip and a sore head. Her marriage ended as a result  of the offending.

[36]   The second is that the assault was witnessed by the couple’s son. He heard the assault and came to see what was occurring. He saw his father holding a fist to his mother. He was so concerned about the imminent danger that he called the police.

[37]   The third aggravating feature was the nature of the attacks that occurred that night. Mr M became angry with the victim, and he pushed, shoved, and slapped her several times, and forced her up against the wooden beams in their house.

[38]   The fourth aggravating feature of the offending was the physical vulnerability of the victim. The victim suffers from a genetic disease called hypercholesterolemia and heart disease. She has three  stents  in  her  heart  and  attends  hospital  every two weeks for apheresis (blood filtering). The victim tires easily.

[39]   The fifth and final aggravating of the offending is the breach of trust present in the offending. Mr Nolan submitted there was no breach of trust, but I consider that breach of trust is a relevant consideration in a long-term domestic relationship. A person in such a relationship is entitled to trust their partner, and trust that they will be safe in their own home.

[40]There are no mitigating features of this offending.

[41]   In light of the nature of the offending, and the circumstances in which it took place, I classify it as moderately serious offending. I note there is no guideline

judgment for assault on a person in a family relationship. That is because of the infinitely variable circumstances,10 and culpabilities of perpetrators. Courts have repeatedly opined that each case must hinge on its own facts. I consider an appropriate starting point in the vicinity of twelve months’ imprisonment could have been available.

Aggravating and mitigating features relating to Mr M

[42]   Mr M has no prior convictions for offending of this nature, and to that extent his offending on this occasion appears to have been out of character. He does have previous convictions for dishonesty, driving dangerously and the sale and supply of LSD and cannabis, but they are historic given the last of them occurred in 1999. However, I do not consider that the lack of family violence convictions enough, in and of itself, to lower the gravity of the offending below moderate. That is because of the numerous aggravating features present in the offending.

[43]   Initially, Mr Nolan submitted Mr M should get credit for engagement with Aviva. But it seems clear that Mr M did not engage meaningfully with them, as he does not believe himself to be a violent person.

[44]   Mr M pleaded guilty at his second pretrial call over and should get credit for that.

Conclusion: gravity of the offending

[45]   In light of these factors, in so far as the end sentence and the gravity of the offending is concerned, I consider the offending to be moderately serious.

Direct and indirect consequences of conviction

[46]   Mr Nolan submitted that Mr M would suffer the following consequences of a conviction, which are out of all proportion to the gravity of his offending:

(a)the potential for Mr M to lose his job;

10     R v Reihana CA 143/03, 3 July 2003 at [43].

(b)Mr M would be unable to travel;

(c)Mr M would be subject to opprobrium within his family;

(d)Mr M would be generally stigmatised.

[47]   Mr M is employed as a union organiser at E tū, a trade union that represents more than 50,000 workers. Mr M advocates for employees, often at their place of work. As a result, he has previously undergone a police vetting process to be able to have access to airports.

[48]   Mr M has produced no evidence, to either the District Court or this Court, to demonstrate a real and appreciable risk that he would lose his employment if convicted.

[49]   Mr M asserted that there are opportunities within his organisation to travel to overseas conferences. Again, no evidence was put before the District Court or this Court about: why Mr M has needed, or may need, to travel in the course of his employment; what countries he would need to travel to, and why he would be unable to travel to them; or why his general ability to travel would be adversely affected. Notwithstanding that, I find there may be some risk that his ability to travel is compromised.

[50]   I turn now to the concern Mr M has about being subject to familial opprobrium. At [20] of his affidavit of 24 July 2020 he described the dilemma in this way:

I believe that a conviction may be divisive and solidify tensions within the wider family. I feel that it will impact on my children and their views of me. I seek to instil good morals in them and that the use of violence is never appropriate. I want them to view me as a positive role model despite this incident.

[51]   I consider it unlikely that a conviction will negatively impact his children any more than witnessing the violence would have done. The negative impact derives from the underlying conduct in this case, and not from the conviction itself. I also observe that if Mr M wants to be a role model to his children, he should recognise that some urge triggered him to be violent and he should investigate what that was and how

he might prevent it occurring again. He has chosen not to. The effects he describes are an ordinary consequence of the offending.

Are the consequences of conviction out of all proportion to the gravity of the offending?

[52]   Having found that the gravity of the offending was moderately serious, I am not satisfied that a conviction in Mr M’s case would be out of all proportion to the gravity of his offending.

Result

[53]The appeal is dismissed.

[54]   I order the permanent suppression of the victim’s name, address, occupation and any other particulars that may lead to her identification under s 202(2)(a) of the Criminal Procedure Act 2011, as publication would be likely to cause undue hardship to the victim and her family.

[55] I order the permanent suppression of Mr M’s name, address, occupation and any other particulars that may lead to his identification under s 200(2)(f), as publication would be likely to lead to the identification of another person whose name is suppressed by the order in [54].

Doogue J

Solicitors:

Raymond Donnelly & Co, Christchurch