Marszolek v Police
[2015] NZHC 2858
•17 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000302 [2015] NZHC 2858
BETWEEN JACEK MARSZOLEK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 November 2015 Appearances:
Dr Michael Kidd for the Appellant
Rebekah Thompson for the RespondentJudgment:
17 November 2015
JUDGMENT OF MOORE J [Appeal against conviction]
This judgment was delivered by me on 17 November 2015 at 5:00pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
MARSZOLEK v NEW ZEALAND POLICE [2015] NZHC 2858 [17 November 2015]
Introduction
[1] The appellant, Jacek Marszolek, pleaded guilty in the District Court at
Waitakere on two charges:
(a) performing an indecent act;1 and
(b) refusing to provide a blood specimen.2
[2] On 25 August 2015 Judge Tremewan refused Mr Marszolek’s application for a discharge without conviction. She convicted Mr Marszolek, fining him $450 on each charge and disqualifying him from holding a driver’s licence for six months.
[3] The issue on appeal is whether Mr Marszolek should be granted a discharge without conviction on the basis that the consequences of conviction are disproportionate to the gravity of the offending. The Police oppose the application on the basis that the statutory threshold is not met.
Factual background
[4] On the evening of Saturday, 7 March 2015 Mr Marszolek was next to his car in a public car park behind the Black Salt Bar in New Lynn. There he was seen by a couple who noticed he was partly naked with his genitals exposed. They were shocked and told him to cover himself up.
[5] He refused. Instead, he grabbed his genitals with one hand and shook them at the couple in an offensive way. He then got into the car and drove a short distance down the road. The Police arrived as he was getting out of the car and noticed he exhibited signs of recent alcohol consumption. A roadside breath screening test was administered which revealed a breath/alcohol level in excess of 400 micrograms of alcohol per litre of breath. Mr Marszolek was required to accompany the Police for
the purposes of undergoing an evidential breath test. He refused to provide a sample
1 Crimes Act 1961, s 125(1): maximum penalty two years’ imprisonment.
2 Land Transport Act 1998, s 60(1)(a): three months’ imprisonment, $4,500 fine, minimum period of disqualification six months.
of breath and when he was asked to supply a sample of blood he also refused that request.
Personal circumstances
[6] Mr Marszolek is Polish. He has previously lived in Germany and Australia. He has been in New Zealand since November 2014. He is in a relationship with an Australian woman. Mr Marszolek filed an affidavit in the District Court and in this Court he has filed two statutory declarations; one from himself and the other by his Australian partner.
[7] In his affidavit he described the offending as “spur of the moment”. He had been celebrating his promotion to credit controller. He could give no explanation for why his genitals were exposed. He claimed he was not aware there were members of the public around. He denied he was deliberately exposing himself and could not remember whether he had an erection at the time although he denied trying to masturbate.
[8] In his statutory declaration Mr Marszolek said that in September 2015 when his employer learned of his convictions he was dismissed. He said that his position as a credit controller requires him to work with large sums of money and a clean criminal history is required. He added that his criminal convictions would lessen his ability to apply to enter or re-enter Australia or New Zealand.
[9] Somewhat curiously, his statutory declaration makes no reference at all to his Australian partner. His affidavit in the District Court is barely more informative. He simply records his girlfriend lives in Perth and he corresponds with her via Skype. He says nothing about any intentions to move to Australia let alone marry her. In stark contrast, in her statutory declaration, his girlfriend/partner says she has known Mr Marszolek for eight years having met him in Western Australia when he was there on a work permit. She says the couple lived together in 2007 and 2008 and then continued a long distance relationship. In 2013 and 2014 she decided to find a Masters course in Germany which would permit them to live together in Berlin. She said she was unable to finish her course due to illness and a subsequent diagnosis of multiple sclerosis in 2014. She said she returned to Perth where Mr Marszolek
visited her in October 2014 before leaving to undertake a working holiday in New Zealand. She said that the couple were planning to continue their relationship with the intention of marrying in Australia and Mr Marszolek becoming her full-time caregiver.
District Court decision
[10] Judge Tremewan observed that the offending was moderately serious although she did note that Mr Marszolek appeared to be a first time offender.
[11] Her Honour considered the consequences of the offending noting that Mr Marszolek was in New Zealand on a short term working visa and there was no indication that he was planning on staying longer than November. She thus observed there was no measureable impact on his immigration status and observed that, in any event, this was a matter best left for the authorities.
[12] No mention was made that Mr Marszolek would lose his employment as a result of this conviction. Nor, it seems, was any mention of Mr Marszolek’s intentions to return to Australia to marry his partner and undertake her care. This is hardly surprising. Nowhere in any of the material before Judge Tremewan was there any reference to these aspects which are, for the first time, raised in this Court and which are now the focus of Mr Marszolek’s application for a discharge without conviction.
Appellant’s submissions
[13] Dr Kidd, who was not counsel for Mr Marszolek in the lower Court, submits that Judge Tremewan overstated the seriousness of the offending. He submits there was no deliberate exposure. He makes no submissions in relation to the blood alcohol charge.
[14] Dr Kidd submits that Mr Marszolek’s travel plans to Australia are the primary issue the Court should take into account. Mr Marszolek is required to leave the country by 21 November 2015 and must thus consider whether to apply to extend his visa or apply for a visa or work permit in Australia. Dr Kidd submits that
Mr Marszolek’s girlfriend/partner is very supportive of him and he wishes to go to Australia to be with her. He submits that the Judge did not properly take into account Mr Marszolek’s travel and immigration plans or the consequences of a conviction which may have the result of him being unable to be with his Australian girlfriend/partner.
[15] He also submits that Mr Marszolek’s status as a first time offender with an apparently previous good record was given insufficient weight by the Judge who, had she properly considered the direct and indirect consequences of the convictions, would have concluded that the consequences were out of all proportion to the gravity of the offence.
Respondent’s submissions
[16] Ms Thompson, for the Crown, submits that Judge Tremewan was correct to classify the offending as moderately serious. She pointed out that the charge of indecent assault carries a maximum penalty of two years’ imprisonment and the manner of the exposure, its context and its circumstances justify its classification as moderately serious. Furthermore, in terms of the blood alcohol offending, while Mr Marszolek claims he was unfamiliar with the mandatory requirements to give a blood sample it was apparent from his conduct, including his subsequent admissions, that he was intoxicated. In any event, ignorance of the law is no excuse as was noted by the Judge.
[17] Ms Thompson accepts that Mr Marszolek has now lost his job apparently as a result of the conviction. In terms of future employment prospects, Ms Thompson observes the Court should be hesitant to place great weight on factors which are not supported by evidence.
Discharge without conviction
[18] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. This discretion is subject to the test in s
107 being satisfied. That test provides:
“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.”
[19] When the s 107 test is met, the Court then has a discretionary power to discharge under s 106, however when the test is satisfied this will usually result in a discharge.
[20] An appeal against a refusal of discharge is by way of rehearing with the Court hearing the appeal making a new assessment in accordance with its own opinion.3
The Court of Appeal in R v Hughes concluded that as the s 107 test was not discretionary, an appeal against the Court’s decision on this matter was not an appeal against discretion.4 An appeal against discretion would only arise if the Court held that s 107 was satisfied but nonetheless chose not to discharge the offender.
[21] The approach to be followed in applying the s 107 test is set out in Z v R
where Arnold J held:5
“...[w]hen 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...”
3 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].
4 R v Hughes, above n 3, at [11].
5 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]
[22] The first passage involves the engagement of a 4-step approach whereby the
Court must:
(a) determine the gravity of the offence, having regard to both the aggravating and mitigating factors of the offence and also those of the offender;
(b) determine the direct and indirect consequences of conviction;
(c) assess whether these consequences are out of all proportion to the gravity of the offending; and
(d)if (c) is answered in the affirmative, determine whether to exercise the residual discretion to grant a discharge.
[23] What this approach requires is that the Court must first determine the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offence, and also to those factors which apply to the offender. The Court should then determine the direct and indirect consequences of a conviction and decide whether they are out of all proportion to the gravity of the offender. Only when the Court is so satisfied may it exercise its discretion to grant a discharge.
Analysis
[24] I shall now turn to consider each of these steps in turn.
(a) The gravity of the offending
[25] The indecent act charge carries a maximum penalty of two years’ imprisonment. Contrary to Dr Kidd’s submission it is plain from the summary of facts and Mr Marszolek’s own description of the offending contained in his affidavit that Mr Marszolek’s indecent exposure was deliberate and sustained. It is of significance that once Mr Marszolek knew he had been observed and had offended those who had observed him, he did not stop. Instead, he deliberately drew attention to his exposed state. His only possible motive in doing so was to cause even greater
offence. His driving, while only over a relatively short distance, is also conduct which, in itself, would generally warrant a conviction.
[26] In my view the Judge was entirely correct to describe the offending as moderately serious.
(b) Direct and indirect consequences of conviction
[27] Dr Kidd submits there are two consequences of conviction which are engaged in the present case.
[28] First, and the factor which Dr Kidd appears to place greatest emphasis on, is that a conviction would make it more difficult for Mr Marszolek to re-enter Australia. Dr Kidd submits that Mr Marszolek has closer ties to Australia than New Zealand not only through his Australian girlfriend/partner but also because he has an excellent employment reference from that country.
[29] Where a defendant claims they should be granted a discharge without conviction in reliance on future overseas travel difficulties the evidence provided to the Court should be detailed and reliable. In Brunton v Police Clifford J made the following comments when deciding to grant a discharge on the basis of potential
travel difficulties to Canada:6
“The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often be seen as a universal consequence and unless real evidence can be shown that a conviction would impede entry into another country such speculative consequences will not form the basis for a discharge without conviction.”
[30] There must be a real and appreciable risk of adverse consequences.
[31] In the present case the evidence relied on comes from the two statutory declarations made by Mr Marszolek and his Australian girlfriend/partner. The highest which Mr Marszolek puts it is as follows:
“Additionally, my criminal conviction would lessen my chance to apply/re-
enter to Australia/New Zealand.”
[32] It is noteworthy Mr Marszolek makes no reference to travel difficulties. Furthermore, in his affidavit filed in the District Court he makes no mention of any aspiration or future intention to travel to Australia. He simply states:
“I also wish to bring to the Court’s attention that my NZ visa will be expiring in November of 2015 and this is a (sic) additional reason for a s 106 as I would be concerned that if convicted I may not have the chance to renew this Visa.”
[33] In other words, when Mr Marszolek pleaded guilty the question of travel to
Australia does not seem to have been even contemplated.
[34] As noted earlier, it is also curious that in his later statutory declaration Mr Marszolek, contrary to his girlfriend/partner’s statement, makes no reference to his future plans to travel to Australia or to live there with his partner.
[35] It follows that there is no reliable evidential foundation for the claim that Mr Marszolek actually intends to pursue a future in Australia. On the evidence, at its best, it is a mere possibility and is too speculative to be given serious consideration. There is no evidence of a real or appreciable risk of an adverse consequence of Mr Marszolek’s convictions on his future travel plans.
[36] Secondly, and related to the first ground, Dr Kidd submits that Mr Marszolek’s employment prospects have already been adversely affected by the convictions which will operate to make re-employment more challenging. Mr Marszolek has produced a reference from a former employer in Western Australia who speaks well of him and says he would re-employ him. That reference is dated 12 March 2015. I accept that there are general consequences which flow
from a conviction including employment.7 I also accept that the nature of the
criminal charge Mr Marszolek has been convicted of will, inevitably carry with it particular negative connotations.
[37] Mr Marszolek has observed he has been required to answer questions about convictions and job applications in the affirmative. He has not linked that requirement to any missed employment opportunities.
[38] But again, as with the claim in relation to travel difficulties, the evidence before me is simply insufficient to support the submission that the consequences of conviction will necessarily mean that Mr Marszolek’s travel and employment prospects will be adversely affected to the extent submitted. This Court has previously cautioned against granting a discharge when the consequences are unclear and where there is insufficient evidence to support counsel’s assertions as to the
consequences.8
(c) Balancing act
[39] On balance, I am far from satisfied that the consequences of Mr Marszolek’s convictions are out of all proportion to the offences. While not at the most serious end of the scale the Judge’s description of the offending as “moderately serious” is in my view an accurate one.
[40] I accept the consequences for Mr Marszolek may well be inconvenient but there is no sufficient evidence before the Court which enables me to make any reliable assessment of the risks without venturing into the speculative and hypothetical. There is no evidence that Mr Marszolek would be restricted from obtaining a visa to live or work in Australia. Nor is there any evidence he has missed out on other employment options because of his convictions. The consequences of conviction for Mr Marszolek are no more severe than those experienced by anyone with a criminal convictions of this sort.
(d) Should I exercise the discretion?
[41] Because I am not satisfied that the consequences of conviction are out of all proportion of the gravity of the offending, the residual discretion under s 106 is not engaged.
Result
[42] The appeal against conviction is dismissed.
Moore J
Solicitors:
Dr Kidd, AucklandCrown Solicitor, Auckland
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