Mavor v Police
[2017] NZHC 2301
•22 September 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-19
[2017] NZHC 2301
BETWEEN JESSICA NICOLE MAVOR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 September 2017 Counsel:
F E Guy Kidd for the Appellant J N P Young for the Respondent
P J Elder (Probation Officer, The Department of Corrections)
Sentencing:
22 September 2017
(RE) SENTENCING NICHOLAS DAVIDSON J
Background to (re) sentencing
[1] Ms Mavor you appear for sentence on a charge of common assault under s 196 of the Crimes Act 1961.
[2] On the 29th of March 2017 you were convicted after a judge-alone trial on one charge of wounding with reckless disregard for the safety of another under s 188(2)
Crimes Act 1961.1
[3] On appeal against conviction, this Court delivered judgment on 15 August 2017 which set aside that conviction and substituted a conviction for
1 Police v Mavor [2017] NZDC 6490.
MAVOR v NEW ZEALAND POLICE [2017] NZHC 2301 [22 September 2017]
common assault under s 196 of the Crimes Act 19612. You appear for re-sentence on the lesser charge.
[4] For reasons which follow, the only question is whether you should be discharged without conviction, or whether the conviction should remain and you be discharged without further penalty.
The nature of the offending
[5] The judgment allowing the appeal against conviction describes the facts in detail, but from those the following elements are relevant to this sentencing.
[6] First, the assault occurred when you were dancing with friends in a bar, and after some insignificant differences you were pushed by the victim as he moved towards your friend. This was not in the nature of a lunge, or aggression towards you and the Judge’s conclusion was that there was no evidence that you subjectively believed you were under threat.
[7] Most of the Judge’s findings stood on appeal, and did not support a truly reflexive action by you “such as [you] being startled”.3
[8] An issue on appeal was whether you then struck the victim to the head knowing that there was a glass in your hand. This Court held that the reasonable inference is that someone is aware that they hold something in their hand, here the glass, but the charge against you required proof of a “conscious taking of risk”, and whether you recognised the risk that the glass might break. An element of foresight is required because to consciously disregard a possible consequence is to first be aware of it.
[9] On appeal it was held that your action lay somewhere in between a truly reflexive action and the obvious taking of risk. You were protective of your friend, and you thought you were helping her by keeping the victim away, and you had some reservations about him from much earlier interaction. While this was not a reflexive action of the kind where there was an opportunity to appreciate and understand the
2 Mavor v New Zealand Police [2017] NZHC 1935.
3 Above n 2, at [62].
implications of your actions, your striking the victim was an immediate response to being pushed or shoved, and it was a deliberate act.
[10] In the end, the Court was left with a reasonable doubt that you had the requisite appreciation that you held the glass when you hit the victim and foresaw the risk of wounding him by the glass breaking. You too took the real risk of being hurt if the glass broke.
[11] Thus on the facts, with no significant background to the offending, this was an assault by someone who happened to be holding a glass which broke, as was a real possibility, with quite severe consequences as the victim had 22 stitches, 10 internal and 12 external. He is likely to be permanently scarred with moderate disfiguring. His confidence levels have been affected.
[12] You were sentenced on the basis of this being a one-off incident. The Judge came to a sentence of six months community detention with 200 hours community work, and subject to supervision on terms set out in the pre sentence report. Probation supported a sentence of six months supervision. Community detention was to be served at your flat in Invercargill, with a curfew of 7:00pm to 7:00am seven days a week, and you were not to move from the address unless you had the approval of the Probation Officer. You were obliged to undertake and complete alcohol and drug counselling and abide by the rules of the programme to the satisfaction of the Probation Officer. The 200 hours of community work could be converted to training. You were directed to pay $1,000 to the victim for emotional harm.
Sentence served
[13] You had served 30 days of community detention with electronic monitoring and 21 and a half hours of community work before the appeal was allowed.
Re-sentencing
[14] The Crown submits that you should remain convicted but discharged without further penalty, given the sentence you part served. Mr Young of counsel opposes discharge without conviction. I will discuss his reasons shortly.
[15] I have had regard to the principles and purposes of sentencing, but the essential exercise for this judgment is first to assess the gravity of your offending.
[16] The assault itself boils down to your striking the victim’s head. You clearly had no thought for the consequences of your actions but the gravity includes your causing a quite serious injury. Having regard to your otherwise good character and clear record, there is good reason to consider a community based sentence. Having heard from the Crown and from Mrs Guy Kidd, I would regard such a sentence as meeting the purposes and principles of sentencing.
[17] However, you did not have the opportunity to plead guilty to this lesser charge. If you had I would have been inclined to a sentence of community work rather than a fine, given the injury.
[18] You have, however, applied for a discharge without conviction, on the following grounds. You are 24 years old facing sentence for an offence punishable by a maximum penalty of one years imprisonment. There was no opportunity for you to plead guilty to this lesser charge as I have said, and receive the benefit of a discount for guilty plea in relation to a significantly less serious offence than that of wounding with reckless disregard.
[19] The application is made under s 106 of the Sentencing Act 2002. Section 107 of the Act provides that a court must not discharge 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”.
[20] The Court of Appeal addressed the correct approach in Z (CA477/2012) v R, in these terms:4
… 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
4 Z (CA447/2012) v R [2012] NZCA 599 at [27].
Blythe, it will be a rare case where a Court will refuse to grant a discharge in such circumstances).
[21] Mrs Guy Kidd addresses ss 8(g) and (h) of the Sentencing Act 2002 which provide that the Court:
(g)must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in Section 10A; and
(h)must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe.
[22] There is no barrier to discharge without conviction for any particular offence. Judgment rests on the facts in each case. The striking out of itself was of little moment but for the glass in your hand. The real gravity is in the wounding and scarring.
[23] You have no criminal history, and have been willing to engage in the restorative justice process, but the victim declined. There is no violence in your character, and you have a great deal of personal support, reflected in fulsome character references.
[24]Overall, the gravity of the offence is submitted by Mrs Guy Kidd to be low.
[25] Then the issue turns to whether a bare conviction will have consequences out of all proportion to the gravity of the offence.
[26] Your chosen area of work is as a nanny and caregiver. This is your passion and your future career path. You have felt the impact of part of the sentence imposed which included community detention, and wearing an electronic monitoring bracelet to your place of work, and have chosen to step back from any nannying or child care work because of your being charged.
[27] You have been through a legal process which has taken one year and seven months, and counting, and during that time it seems you could not work as a nanny because Police vetting would have revealed the charge on which you were originally convicted. You have incurred high legal fees which you first paid yourself. You have had further costs of appeal.
[28] Mrs Guy Kidd submits the sentence you received would have been less severe than that you have already served, as a fine and reparation would have sufficed. I do not agree with this but that is not determinative.
[29] Mrs Guy Kidd also submits that the direct and indirect consequence of a conviction will fall on you as a young person, for your lifetime and will be out of all proportion to the gravity of your offence.
[30] Your youth is a primary ground for this application.5 I agree with the sentiments of Justice Whata in that case where there is a degree of branding by a conviction on such a charge, which may damage your career, and is so then that is relevant to proportionality. In that case, Amstad, a conviction on serious driving offences would have precluded the defendant from joining the army.
[31] In the field in which you have chosen to work, in which you have real qualities, it seems that Police vetting reveals convictions and other relevant information, including any other interaction with the New Zealand Police. So even if there is a discharge without conviction, nanny and child care agencies will become aware of your coming before the Court. That sort of “branding” as Justice Whata described it is thus inevitable.
[32] Mrs Guy Kidd submits, however, that a discharge without conviction is not hiding material from a prospective employer, but there will be less of an impact without a conviction because that would be recognised by a prospective employer who will see how the Court assessed the gravity of your offending in a broader context, knowing how the Court regarded your offending in your life context. Put even more squarely, Mrs Guy Kidd submits that an employer will chose an applicant for employment without a conviction as opposed to one who has a conviction. There will, however, be an obligation on you to disclose a conviction. The clean slate provisions of the Criminal Records (Clean Slate) Act 2004 do not apply in your case while you work in the child care area.
5 Amstad v Police (High Court, Auckland, CRI-2011-404-000161, 6 September 2011, Whata J) at [20].
[33] You would like to travel overseas to work and you and your partner contemplate travelling to Canada.
[34] You are considering studying to become an early childhood teacher, and that requires registration and you will again be subject to a Police check. There is no bar as such to registration based on a conviction for assault but it is submitted likely to be a significant impediment to your obtaining a position as an early childhood teacher in a kindergarten or childcare centre.
[35] When you did not work as a nanny because of the conviction for wounding, you worked in the hospitality industry, and you were highly regarded there. You say if you have a conviction for assault you would not want to apply for jobs as a nanny as you would have to tell them about the conviction and you do not feel you can face that because you do not think it reflects who you are. You say you are a private person and your friends do not know about this matter, which is something of a surprise to the Court.
[36] Overall, these potential consequences are submitted out of all proportion to the gravity of your offence.
[37] Mr Young for the Crown takes the view that no further penalty is required, but says this assault was not so minor as it had quite serious consequences. He submits that there is no factual basis to conclude that a discharge without conviction will have much more effect than a conviction and it is for The Education Council to determine how a conviction would affect your further education. However, he accepts that an employer faced with a choice between someone with and without a conviction, would chose the latter.
[38] I have paid regard to your affidavit in support, including the materials filed on your behalf. Mrs Guy Kidd has made a very thorough application on your behalf.
Disposition
[39] You have had the experience of nearly a month under community detention and community service, or work. I agree no further sanction is required but this is not the test for discharge without conviction.
[40] This assault had a serious consequence. The victim was wounded. The gravity of the offending is low to moderate because it was a minor assault made worse by the wounding. It is tempered by your good character, the very favourable references and the financial and personal impact on you to this day. My assessment of gravity is that this was a one-off incident with unfortunate consequences by someone with a good record and a promising future, who has paid a high price.
[41] I now come to my judgment with hesitation because your striking the victim, with a glass in your hand, in a bar, had these serious consequences. Your appeal was successful because you did not consciously disregard the risk when you struck out, but the law requires the consequences of all actions, if they constitute criminal offending, must be brought to account.
[42] But for your good record, your strong family and other support for you, and for your character, your application would not have succeeded as the gravity of the offending itself is not minimal. However, there is I consider, after some careful thought, an appreciable risk to your career in which you have a lot to give. You shall have real hurdles to cross but a conviction would I conclude disproportionately stand in your way and you are young just beginning your journey. In particular, you will not ever have a clean slate if the conviction stands, and that is a brand, as Justice Whata described.
[43] For those reasons the application is granted and you are discharged without conviction. This is conditional on your immediate payment of $1,000 to the victim for emotional harm and I expect that to be paid and advised to the Court by Monday 5pm next week.
[44] I therefore direct that you are discharged without conviction under s 107 of the Sentencing Act 2002. The conviction reflected in the judgment dated 15 August 2017 is set aside.
…………………………………………
Nicholas Davidson J
Solicitors:
Preston Russell Law, Invercargill FE Guy Kidd, Barrister, Invercargill