Miller v Police
[2015] NZHC 2747
•6 November 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-57 [2015] NZHC 2747
BETWEEN DYLAN POTOCKI MILLER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 October 2015 Counsel:
N J Sainsbury for Appellant
M J Ferrier for RespondentJudgment:
6 November 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] Mr Miller pleaded guilty to two charges of breaching a protection order in the District Court. On 31 July 2015, Judge Adeane declined Mr Miller’s application for a discharge without conviction, entered convictions and ordered Mr Miller to come up for sentence if called upon within 12 months.1 Mr Miller now appeals against Judge Adeane’s decision not to discharge him without conviction.2
Background
[2] Mr Miller separated from his wife on or about 18 November 2014.
[3] On 3 December 2014, Mr Miller was served with a temporary protection order. The applicant was his wife.
1 New Zealand Police v Miller [2015] NZDC 14935.
2 New Zealand Police v Miller [2015] NZDC 14536.
MILLER v NEW ZEALAND POLICE [2015] NZHC 2747 [6 November 2015]
[4] On 14 December 2014, Mr Miller and Mrs Miller attended the Wellington Christmas parade with their children. At approximately 3.30 pm, they were on Leeds Street when an argument developed between them. Mr Miller began yelling at Mrs Miller. She felt intimidated and scared, and she took the children to the car. Mr Miller left but then returned and yelled at Mrs Miller again. She left in her car. These events gave rise to the first breach.
[5] Shortly afterwards, Mrs Miller received multiple text messages from Mr Miller. They concerned his intention to hire a lawyer and remove the protection order. He stated that he hated Mrs Miller and that he thinks she is selfish. Those messages gave rise to the second breach.
[6] Mr Miller himself reported these incidents to the police. His wife said subsequently that she was not aware that Mr Miller’s actions were a breach of the temporary protection order until the police made contact with her.
[7] Mr Miller is 38 years old. He has three historic convictions for driving offences, two for driving with excess breath alcohol (in 1996 and 2001) and one for driving while disqualified (in 2002). Mr Miller has been convicted and discharged on five earlier charges of trespass, resisting the police, fighting in public, disorderly behaviour and assaulting the police. The incidents which gave rise to those charges occurred between July 2001 and January 2004.
The challenged decision
[8] The Judge described the offending as “indecorous in the extreme”, acknowledged that verbal rather than physical violence was involved, and that it must have been “embarrassing” and “troubling” for the children to witness the incident. However, he noted that it was “no worse than a moderate example of its kind”, being “towards the bottom end” of protection order breaches.
[9] The Judge noted counsel’s submissions that the consequences of a conviction were the general stigmatising effect, that it would affect his employment prospects generally, that it would be an impediment to him obtaining law-related employment, and that it may limit his participation in his children’s education.
[10] The Judge described all those consequences, aside from the stigma, as being
“conjectural”.
[11] The Judge also referred to the fact that Mr Miller had been previously discharged without conviction. He said:
[9] Significantly, however, Mr Miller is on familiar territory where applications under s 106 (or predecessors) are concerned. This was not raised in any of the original documentation. It was first revealed by the police in their opposition and has since been dealt with shortly by the defendant, who effectively says that the presence of previous convictions is no more than a neutral feature in the case. I have to say that in the Court of public opinion, that may not necessarily hold true.
[12] The Judge concluded:
[13] The conclusion I have reached in all of this, bearing in mind the previous discharges, but not allowing those to dominate, is that nevertheless this is an occasion on which a conviction should be entered. What really is most important in this matter is that Mr Miller needs to know that impulsive capitulations to anger, frustration or whatever, even against the background of depression or understandable upset at a more day-to-day level are not acceptable. This was a very public spectacle which he made, not only of himself, but of his wife and in front of his children and Mr Miller now needs to understand that unless he behaves better in future than he has in the past, there will be further convictions and escalating criminal consequences.
Appeal
[13] Mr Sainsbury, who argued this appeal for Mr Miller, did so on the basis of four points:
(a) The Judge erred when he referred to the “public embarrassment” Mr
Miller’s behaviour had occasioned.
(b) The Judge improperly relied on the fact of Mr Miller’s previous
discharges without conviction.
(c) The Judge did not take appropriate account of the mitigating significance of the fact that Mr Miller himself had reported this incident and that he had subsequently attended counselling.
(d) The Judge underestimated the adverse consequences of a conviction. [14] I consider each matter in turn.
[15] I accept that the Judge’s characterisation of the incident as “a very public spectacle” may be something of an overstatement. The Judge may have been under the impression that the incident occurred whilst the family were watching the Christmas Parade. In particular, although Leeds Street (where the first breach occurred) is a public thoroughfare, it is very much a back street. Certainly it is some distance from where the Christmas Parade would have passed. The Judge concluded, nevertheless, that Mr Miller’s breach of the protection order was “no worse than a moderate example of its kind” and “towards the bottom end” of offending of this nature. I agree with that assessment. I do not think the Judge’s possible misunderstanding of where the incident occurred means he overstated its significance.
[16] I accept that the Judge did regard the fact that Mr Miller had previously been discharged without conviction for a number of offences as a factor counting against a discharge without conviction on this occasion. As Mr Sainsbury acknowledged, and in contrast to the position put in the written submissions filed for Mr Miller, previous discharges without conviction can be relevant considerations on a subsequent application. Mr Sainsbury argues, however, that this is only appropriate where the previous discharges were for the same type of offending. That, he says, is not the case here.
[17] The relevance of previous discharges, in the context of an application under s 106, was described by Katz J in Swami v Police as follows:3
[25] Courts have of course on occasion been willing to grant two or more discharges without conviction to the same offender. However, it has been recognised that a previous discharge without conviction for offending of the same type must count against a discharge on a later occasion: Morgan v Police and Police v McCabe. In my view this is particularly so in the context of breaches of protection orders.
[18] The relevant quote from Morgan v Police, which involved a charge of possession of cannabis, is as follows:4
Further, she was before the Court again in 1998 on a similar charge, when she had the benefit of a discharge without conviction. She was also discharged without conviction on a charge of disorderly behaviour in 2000. So this is the fourth occasion upon which the appellant has appeared before the Court on a drug possession charge. Moreover, a previous discharge without conviction for offending of the same type must count against a discharge on a later occasion: Police v McCabe …
[19] It is important to note that the mere fact of a previous discharge is less important than whether it was granted in respect of similar offending. I accept that although the discharges were not the Judge’s primary consideration in entering the convictions, he did not refer to this distinction.
[20] I am unable to accept the Crown’s argument that the previous discharges were for the “same type of offending” as the present offending. Trespass, resisting police, disorderly behaviour and assault are all serious offences, but are of a different nature to a breach of a protection order. A breach of a protection order occurs against the backdrop of a relationship between an offender and a victim, and it involves breach of a specific direction not to contact an identified person. That is different to a more general breach of public order. In addition to the fact that the discharges were for offences of a different type, they are also reasonably historic, the most recent one occurring in 2004 (more than a decade ago).
[21] Nevertheless, and as the Judge in effect recognised, the earlier incidents do throw some light on Mr Miller’s seeming tendency to react aggressively in public to actual or perceived provocation. To the extent that this offending can be seen as involving like behaviour, Mr Miller’s previous discharges are not, in my view, a completely neutral factor. As the Judge said, he bore them in mind. I am not persuaded that he erred in doing so.
[22] Whilst accepting the Judge’s “bottom end” characterisation of the seriousness of Mr Miller’s breach, Mr Sainsbury also submitted that the Judge did not take account of mitigating factors, in particular that Mr Miller had himself reported the
incidents and that he had, subsequently to appearing in Court, completed the Family Court’s approved “Living Without Violence” programme. The report from the responsible counsellor concluded that Mr Miller had “participated fully in the programme. In my opinion, it is highly unlikely that Dylan would reoffend”. It is also to be noted that Mr Miller pleaded guilty. A guilty plea is acknowledged as reflecting an element of remorse.
[23] I acknowledge those are mitigating features which should properly be taken into account in assessing the gravity of the offending. To that extent, therefore, if the Judge did not take them into account, he would have assessed the gravity of Mr Miller’s offending as being higher than was called for. In my view, in this context it is not irrelevant that, when sentencing Mr Miller, the Judge limited Mr Miller’s penalty to an order to come up for sentence if called on.
[24] The last point for analysis is whether the Judge properly assessed the consequences of a conviction when he concluded that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”5
[25] When arguing that the Judge had erred in this assessment, Mr Sainsbury first argued that the Judge had approached the exercise in the wrong way. Mr Sainsbury pointed to the following reasoning of the Judge:
Significantly, however, all of these perceived consequences, apart from the general stigma, are at this point conjectural. In other words there is no evidence of any consequence beyond the hypothetical or potential at this stage.
[26] Mr Sainsbury submitted that the error in that approach was reflected in the
Court of Appeal’s comments in DC (CA47/2013) v R as follows:6
[43] With respect, we consider that the Judge’s approach was wrong. The sentencing Judge must decide, not to any legal standard of proof, what the consequences of the offending will be. The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied that there is a real and appreciable risk of such consequences.
5 Sentencing Act 2002, s 107.
6 DC (CA47/2013) v R [2013] NZCA 255 (footnotes omitted).
[27] What the exercise requires, therefore, is an assessment or prediction of potential consequences. The test is whether there is a real and appreciable risk of adverse consequences occurring.
[28] Against that background, Mr Sainsbury pointed to the following adverse consequences:
(a) First, he said that the stigmatising effect of a conviction was not to be downplayed. He argued that the Judge had not given enough weight to that consideration. I do not accept that proposition. The Judge clearly accepted the significance of the general stigmatising effect, characterising it as “pretty much unarguable”.
(b)He argued that a conviction would have adverse consequences on Mr Miller’s employment prospects: in particular, Mr Miller has studied law, and the argument was that a conviction could adversely impact on his prospects in that area. A similarly general submission was made regarding the possible adverse impacts on overseas travel. That general submission was particularised on the basis that Mrs Miller has, in the past, worked extensively outside New Zealand. Were she to do so again, Mr Miller’s ability to maintain his relationship with their two children would be adversely affected if his ability to travel was constrained because of a conviction. I acknowledge that the Judge did not appear to consider possible adverse consequences in these areas at all. Having done so, however, I am not persuaded that they are of any particular weight in the balancing exercise called for by s 107. Were Mr Miller to seek professional employment as a lawyer, the Law Society would be involved in his admission. The Law Society undertakes a reasonably sophisticated process of assessing the fitness of candidates for entry to the legal profession. In that context, it cannot be assumed that these offences would, in fact, be an impediment at the end of the day. The assessment of their significance is, as the courts have often commented, best left to the professional body concerned. The concern with travel was in no way particularised. Moreover,
Mrs Miller has stated that she will no longer be working overseas and has, in fact, a permanent position in Wellington with a government department. I attribute very little significance to these matters.
(c) Finally, Mr Sainsbury pointed to the fact that a conviction would, in terms of the Criminal Records (Clean Slate) Act 2004, reactivate Mr Miller’s three historic driving convictions. I accept that is a consequence. However, when reactivated those offences will be, by any assessment, themselves historic and, except perhaps in the context of employment involving driving, of little relevance now. The adverse effect of that reactivation is, similarly, limited.
[29] The Judge was right to conclude that the adverse consequences of a conviction for this offending were not out of all proportion to its gravity. To answer that question, I must make that assessment myself. If I disagree with the Judge, then in terms of the Supreme Court’s decision in Austin, Nichols & Co Inc v Stitching Lodestar,7 I am to allow this appeal.
[30] In my view, the relevant considerations are as follows:
(a) As Mr Sainsbury accepted, and as the courts have made clear, all breaches of protection orders are to be taken seriously. Whilst the Judge may have over-emphasised the “public” nature of this incident, and the associated embarrassment and distress caused, the fact remains that Mr Miller did verbally and forcefully abuse his wife, in the presence of their children, and that he compounded that harm with the messages he subsequently sent. Whereas his behaviour in Leeds Street was impulsive, sending the messages was deliberate. Further, while the content of the messages was not especially objectionable, it was not anodyne: for example, “[t]hank you for everything you have done to be unreasonable”, and “the kids will remember all this”. An assessment of the gravity of the offending also involves an acceptance of the
mitigating factors of self-reporting, participation in a violence
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
management programme, and a guilty plea. Having regard to all of those factors, I am left agreeing with the Judge’s assessment that this offending was “towards the bottom end” of protection order breaches.
(b)Turning to adverse consequences, and taking the predictive approach of “real and appreciable risk”, I think the relevant adverse consequences here are those of general stigma and the reactivation of past offences. I am not persuaded, as I have explained, that much weight can be placed on the potential impacts to employment and on travel prospects.
(c) The balancing analysis requires that consequences are “out of all proportion” to the gravity of offending. It is not just that they are out of proportion. I think the statutory words “out of all proportion” emphasise the extent of the mismatch or the disproportion that needs to be identified. Although at the low end of the scale of offending for a protection order breach, Mr Miller’s behaviour by my assessment involved reasonably aggressive verbal abuse and, significantly for me, took place in the presence of the couple’s children. As I have said, the subsequent messages do compound that behaviour. On balance, I am not able to conclude that the adverse consequences I have identified are
out of all proportion with the gravity of that offending.
Result
[31] I therefore dismiss the appeal against the District Court Judge’s decision not
to discharge Mr Miller without conviction.
Clifford J
Solicitors:
N J Sainsbury, Barrister, Wellington
Luke Cunningham & Clere, Crown Solicitors, Wellington
1
0