Mathieson v New Zealand Police

[2018] NZHC 3153

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-251 [2018] NZHC 3153

BETWEEN

WARREN DAVID MATHIESON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 November 2018
Counsel:	D Schellenberg for Appellant H Reid for Respondent
Judgment:	3 December 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 December 2018 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell (Auckland) for Respondent

MATHIESON v POLICE [2018] NZHC 3153 [3 December 2018]

Introduction

[1]      On  17 July  2018,1   Judge  DJ  Orchard  refused  to  discharge  Mr Mathieson without conviction on one charge of male assaults female2 and one charge of threatening to kill.3   Mr Mathieson now appeals that decision.

Approach on appeal

[2]      I must allow the appeal if I am satisfied that, for any reason, Judge Orchard made  an  error  such  that  Mr Mathieson  should  have  been  discharged  without conviction.4

[3]      The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:

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.

[4]      It can be seen there is a high threshold between an offender and a discharge without conviction.  It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence.  The Judge must be satisfied that the consequences would be out of all proportion to the gravity of the offence.

[5]      To apply the test properly, a Judge must (as did Judge Orchard) conduct a three- step analysis:5

(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.

1      Police v Mathieson [2018] NZDC 20147.

2      Crimes Act 1961, s 194(b). The maximum sentence is two years’ imprisonment.

3      Crimes Act 1961, s 306. The maximum sentence is seven years’ imprisonment.

4      See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]-[13].

5      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]-[9].

(b)Determine the direct and indirect consequences of a conviction for the offender.

(c)Determine whether those consequences are out of all proportion to the gravity of the offending.

[6]      I will examine Judge Orchard’s reasoning against the circumstances before her and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.

Did the Judge make an error such that Mr Mathieson should be discharged without conviction?

(a)      The gravity of the offending

[7]      Mr Mathieson and the complainant had been in a domestic relationship for three years. On 6 August 2017, having arrived home from a party, they began arguing because Mr Mathieson thought the complainant was having an affair. He grabbed the complainant by the jaw with both hands before letting her go and walking into his bedroom. But he returned, and the argument continued. Mr Mathieson again grabbed the complainant by the jaw with both hands.  He threatened to kill her.  He again let her go and went back to his bedroom.

[8]      The incident did not stop at this point. Mr Mathieson came out of his bedroom and the argument flared anew.  Mr Mathieson pushed the complainant up against the wall and said, “If it wasn’t for your son I would kill you now.” The complainant broke free from Mr Mathieson, who continued to verbally abuse her and he demanded she leave the address. The complainant did.

[9]      The complainant sustained a sore head and neck along with visible bruising to the front of her neck beneath her chin.

[10]     Mr Mathieson admitted his offending and took substantial steps to address the underlying causes.  He was monitored for 10 months by the Family Violence Court. He  completed  a  20-week  anger  management  programme  with  Man Alive  and

12 weeks of counselling at Community Alcohol and Drug Services (CADS).   He

expressed remorse and wanted to participate in a restorative justice conference.  His pleas of guilty were entered at an early opportunity, he was of previous good character and the chances of him further offending were negligible. The Judge said:

[5]       … I accept those are positive efforts made on your behalf to make sure that there is no repetition of this sort of offending, and the fact that you have undertaken those courses reflects well on you.

[11]     The Judge concluded that, given the seriousness of domestic violence and the repeated use of violence during the incident, coupled with two threats to kill, the offending was of moderately serious gravity even taking into account the mitigating personal circumstances.

[12]     Mr Schellenberg  for  Mr Mathieson  submits  the  Judge  placed  insufficient weight on the personal circumstances.  He accepts the Judge’s determination that the offending itself was moderately serious but submits the Judge erred in failing to reduce that characterisation by factoring in the rehabilitative efforts made by Mr Mathieson, his remorse and acceptance of responsibility, and his good character.

[13]     I understand Mr Schellenberg’s point, but I think it is largely a matter of semantics. The penalty imposed by the Judge was a fine of $350 and an order for the payment of Court costs of $130 on the charge of male assaults female. On the charge of threatening to kill, Mr Mathieson was convicted and discharged.   This penalty shows the Judge must have taken Mr Mathieson’s personal circumstances as reducing the gravity of the offending from the moderately serious.

[14]     As Judge Orchard recognised, domestic violence is inherently serious.  The repeated use of violence in this case, directed to the area of the head and coupled with threats to kill, made it a moderately serious example of male assaults female.  That does not change through post-assault efforts. What changes is the extent to which the Court must sanction Mr Mathieson for his moderately serious offending.  So long as this is recognised, I do not think a Judge needs to change the word picture.  It would be inappropriate, for example, to say words to the effect: “This was moderately serious offending but because of what you have done after the incident, I will now characterise it as offending which is not very serious at all.”

[15]     In short, Judge Orchard recognised the degree to which the Court should respond punitively to Mr Mathieson’s offending given his efforts after the offending and his other personal circumstances.  It is against that picture that the next stages of the test have to be addressed.

(b)      Consequences of a conviction

[16]     Judge Orchard took into account specific consequences submitted to her.

Mr Mathieson is a landscape gardener with some 20 years’ experience.  He has been employed by his current employer since 2017.  His employment contract contains a provision that it may be terminated without notice or payment by the employer if he is charged with any criminal offence.   The Judge emphasised this possible consequence  is  already  engaged  because  Mr Mathieson  has  been  charged  with criminal offences.  The Judge was told Mr Mathieson had not informed his employer of the charges (and Mr Schellenberg told me this is still the case), but considered it would be wrong for the Court to do anything to prevent the employer becoming aware of Mr Mathieson’s position:

[11]      …  In  my  view  employers  are  entitled  to  make  fully  informed decisions about matters of employment and it would be usually wrong of the Court to conceal matters relevant to them. This is obviously a relevant matter to them or it would not be in your employment contract.

[17]     It was submitted to Judge Orchard that a conviction would make it more difficult for Mr Mathieson to find work with other landscaping companies should his employment be terminated.  The Judge was not prepared to accept that submission without evidence.

[18]     The other potential consequence advanced to the Judge was a suggestion

Mr Mathieson might decide to go to Australia at some point.  A conviction might jeopardise his chances of doing so.  The Judge accepted that, generally, a conviction will make difficulties for the convicted person, but that is a natural consequence. There was no specific consequence put forward here.

[19]     On appeal, Mr Schellenberg argues Judge Orchard weighed the submitted consequences of conviction too lightly.   He submitted the Judge should have concluded there was a real and appreciable risk that Mr Mathieson’s current and future

employment opportunities were in serious jeopardy.   He submitted the Judge was wrong to make a distinction between Mr Mathieson being charged with an offence and being convicted of one. In essence, the submission is that the employment agreement could not be invoked over a mere charging since that would be against the presumption of innocence and principles of natural justice. The employment agreement could only be enforced if a conviction was entered.

[20]     Further, Mr Schellenberg submits the Judge was wrong to say the Court should not  do  anything  to  prevent  Mr Mathieson’s  employer  becoming  aware  of  the offending.  He submits the main basis on which defendants are granted discharges without conviction is to prevent damage to employment opportunities.  I accept that discharges without conviction are sometimes granted where the fact of conviction would raise a real and appreciable risk to present or future employment.  The Judge’s point was that the Courts do not set out to hide criminal conduct from those who have the right to know about it, such as employers.  I agree with that point.

[21]     In my view, Mr Mathieson has not pointed to any consequences of a conviction which are outside the ordinary consequences to be expected when a person commits a criminal offence. Mr Mathieson has worked for his current employer since 2017. The offending took place on 6 August 2017 and it is now December 2018.  Mr Mathieson continues to work for his employer and has decided not to tell the employer about his offending.  If the employer learns of the offending then it will have to decide whether it can (under employment law) and should terminate Mr Mathieson’s employment.  I was told Mr Mathieson does not have special landscaping qualifications and does not have formal responsibility within the employer company.  The Court’s response to

Mr Mathieson’s offending makes it clear that, overall, the Court did not consider a significant punishment was necessary.  Accordingly, there is no real and appreciable risk that if Mr Mathieson’s convictions stand, he will lose his job.   That is just a possibility,  and  a  reasonable  employer  would  have  regard  to  Mr Mathieson’s rehabilitative efforts. The same can be said of the effects on Mr Mathieson’s chances of gaining employment with other employers. In any case, and consistent with what I

said in [20], it is not the function of the Court under s 106 to pre-empt decisions by employers about the suitability of prospective employees.6

[22]     There are no specific plans for Mr Mathieson to move to Australia.  There is no evidence as to how the Australian authorities would regard convictions of this nature which result in a modest fine.  All that can be said is that convictions might inhibit emigration. The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context.7

[23]     In short, I see no overall error in the Judge’s assessment of the consequences for Mr Mathieson of convictions.

(c)      Proportionality assessment

[24]     Judge Orchard was not satisfied that the consequences of convictions for

Mr Mathieson would be out of all proportion to the gravity of his offending. The Judge repeated her assessments that the offending is moderately serious but the consequences of convictions are not likely to be serious.

[25]     Mr Schellenberg’s submission is that the Judge misdirected herself as to the gravity of the offending and to the likely consequences of convictions. Therefore, the Judge erred in her proportionality assessment.  In essence, Mr Schellenberg poses the question: “What more could Mr Mathieson have done to mitigate his offending? Why should he now be at risk of losing his employment?”

[26]     The answer is threefold: the nature of the offending, the lack of identified and specific consequences, and the high threshold of the proportionality test.

[27]     Domestic violence is inherently serious. Mr Mathieson’s efforts to rehabilitate himself, and his previous good character, meant the Court’s response to his offending was very significantly muted.  But, he cannot point to particular consequences which will arise if convictions are entered against him. There is a possible risk his employer

6      Graham v Police [2018] NZCA 172 at [29].

7      Brunton v Police [2012] NZHC 1197 at [16]; Marszolek v Police [2015] NZHC 2858 at [29];

Wanoa v Police [2018] NZHC 259 at [35].

would see his convictions, even though they were met with a low level fine, as grounds to terminate his employment. There is a possible risk that other employers might hold convictions against him in the future.  He might face increased scrutiny if he wishes to travel abroad.  Those are the sorts of consequences which might be expected to attach to any person convicted of criminal offending.  But I agree with the Judge that those general consequences cannot be said to be out of all proportion to the gravity of the offending.

Decision

[28]     The appeal is dismissed.

Brewer J