Mitchell v Police

[2020] NZHC 440

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000512

[2020] NZHC 440

IN THE MATTER

of an appeal against conviction

UNDER

the Criminal Procedure Act 2011, ss 229 and 244

BETWEEN

SARAH-JANE MITCHELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 February 2020 (Further submissions received on 20 and

28 February 2020)

Appearances:

S Moore for the Appellant

K Fitzgibbon for the Respondent

Judgment:

9 March 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 9 March 2020 at 2.00 p.m.

Registrar/Deputy Registrar

……………………………………

Solicitors:Meredith Connell (Office of the Crown Solicitor), Auckland for the Respondent Ben Langdon, Auckland, for the Appellant

Counsel:            S Moore, Auckland, for the Appellant

MITCHELL v NZ POLICE [2020] NZHC 440 [9 March 2020]

[1]    On 13 November 2018, Sarah-Jane Francis Mitchell pleaded guilty to one charge of wilful damage. On 29 March 2019, she pleaded guilty to one charge of assault arising out of the same incident.

[2]    On 1 November 2019, Judge J C Down declined Ms Mitchell’s application for a discharge without conviction.  On  the  charge  of  assault,  the  Judge  convicted Ms Mitchell and ordered her to pay emotional harm reparation of $1,000 and reparation of $2,196 for damage to a television set. On the charge of wilful damage, he convicted and sentenced Ms Mitchell to 40 hours’ community work.

[3]    Ms Mitchell now appeals against the decision of Judge Down to refuse a discharge without conviction.

Factual background

[4]    At about 10.00 am on Sunday, 7 October 2018, the appellant went to a Birkdale address, being the residential address of Mr J, who is described in the agreed summary of facts as the appellant’s ex-partner. He was present at the address together with a female friend, who was the victim of the assault.

[5]    The appellant entered the property and approached Mr J  and the victim in  Mr J’s bedroom. The appellant intentionally scratched the victim and pulled her hair. On leaving the property she knocked the television set in the lounge, causing damage to the screen. She also picked up an empty alcohol glass bottle and threw it in the direction of Mr J. The bottle missed him and hit the front door, causing a hole in the glass panel. The appellant then left the scene in her vehicle. The victim received multiple deep scratches to the left side of her body and scratches on her back.

District Court decision

[6]    At the outset of his decision,1 the Judge commented that there was some discussion as to the precise terms of the summary of facts and what could properly be inferred from the summary. He noted that, quite properly, counsel for the appellant

1      Police v Mitchell [2019] NZDC 21792.

invited the Court to adhere strictly to the agreed summary of facts and not go outside of it or draw inferences that were improper.

[7]    The Judge recorded counsel’s instructions that, although the agreed summary of facts referred to Mr J as being the appellant’s ex-partner, the relationship between the two of them was still on-going. He therefore invited the Court to conclude that finding another woman in Mr J’s bed was not only shocking, but was what led to the appellant’s behaviour on that day and should be seen in that light.

[8]    The Judge noted that the agreed summary of facts referred to Mr J as being the appellant’s ex-partner. This suggested to the Judge that either the relationship was completely over or was in a very bad state at the time.

[9]    The Judge also noted the inference that the prosecution asked him to draw that the appellant entered into the address uninvited. The Judge thought that that could properly be inferred from the summary of facts.

[10]   The Judge then assessed the overall gravity of the offending as being low to moderate. He noted that the appellant was a woman of previous good character and had on a voluntary basis attended a Living Without Violence 15-week programme called Women’s Respect Group. She had also made a voluntary donation of $1,000 to that organisation.

[11]   Taking those matters into consideration, the Judge came to the conclusion that this type of offending was unlikely to occur again and that she had reduced somewhat her culpability by recognising that her conduct was unlawful. The Judge was satisfied she was remorseful.

[12]   The Judge then referred to information in the appellant’s affidavit about the violent nature of the relationship between her and Mr J and how that affected her judgment on that day. He noted that that did not form part of the summary of facts and was not relevant to the way that she conducted herself towards the victim of the assault. He therefore put those matters to one side.

[13]   The Judge then turned to make an assessment of the consequences of conviction. There were two bases on which the appellant’s counsel argued that conviction would be significant in the appellant’s case and bring about consequences that may unfairly and disproportionately affect her future. First, as they related to her career and, secondly, the prospects of being able to travel abroad in the future.

[14]   The Judge noted that the appellant had completed the first year of a law degree, at which point she left her studies to care for her disabled brother. She also assisted her mother to care for her father, who has also been diagnosed with dementia. The Judge noted that the appellant had then studied for, and obtained qualifications relating to real estate practice, which was the family business. She was at a point where she was qualified and able to apply for a practising certificate. In order to get a practising certificate, she must prove that she is a fit and proper person.

[15]   The Judge noted that no evidence had been provided of the likely consequences of those convictions on whether she would be able to practice. He said he could draw no conclusions because it is not possible in individual cases to determine the approach that might be taken by a professional body.

[16]   The Judge also came to the conclusion that the further study and practise of law by the appellant was too remote. There would be many more years of study to be undertaken before she could even apply to have a practising certificate. The Judge thought that aspect of her future was so uncertain and remote that he should also put it to one side.

[17]   The other consequence relied upon was that family holidays usually entailed travel abroad, but the Judge stated he simply did not have enough information to be satisfied that the ground was sufficient to provide a likely consequence of conviction. A further matter relied upon by the appellant was her desire to enter beauty pageants abroad. The Judge said it was hard to know how to view that. It did not seem to be source of income, but there were hurdles which seemed to the Judge to be easily overcome.

[18]   The Judge came to the conclusion that consequences of conviction were very modest and did not far outweigh the gravity of the offending. He, therefore, concluded that the test in s 107 of the Criminal Procedure Act was not met and he had no discretion to discharge the appellant without conviction.

Appellant submissions

[19]   The appellant submits that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. In particular, the Judge was wrong to conclude that:

(a)At the time of the incident, the relationship between the appellant and Mr J was either completely over or was in a very bad state; and

(b)The appellant entered the property uninvited.

[20]   As to the Judge’s finding that the relationship between the appellant and her ex-partner was completely over or was in a very bad state at the time, the appellant submits that the Judge should not have disregarded advice from counsel that the description of the relationship in the summary as former partners was disputed and the appellant’s sworn evidence that she and Mr J were in a romantic relationship at the time of the incident. He also went beyond the agreed summary of facts to draw adverse inferences and considered a witness statement (that of Mr J), that was not properly adduced as evidence in accordance with s 77 of the Evidence Act 2006.

[21]   As to the appellant’s entry on to the property, the appellant submits that the issue was not addressed in the agreed summary of facts and no evidence from Mr J was adduced on this point or any other. Therefore, the conclusion reached by the Judge that the appellant’s entry on to the property was uninvited should not have been drawn by him.

[22]   In addition, the appellant submits that the Judge erred in finding that the consequences of the convictions were very modest and did not far outweigh the gravity of the offending and that, accordingly, the test in s 107 of the Sentencing Act was not met. The appellant submits that in making these findings, the Judge:

(a)Failed to take into account the appellant’s youth;

(b)Failed to adequately consider the adverse and disproportionate impact of the convictions on the appellant’s prospective employment. In particular, the Judge failed to address the likelihood that the convictions would either operate as an immediately disqualifying factor to employment in the appellant’s chosen profession or elicit an enquiry with an attendant obligation to explain; and

(c)Failed to impose, in accordance with s 8 of the Sentencing Act, the least restrictive outcome appropriate in the circumstances.

[23]   The appellant was only 24 at the time of the offending. Counsel submits that the offending itself is consistent with the impulsive and gut instinct behaviour of a young person. Counsel further submits that this, coupled with the appellant’s evidence that she was in a heightened state of anxiety at the time due to stress of the nature of her relationship with Mr J, supports a conclusion that her offending was uncharacteristic and a one-off.

[24]   As to the adverse and disproportionate impact of the convictions on the appellant’s prospective employment, counsel submits that it is only necessary to show that there is a “real and appreciable risk” that a conviction will impact on a defendant’s ability to obtain or keep employment. The appellant has the qualifications to apply for a real estate agent’s licence. She does, however, have to satisfy the Real Estate Authority that she is a fit and proper person to hold a licence. Some convictions, such as convictions for any crime involving dishonesty, are immediately disqualifying. The appellant is young and has no established career. She has never held a licence and no professional reputation to support her application for a licence. Counsel therefore submits that there is a real and appreciable risk that the convictions will undermine her ability to be considered a fit and proper person and practice as a real estate agent in the future.

[25]   Finally, counsel submits that the least restrictive outcome appropriate in the circumstances is a discharge without conviction. The appellant’s age, the nature and

impact of her relationship with Mr J, her otherwise good character, her remorse, her early guilty plea, and the real and appreciable risk of a detrimental effect on her career prospects render the conviction out of all proportion to the offending, thereby satisfying the s 107 test.

Discussion

Did the Judge err in his assessment of the evidence?

[26]   The appellant submits that the Judge erred in his assessment of the evidence in two respects to such an extent that a miscarriage of justice has occurred.

[27]   First, as to whether the appellant and Mr J were in a relationship at the time, I am not satisfied that a miscarriage of justice arises from the Judge’s comment that the relationship was either over or in a very bad state. The appellant submits that the Judge improperly relied on Mr J’s witness statement stating that he and the appellant were ex-partners. However, the Judge clearly states that it is not possible for him to be certain of the status of the relationship.2 But the agreed summary of facts refers to the appellant and Mr J as ex-partners. So, relying on the principle that he must sentence on the basis of the agreed summary of facts, the Judge continued on the basis that they were ex-partners.3 The Judge acknowledged the appellant’s position at the hearing that the relationship was “still ongoing”.4 However, if that was the case, the appellant should have raised the issue when formulating the agreed summary of facts.5 That does not appear to have been done given that the agreed summary of facts records that they were ex-partners.

[28]   Secondly, as to whether the appellant entered the property uninvited, the issue is, in my view, ultimately immaterial to the appellant’s culpability. Indeed, the Judge commented that, “I am not suggesting that this was anything approaching an unlawful entry, as would be found in a burglary”.6 He did not attach any other weight to the

2 At [8].

3      Criminal Procedure Rules 2011, r 5A.1 and 5A.6(1)(c).

4      Police v Mitchell, above n 1, at [6].

5      Criminal Procedure Rules 2011, r 5A.1(1)(b).

6      Police v Mitchell, above n 1, at [11].

inference that the appellant had entered the property uninvited. Therefore, it cannot be said that the drawing of such an inference amounted to a miscarriage of justice.

Did the Judge err in his assessment of the consequences of the conviction?

[29]   The appellant submits that the Judge erred in finding that the consequences of the convictions were very modest and did not far outweigh the gravity of the offending and that, accordingly, the test in s 107 of the Sentencing Act was not met.

[30]   First, as to youth, the appellant was 24 years old at the time of the offending. The appellant submits that her offending was driven by “impulsive and gut instinct behaviour” that often colours youth offending. However, the Judge did not fail to take the appellant’s youth into account. Indeed, he gave credit for the appellant’s “relatively young age”.7 Accordingly, the Judge did not err on this point.

[31]   Secondly, as to prospective employment, the appellant submits that there is a “real and appreciable risk” that a conviction would hinder her future professional aspirations as a real estate agent and/or lawyer.

[32]   There are a number of relevant considerations.8 On the one hand, the Court recognises that a conviction carries a social stigma and may affect a person’s career.9 This is particularly so for a young offender who does not have a “foothold in a career”; the risk that a conviction may be permanently damaging must be recognised.10

[33]   On the other hand, the Court must also consider the employer’s right to know and should be hesitant to usurp the role of a particular employer or registration authority to decide the significance of a particular conviction.11 The employer’s right to know carries particular weight where there is an independent statutory or other registration agency charged with assessing a person’s character or suitability for a particular career.12 The extent to which the employer or registration agency is likely

7      At [18] and [33].

8      See Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA107.03].

9      DC (CA47/13) v R [2013] NZCA 255.

10     Walker v Police [2016] NZHC 1450 at [22].

11     See, for example, Maraj v Police [2016] NZCA 279 at [36].

12     See Stewart v Police [2015] NZHC 165 at [30]–[31].

to look behind the conviction and consider the person’s merit is also relevant. The case for a discharge will not be strong where the details of the offending will be known to and closely examined by the relevant employer or professional body in any event.13 In contrast, there will be a stronger case for discharge if a conviction will lead to immediate rejection without further inquiry, for example, at the short-listing stage.14

[34]   The appellant has the qualifications to apply for a real estate agent’s licence. However, she must satisfy the Real Estate Authority (REA) that she is a “fit and proper person” to hold a licence. The Judge noted that the appellant had not adduced any specific evidence as to the particular rules or standards that the REA must apply in assessing a “fit and proper person”.15 The “Required criteria and qualifications to work in real estate” document adduced simply states, “It’s up to you to satisfy the REA Registrar that you are fit and proper”. This appears to be a case where the REA is charged with assessing an applicant’s suitability and it is not for the Court to usurp that function. There is no suggestion that the REA will “not look behind” the conviction or that a conviction is automatically disqualifying. I note that convictions relating to any crime involving dishonesty are automatically disqualifying, but the appellant’s conviction does not involve dishonesty.

[35]   Section 43(3) of the Real Estate Agents Act 2008 provides that if an application for an agent’s licence is declined, the Registrar must “notify the applicant of the Registrar’s decision and reasons for it” and “notify the applicant of his or her right of review by the Tribunal against the decision”. That suggests that there is some avenue for an applicant, such as Ms Mitchell, to explain the circumstances of her conviction.

[36]   However, the appellant says that, in explaining the circumstances to REA, she would have to divulge personal trauma. She says her relationship with Mr J was traumatic and often violent. She relies on the case of HM v Police, where a discharge without conviction was granted due to concerns that, in explaining the conviction to the REA, the applicant in that case would need to divulge a personal trauma that might

13     See Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.

14     See Tahitahi v Police [2012] NZHC 663; Brown v R [2012] NZCA 197 at [31]; Edwards v R [2015] NZCA 583 at [18]; and Walker v Police, above n 10, at [22].

15     Police v Mitchell, above n 1, at [28].

ordinarily attract a reasonable expectation of privacy.16 There, the applicant suffered from PTSD arising from sexual assault. One evening, she was behaving grossly intoxicated and erratically and required medical assistance. The Police responded, the applicant resisted and assaulted the officer. In my view, the circumstances of the instant case are quite different to those in HM v Police. Putting to one side the veracity of the appellant’s claims regarding her relationship with Mr J, significantly, there is no suggestion that the victim assaulted or threatened the appellant. Thus, any traumatic relationship with Mr J cannot adequately explain the assault against the victim.

[37]   Whilst I accept that the appellant is a young offender with no foothold in a career, the appellant has not adduced any evidence of a “real and appreciable risk” that the conviction would be detrimental to her future career as a real estate agent. There should generally be evidence or some supporting material beyond a mere assertion as to the likely consequences on employment, such as a letter from an employer or established member of the profession.17 No such material is before the Court.

[38]   The same goes for the appellant’s prospective legal career. The appellant has completed her first year of a law degree but, as the Judge noted, the further study and practice of law is too remote.18 The Judge further commented that:19

It is proper to note that  there  are  a  number  of  people  working in  both law and real estate, who have been able to satisfy their professional bodies that, despite convictions on relatively minor matters, they are nevertheless fit and proper persons for practice.

[39]Echoing the words of Hammond J in Liang v Police, I consider that:20

[As] there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is able to make a decision with the benefit of full disclosure after the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor — it is merely a factor to be considered in the balancing exercise.

16     HM v Police [2015] NZHC 1910.

17     Police v M [2013] NZHC 1101 at [58]–[62]; and Simmonds v Police [2014] NZHC 2488 at [34].

18     Police v Mitchell, above n 1, at [26].

19 At [25].

20     Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].

[40]   Thirdly, on a related note, the appellant initially submitted that convictions would hinder her ability to travel internationally to complete in international beauty pageants. The appellant no longer advances this ground, but a discharge on grounds that travel will be impeded is unlikely to be successful where future travel is speculative and not yet planned, as is the case here.21 Furthermore, where foreign travel difficulties are relied on, there should be detailed and reliable evidence as to the law and practice of the jurisdiction — no such evidence is presently before the Court.22

[41]   For the above reasons, the Judge did not err in his assessment of the consequences of convictions and subsequent assessment of proportionality. Whilst I have some sympathy for the appellant’s circumstances, I do not consider that the consequences of conviction are “out of all proportion” to the gravity of the offending.

Result

[42]The appeal is dismissed.

Woolford J

21     Brunton v Police [2012] NZHC 1197 at [16]; and Marszolek v Police [2015] NZHC 2858 at [35].

22     Edwards v R, above n 14, at [25]–[26]; Brunton v Police, above n 21, at [16]; and Police v M, above n 17, at [55].