Mathieson v Police
[2019] NZCA 406
•3 September 2019 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA791/2018 [2019] NZCA 406 |
| BETWEEN | WARREN DAVID MATHIESON |
| AND | NEW ZEALAND POLICE |
| Hearing: | 19 August 2019 |
Court: | Brown, Simon France and Dunningham JJ |
Counsel: | D H P Schellenberg and K Petrie for Appellant |
Judgment: | 3 September 2019 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence is allowed.
BThe convictions for male assaults female and threatening to kill are quashed. The appellant is discharged without conviction on both charges.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
This appeal against a refusal to discharge without conviction proceeds pursuant to a grant of leave to bring a second appeal.[1]
[1]Mathieson v Police [2019] NZCA 97.
Mr Mathieson pleaded guilty to charges of male assaults female and threatening to kill. His first appearance was recorded as 8 August 2017 in the District Court. From thereon in the charges were managed in the Family Violence Court. His first appearance in the Family Violence Court was on 12 September 2017. Prior to that appearance Mr Mathieson, who had alcohol issues, had started on courses offered by Community Alcohol and Drugs Services. He had also made inquiries about anger management and non-violence courses.
Mr Mathieson’s rehabilitative efforts were monitored by the Family Violence Court for a period of 10 months prior to his actual sentencing. During that time, he completed 12 weeks of alcohol and drugs courses, and a 20-week Living Without Violence course. His monitoring sessions in the Family Violence Court were largely positive and supportive events.
The primary point on appeal is that the decisions of the District Court and High Court, particularly as regards the assessment of the gravity of the offending, give too little weight to those positive rehabilitative endeavours.[2] It is submitted this is due to an error in approach which has relegated these efforts to the question of penalty rather than factored them into the application of s 106 of the Sentencing Act 2002.
Facts
[2]Police v Mathieson [2018] NZDC 20147 [District Court decision]; and Mathieson v Police [2018] NZHC 3153 [High Court decision].
Mr Mathieson and the complainant had been in a relationship for three years. On an occasion in August 2017, there was an argument over an alleged infidelity. Mr Mathieson grabbed the complainant by the jaw with both hands. He desisted but then shortly after, as the argument continued, repeated the gesture. He also threatened to kill her. The complainant suffered a sore head and neck, with visible bruising to the front of her neck under her chin.
Mr Mathieson’s charges were referred to the Family Violence Court. After an initial not guilty plea, and then a change in the charges, six weeks after his 12 September appearance in the Family Violence Court he entered guilty pleas. By the time of that appearance he had commenced the Community Alcohol and Drug Services programme and had taken steps to be enrolled in stop violence programmes.
Mr Mathieson had case review and monitoring appearances before the Family Violence Court on 27 October 2017 and 23 January 2018. The feedback was positive. It seemed as if sentencing might occur on 17 April 2018 but a confusion over dates saw Mr Mathieson miss that appearance. The case was referred off for another sentencing date.
Judgments under appeal
Both judgments set out what is now a standard approach to s 106 applications:[3]
(a)First, assess the gravity of the offending. This involves consideration of the seriousness of the actual offending, but also includes any aggravating and mitigating factors that apply to the offender.
(b)Next, identify the direct and indirect consequences of a conviction.
(c)Finally, apply the statutory test of whether those consequences are out of all proportion to the assessed gravity of the offending.
[3]District Court decision, above n 2, at [7]; and High Court decision, above n 2, at [5]. The authorities usually cited are Z(CA447/2012) v R [2012] NZCA 599, [2013] NZAR 14; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620. The principles were recently reviewed in R v Taulapapa [2018] NZCA 414.
Judge Orchard assessed the actual offending to be moderately serious.[4] Her Honour noted there were two assaults, bruising to the neck area and accompanying threats to kill. Whilst the sentencing remarks also identified Mr Mathieson’s rehabilitative efforts, these did not result in any adjustment to the initial assessment of moderately serious. That was the gravity of the offending against which the balance of the process was conducted.
[4]District Court decision, above n 2, at [9].
Concerning consequences, Mr Mathieson had pointed to a clause in his employment contract which entitled the employer to consider termination if an employee is charged with a criminal offence. Mr Mathieson had not informed his employer of his situation. Her Honour noted this to be a consequence that flows from the fact of charging, not conviction.[5]
[5]At [12].
In the High Court Mr Schellenberg argued, as he does again on this second appeal, that insufficient recognition was given to Mr Mathieson’s post‑assault efforts to address the causes of his offending. Brewer J responded in these terms, a response Mr Schellenberg submits contains errors of principle:[6]
[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.
(Emphasis added.)
[6]High Court decision, above n 2.
As for the next stage, his Honour’s assessment of the consequences of the offence largely mirrored that of the District Court and the appeal was accordingly dismissed.
Decision
Mr Schellenberg submits the italicised observations are errors of principle in that they appear to relegate the mitigating factors to issues of penalty rather than as being relevant to the assessment of the gravity of the offending for the purposes of the s 106 application. We accept they can be read that way, and if that was the intention, it would be incorrect. However, we note the Judge earlier in the decision set out the correct approach,[7] and do not consider he was suggesting the law to be different.
[7]At [5].
Where we do differ from the Judge is in his assessment that the District Court took account of the mitigating factors when assessing gravity of the offending.[8] We agree the ultimate penalty of a fine of $350 is explicable only by having regard to Mr Mathieson’s rehabilitative efforts, but do not see any evidence that the same consideration was undertaken in relation to the gravity of the offending assessment. The reality is that the initial grading of the offending itself never changed.
[8]This conclusion is reflected in [13] and [15] of the High Court decision; set out above at [11].
Assuming for present purposes that an assessment for the actual offending of moderately serious was correct, then the relevant mitigating factors were many and strong:
(a)at the time of sentencing Mr Mathieson was a 40 year old who had only a careless driving conviction committed when he was 19 years old;
(b)he has been in constant employment all his adult life;
(c)he had completed courses addressing the causes of his offending and appeared to display considerable insight into his offending;
(d)he was remorseful and offered to participate in restorative justice, so he could apologise directly; and
(e)the impetus for undertaking the rehabilitative courses came from him before any formal engagement with the Court.
We do not consider it possible for a proper consideration of these factors not to have resulted in a significant reassessment of the overall gravity of the offending. In terms of the observation made by the High Court, we observe such a reassessment does not constitute a recharacterisation of the seriousness of the offending. They are two different evaluations, reflecting the two steps inherent in the first stage of the s 106 assessment discussed above at [8]. The first is an initial grading of but one aspect of the case — the actual offending; the second evaluation is a much broader analysis of all relevant considerations, including the actual offending. That the overall assessment of gravity is lower than the narrower assessment of the offending merely reflects that at the second step within the gravity assessment there are positive mitigating factors to also consider.
We accordingly disagree with the High Court’s endorsement of the District Court assessment of gravity. We consider the District Court did not apply the correct approach because its assessment of the overall gravity of the offending did not take into account the very positive mitigating factors. Had that been done, the conclusion would have been an overall assessment of low seriousness.
We turn next to the consequences. The requirements of s 107 of the Sentencing Act in this regard were recently reviewed in R v Taulapapa and we do not repeat the exercise. It is established that there must be a real and appreciable risk that consequences will eventuate in order for them to be considered. Evidence is normally required, but it is a matter for a court as to whether what is available is sufficient. The difficulties of obtaining evidence from a current employer may mean judicial notice of facts may be appropriate.[9]
[9]R v Taulapapa, above n 3, at [41]–[46].
We consider that it is important in the present case not to over analyse the employment contract, and whether a termination process is triggered by a charge or a conviction. What can be said is that the contract provides evidence that the employer considers an employee’s engagement with the criminal justice system as a defendant is relevant to their job. There is an obvious risk it will lead to a review of the employment. We consider it can be fairly inferred that within this process a conviction will be seen as more significant than a charge. Thus, there is a real and appreciable risk that a conviction will impact on Mr Mathieson’s employment status. Beyond that we cannot go, but in these situations, courts usually cannot say more.
Another consequence raised was that Mr Mathieson had plans to emigrate to Australia. We agree with the courts below that these were too lacking in specificity to merit weight. Nor is there evidence that potential impact on travel in this case is any different from the ordinary consequence attaching to a conviction.
Concerning the balancing test, neither of the courts below have looked at the matter from the viewpoint that the gravity of the offending is at a low level of culpability. We are satisfied that once one does, a discharge without conviction is appropriate. There is no basis to consider Mr Mathieson offers any risk of reoffending; to the opposite effect, the signs are that he is now a person with insight into his actions who has taken considerable steps towards addressing the causes of his offending. Given the overall low culpability, we consider the impact of a conviction for male assaults female and threatening to kill on a 41 year old in stable employment and who is effectively a first offender would be out of all proportion.
Result
The appeal against conviction and sentence is allowed.
The convictions for male assaults female and threatening to kill are quashed. The appellant is discharged without conviction on both charges.
Solicitors:
Crown Law Office, Wellington for Respondent
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