Moss v Police
[2020] NZHC 1065
•21 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000051
[2020] NZHC 1065
BETWEEN JONATHAN DUNBIER MOSS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 May 2020 Appearances:
S Bonnar QC for the Appellant J Herring for the Respondent
Judgment:
21 May 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 21 May 2020 at 11.30 am
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland Counsel: S Bonnar QC, Auckland
MOSS v POLICE [2020] NZHC 1065 [21 May 2020]
Introduction
[1] The appellant, Jonathan Moss, pleaded guilty in the Auckland District Court to two charges of criminal harassment.1
[2] On 14 February 2020, Judge Glubb refused Mr Moss’ application for a discharge without conviction. He convicted Mr Moss and sentenced him to eight months’ supervision.2 A protection order was issued in favour of the victim.3
[3] Mr Moss appeals that decision. He claims that the Judge was wrong when he refused to grant a discharge without conviction and, in any event, the sentence is manifestly excessive.
[4] The Police oppose the application on the grounds that there was no error on the part of the sentencing Judge who was correct to refuse the application and impose a sentence which the Police submit was within the available range and not manifestly excessive.
Factual background
[5] The factual background was set out fully by the Judge in his sentencing notes which I reproduce in relevant part below:
[1] … The facts are that you and the victim in this matter were in a relationship for about 12 months and it ended in December 2018. Due to ongoing issues after the separation you were served with a criminal harassment warning letter which listed the types of behaviour that you were not to engage in. That letter was served on you on 3 February 2019 and you acknowledged that you understood the content of that letter. …
[2] At about 4.00 pm on 19 February 2019, you were in your Subaru car near the Auckland University. You made several requests to the victim in this matter via instant messaging on the Instagram Smart Phone application, offering her a ride home. She declined these offers and took the bus to get home. You drove your car to the bus stop where you knew that she would be getting off the bus and you parked nearby.
[3] She told you to leave and entered her home. She was then subjected to approximately 70 phone calls from you that evening. In explanation you
1 Harassment Act 1997, s 8.
2 Police v Moss [2020] NZDC 2548.
3 Sentencing Act 2002, s 123B.
said that you were aware of the criminal harassment warning and you admitted using multiple Instagram accounts to send the victim instant messages and that you had made approximately 70 calls to her.
[4] Subsequent to that offending, you appeared before the Court on 21 February 2019 at which point you were released on bail. One of the conditions was not to associate with the complainant nor have contact with her. Then between the dates of 13 April and 17 June 2019, you contacted the victim again via text message and cellphone calls. You sent her approximately 300 text messages and you made approximately 120 phone calls to her during that period. She only responded to a fraction of those attempted contacts. Due to the lack of replies from the victim, you then made contact with a number of her friends.
[5] On 31 May you went to her home in Remuera. You informed her by text that you were parked in the driveway and you wanted to come inside. At no point did she say you could do that. You then entered the property passed (sic) the closed gates and accessed the victim’s bedroom via an external access door. Once there you remained for approximately 40 minutes until you eventually left after multiple pleas from her to do so.
[6] Then on 14 June 2019, she was at the retail store that she was working in at the time. At about 12.00 pm that day you came into the store, approached her when she was behind the counter, you placed an envelope containing a handwritten card and a cupcake on the counter as a gift to her. You declined to comment on it when you were spoken to by the police in relation to that.
Approach on appeal
[6] An appeal against a refusal to grant a discharge without conviction is by way of rehearing. It requires the Court on appeal to make a fresh assessment in accordance with its own opinion.4
The legal test
[7] Section 106 of the Sentencing Act 2002 (“the Act”) gives the Court a discretion to discharge an offender without conviction. This discretion is subject to the test in s 107 being satisfied. Section 107 provides:
107 Guidance for discharge without conviction
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 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
[8] In assessing the gravity of the offence, the Court is not restricted to an assessment of the conduct that gives rise to the charge. In R v Hughes, the Court of Appeal approved the comments of Miller J in Delaney v Police where the Judge said:5
[29] … I consider that “the gravity of the offence” should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already suffered by way of reparation, community work, or publicity.
[9] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appeal in Taulapapa v R:6
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.
(citations omitted)
[10]A three step approach is thus required by the Court which must:
(a)determine the gravity of the offence, having regard to both the aggravating and mitigating factors of the offending and the offender;
(b)determine the direct and indirect consequences of conviction; and
(c)determine whether those consequences are out of all proportion to the gravity of the offence.
5 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29] as cited in R v Hughes
[2008] NZCA 546, [2009] 3 NZLR 222 at [27].
6 Taulapapa v R [2018] NZCA 414.
[11] Only if the threshold in (c) above is met can the Court move to consider the residual discretion under s 106.7 There must be a “real and appreciable” risk that any given consequence will happen.8 This standard recognises that the Court is assessing the likelihood of something that may happen in the future.9 Once the s 107 test is satisfied this will normally result in a discharge.
District Court decision
[12] After reciting the facts set out above, the Judge assessed the gravity of the offending having regard to both the aggravating and mitigating factors of the offending and Mr Moss personally.
[13] As for the aggravating factors he regarded “principal” amongst them was the degree of planning and premeditation involved. Mr Moss knew and appreciated he had been warned to keep away from the victim and yet, despite that, he continued to make contact with her.10
[14] The Judge acknowledged that the second set of offending occurred after the victim had approached Mr Moss at a concert, but the Judge commented that he did not regard this as mitigating what subsequently occurred.11 He pointed to the repeated and persistent nature of the offending and the impact on the victim. He quoted passages from the two victim impact statements.12
[15] Adding to the aggravating factors, the Judge referred to Mr Moss’ previous conviction history, which included four convictions for excess breath alcohol and five convictions for either driving whilst disqualified or suspended, most recently in 2015. He also mentioned that while Mr Moss was on bail for the earlier offending, he had re-offended.13
7 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and Taulapapa v R, above n 6,
at [22].
8 DC (CA47/2013) v R [2013] NZCA 255 at [43] and Taulapapa v R, above n 6, at [22].
9 Taulapapa v R, above n 6, at [22].
10 At [7].
11 At [8].
12 At [9]-[12].
13 At [15].
[16] The Judge then listed and discussed the mitigating factors advanced on Mr Moss’ behalf by Mr Bonnar QC.14 These included that guilty pleas were entered at the earliest opportunity; Mr Moss was having counselling and had completed the Living Without Violence Programme; his chronic but now diagnosed and treated mental health issues; that the complainant initiated contact at a concert before the second round of offending (which the Judge put to one side); Mr Moss’ evident remorse; and that based on the reports from Mr Hogg’s psychiatrist and psychologist, there did not seem to be a likelihood of a relapse at the moment.
[17] The Judge noted that Mr Moss had previously had the benefit of a s 106 discharge in 2013. He recorded Mr Bonnar’s submissions that at the time Mr Moss had recently been diagnosed with bipolar disorder and rather than having it properly treated, Mr Moss was self-medicating with alcohol and possibly the cannabis involved in the discharge.15 The Judge went on to say that the fact of the previous discharge and the fact of earlier convictions were not an absolute bar to a further discharge but “the bar does get raised somewhat”.16
[18] Weighing these factors together the Judge assessed the offending as moderate to serious but when the mitigating factors were taken into account the offending was in the low to moderate range.17
[19] The Judge then turned to consider the consequences of conviction. These included the likely adverse effect on Mr Moss’ mental health presentation and prognosis, his aspirations for a career in the law18 or as a chartered financial analyst and the barriers which a conviction might create. The Judge observed that there was no inevitability that convictions would operate as barriers to employment in those fields, noting that it will be for the regulatory arms of the respective professions to assess any application to practice against the factual backdrop and that the Court “should not presume to second guess any outcome”.19
14 At [19] and [20].
15 At [22].
16 At [23].
17 At [23].
18 He had recently completed his LLB/BCom.
19 At [32] and [33].
[20] The Judge also acknowledged Mr Bonnar’s submission that a conviction in the life of a young person has long lasting and ongoing consequences.20
[21] On the question of overseas travel the Judge noted Mr Moss’ aspiration to travel to the United Kingdom for his OE and the fact that he had been offered a promotion in his present employment which included the opportunity to travel to the United States for training within the next few months.
[22] The Judge accepted that while these convictions would require disclosure, Mr Moss already had previous convictions requiring disclosure. It was not the case that requests to travel would inevitably be rejected. He noted that it was not the Court’s role to effectively hide relevant factors from the appropriate authorities when they are giving consideration as to who they should admit at their borders. Again, it was a matter for those agencies to consider and not for the Court to second guess.21
[23] On the question of Mr Moss’ mental health issues, the Judge commended him for the progress he had made with the support of his family. Whilst acknowledging that the entry of a conviction might well bring an immediate sense of loss and disappointment which may cause some difficulty, the Judge noted that he was equally satisfied that Mr Moss’ illness appeared to be stabilised with the result that he continued to perform well.22
[24] The Judge then referred to Mr Moss’ previous 2013 discharge without conviction. While he again acknowledged that this did not exclude the possibility of a second discharge, particularly given the differing nature of the offending, he said he regarded it as a factor to be put in the balance albeit not of significant weight.23
[25] He also took into account Mr Moss’ previous convictions, noting Mr Bonnar’s submission that Mr Moss was a young man at the time and was, apparently, self- medicating. He noted there had been no issues since 2015.24
20 At [31].
21 At [35].
22 At [36].
23 At [37].
24 At [38].
[26] Taking all these matters into consideration the Judge was not satisfied that there was a real and appreciable risk of the identified consequences eventuating, adding that even had he been satisfied, the prior discharge and previous convictions counted against exercising that discretion. He observed it would be a rare application that will be granted against that background as this Court acknowledged in Hudson v Police.25
[27] In summary, having regard to his earlier assessment that the offending was in the low to moderate range of gravity, he was not satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence. He declined to grant the discharge.26
[28] He then proceeded to sentence Mr Moss, deciding that the appropriate sentence would be one of supervision which should be kept to the minimum. He set this at eight months with a condition that Mr Moss undertake and complete such treatment, counselling or programme as directed by the probation officer.27
[29] Finally, the Judge granted the victim’s application for a protection order which he noted was unopposed.28
Gravity of Mr Moss’ offending
[30] Mr Bonnar lists eight errors which he submits were made by the District Court Judge. He submits the Judge:
(a)failed, in assessing the gravity of the offending, to have regard to the seriousness of the offence by comparison with other offences, as indicated by the maximum penalty prescribed for the offence (two years’ imprisonment);
25 Hudson v Police CRI-2011-404-229 HC Auckland, 23 October 2012 at [37] per Duffy J.
26 At [40].
27 At [43].
28 At [44].
(b)failed to give any or adequate weight to the fact that the appellant’s offending was directly connected to his (then) unmedicated mental illness (bipolar disorder);
(c)having regard to the causative effect of Mr Moss’ mental disorder, erred in giving undue weight to “planning and premeditation”, the “repeat nature of the offending” and its “persistence” as aggravating features of the offending;
(d)erred in concluding that Mr Moss’ previous convictions, for unrelated driving offences, was an aggravating feature personal to Mr Moss (as opposed to a neutral factor or the absence of a potential mitigating factor, such as previous good character);
(e)erred in concluding that the above convictions and the previous discharge “raised the bar” in assessing the application;
(f)erred in disregarding the fact that the complainant initiated further contact with Mr Moss prior to the commission of the second offence. The Judge incorrectly characterised (and then disregarded) this factor as not being a mitigating feature of the offending. (Mr Bonnar submits that this was simply a fact which had to be considered as part of the overall assessment of the gravity of the offence);
(g)similarly erred in disregarding the fact that there were no threats of violence in the communications which formed the subject of the harassment charges or, it appeared, fear of physical violence on the part of the complainant. (Mr Bonnar submits this was a fact which had to be weighed in the overall assessment of the gravity of the offence);
(h)failed to give adequate weight to the steps already taken by Mr Moss to address the causes of his offending and to reduce the likelihood of any future relapse or re-offending (his on-going counselling and completion of the Man Alive Living without Violence programme); and
(i)failed to take into account Mr Moss’ co-operation with police, and his genuine remorse.
[31] Mr Bonnar submits that as a result of the alleged errors, the Judge erred in assessing the overall gravity of the offending as “low to moderate”. Of those alleged errors, Mr Bonnar developed two in his submissions: the effect of Mr Moss’ mental health on the offending and the emphasis the Judge placed on Mr Moss’ previous convictions and previous discharge.
Mental health
[32] As well as being referred to by the Judge as a mitigating factor Mr Moss’ mental health also reaches into a number of what were considered by the Judge to be aggravating factors.
[33] The Court of Appeal has recognised that “mental disorder may mitigate moral fault and, accordingly, criminal culpability”.29 Such illnesses “impair the rational choice made to offend”.30
[34]In Orchard v R,31 the Court of Appeal confirmed:
[46] … Mental health issues may mitigate the offending, diminishing moral culpability for the offending, and thereby also diminishing deterrence, accountability and denunciation as sentencing concerns. The weight given to the consideration, for those purposes, will however depend on evidence supporting the view that the condition contributed causally to the offending.
…
(citation omitted)
[35] Mr Bonnar submits that the Judge failed to give any or adequate weight to the fact that Mr Moss’ offending was directly connected to his bipolar disorder.
29 Nelson v R [2014] NZCA 121 at [22], affirmed in Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629, at [50].
30 Zhang v R [2019] NZCA 519 at [138].
31 Orchard v R [2019] NZCA 529.
[36] For the Crown, Mr Herring submits that Judge Glubb did give weight to Mr Moss’ mental illness in assessing the mitigating features of the offending. Mr Herring refers to the following two paragraphs of the Judge’s decision:
[19] … Thirdly, I take account of the fact that you were suffering from an undiagnosed mental health issue, bipolar, and you have been receiving treatment and you were receiving treatment at the time of the second offence, having started earlier on. It seems that treatment is going well and the reports from the psychologist and also from a psychiatrist who was consulted are that there does not seem to be any likelihood of a relapse at the moment.
…
[29] … I note in the letter of Dr Armstrong [the psychiatrist], where he opines that it is likely that your active and untreated illness contributed to your behaviour and I factor that in. …
[37] In his affidavit, which was before the District Court Judge, Mr Moss explains that there is a history of mental illness in his family. His mother has bipolar disorder. Mr Moss says he was diagnosed with bipolar disorder in 2013 which causes him to experience dramatic mood swings as well as deep depressive episodes. Mr Moss said that in 2018, during his final year at university, his sister went through a series of major manic episodes which culminated in her undergoing residential treatment. He says this caused him considerable strain as he tried to support his sister as well as his mother on top of juggling his studies and his own bipolar disorder.
[38] Mr Moss says that he did not seek medical help during this period, instead relying heavily on his partner, the victim, for support. He says this reliance on the victim was in part the reason he was so devastated at their break-up in December 2018. The period of offending from February 2019 to June 2019 followed the relationship break up and Mr Moss describes his mental health at that time as “incredibly poor” and at “an all-time low”.
[39] The report of Dr Armstrong, a psychiatrist, dated 1 April 2019 was written as Mr Moss’ treating psychiatrist. Dr Armstrong confirms that he has treated Mr Moss since 2013 and has diagnosed him with Bipolar Affective Disorder Type 2. Dr Armstrong explains that as a result of Mr Moss’ concern about his behaviour towards the victim, he prescribed a mood stabilisation medication, Lamotrigine which Dr Armstrong said showed a good initial response. Dr Armstrong expresses the view
that Mr Moss’ behaviour in repetitively contacting the victim was likely partially related to his mental illness. Dr Armstrong expresses the opinion that people with mania or depression can have impulse control problems and act compulsively. Dr Armstrong states that it is also likely that Mr Moss’ active and untreated illness contributed to the behaviour which led to the charges against him.
[40] There is also a report dated 14 May 2019 from a psychologist, Ms Cullen. Mr Moss has been attending weekly therapy with her since the end of March 2019 after self-referring. She is of the view that in the context of compromised mental health, Mr Moss’ ability to manage his distress and regulate his emotion and behaviour was undermined. She refers to the emotional crisis Mr Moss had suffered and is of the opinion that was “central” to his harassment offence.
[41] It is clear from the reports of both Dr Armstrong and Ms Cullen that Mr Moss had commenced taking medication and attending therapy prior to the second set of offending (between 13 April and 17 June 2019) but I accept it was early days in relation to both medication and therapy.
[42] There is a second report from Ms Cullen dated 7 December 2019 which updates the first report. In the 7 December 2019 report, Ms Cullen refers to Mr Moss being unwell at the time of the offending.
[43] I accept on the evidence before the District Court that Mr Moss’ offending was inextricably linked to, and causally connected to, his bipolar disorder and related breakdown at the end of December 2018.
[44] This then leads on to some of the aggravating features identified by the Judge which I address next.
Planning and premeditation
[45] The Judge considered that principal amongst the aggravating factors was that there was a degree of planning and premeditation.32 The Judge stated, knowing he
32 At [7].
had been warned to keep away from the victim and even though the relationship had ended, Mr Moss continued to make contact with her. After referring to the second set of offending the Judge noted its repeated nature and Mr Moss’ persistence. It was not one-off contact.33
[46] Mr Bonnar submits that the “planning and premeditation”, “repeat nature of the offending” and its “persistence” should properly be seen as symptoms and features of Mr Moss’ underlying illness and should not be considered to increase the overall culpability of the offending. On the contrary, Mr Bonnar submits Mr Moss’ culpability is significantly reduced as the result of his illness.
[47] Mr Herring, for the respondent, submits while the repetitive phone calls and text messages may be partially related to Mr Moss’ mental illness, there is planning and premeditation involved in Mr Moss’ waiting for, and unsolicited visits to, the victim.
[48] I consider the Judge erred in finding that planning and premeditation, the repeat nature of the offending and its persistence were factors that aggravated the offending. I have already found that there is a causal link between the offending and Mr Moss’ bipolar disorder and the related emotional breakdown. There is also the evidence of Dr Armstrong that people with mania or depression can have impulse control problems and act compulsively. I consider that is relevant to both the texting and phone calls as well as Mr Moss’ waiting for the victim and making unsolicited visits to her home and her work place.
Previous convictions and previous discharge
[49] The Judge treated Mr Moss’ previous convictions as a matter that was an aggravating feature personal to Mr Moss and that those convictions and the previous discharge “raise the bar somewhat” when considering a further discharge.34
[50] Mr Bonnar submits that the previous offences would not have justified an uplift from any starting point on sentence and should therefore have properly been treated
33 At [8].
34 At [23].
as a neutral factor or as the absence of a potential mitigating factor (previous good character). He further submits that the Court erred in concluding that the previous driving related convictions and the previous discharge raised the bar in assessing the application.
[51] Mr Herring submits that Judge Glubb was entitled to give weight to Mr Moss’ conviction history and correctly did so. Mr Herring submits that the accumulation of a significant number of previous convictions for excess breath alcohol can be regarded as indicating a general disrespect for the law or contempt for authority which enhances Mr Moss’ culpability for the current offence.
[52]I do not accept that submission.
[53] Mr Moss’ previous convictions for driving related offences were committed between August 2012 and April 2015 when Mr Moss was aged from 17 to just over
20. Mr Moss’ uncontroverted evidence was that these offences were committed when, as a result of his mental health issues, he would attempt to “self-medicate” with alcohol. There have been no further driving-related offences since April 2015.
[54] In relation to the previous discharge, that was for unrelated offending in 2013 for possession of cannabis and resisting police when Mr Moss was 18 years of age.
[55] I accept Mr Bonnar’s submission that Mr Moss’ prior convictions should not have been seen as a personal aggravating factor. They were causally linked to his mental health.
[56] Turning to the previous discharge without conviction, in Police v McCabe,35 Roper J held that a discharge without conviction cannot be used for “general purposes”. That would amount to holding against a prisoner a previous charge on which he was deemed to have been acquitted.36 Roper J distinguished the situation where the previous discharge was for the same type of offending. In that case, the
35 Police v McCabe [1985] 1 NZLR 361.
36 At 364.
previous discharge “must count against a discharge on a later occasion”.37 I therefore accept Mr Bonnar’s submission that the Judge erred in concluding that the previous discharge “raised the bar”.
Offending while on bail
[57] The Judge took into account the repeat nature of the offending. Mr Herring submits that as Mr Moss was on bail for the first charge when he offended again in April and June the breach of bail conditions increases the gravity of the offending.
[58] While that would normally be so, I do not consider it is the case here. I again take into account Mr Moss’ bipolar disorder and his emotional distress and their causal link to the offending.
Overall analysis
[59] The Judge assessed the offending as moderate to serious before taking into account mitigating factors. In making the moderate to serious assessment the Judge included aggravating factors both of the offending and Mr Moss personally. However, as already discussed, all those factors, both in relation to the offending and Mr Moss personally can properly be seen as symptoms and features of Mr Moss’ underlying illness. They should not be taken into account to increase the overall culpability for the offending.
[60] In making the gravity assessment, account also needs to be taken of the fact that the offence itself carries a maximum penalty of two years’ imprisonment. In the overall scheme of criminal offences it is at the lower end. This was not a matter considered by the Judge.
[61] On the other hand, I do not consider the Judge erred in not taking into account the fact that there was no violence involved. The Judge adequately summarised the
37 Swami v Police [2012] NZHC 2725 citing Morgan v Police [need to get citation] and Police v McCabe, above n 35.
features of the offending and correctly said the fact that there was no threat or violence is the absence of an aggravating factor not a mitigating factor.38
[62] I do not overlook the effect on the victim. The Judge, as he was required to do, took this into account in assessing the seriousness of the offending. The Judge referred to the victim impact statements, saying:
[9] I have victim impact statements. In February she said that she has been really stressed out by your behaviour and despite telling you that she did not want to see you any more, you have kept contacting her in person and through messaging. She says:
This made me feel really on edge and worried about when I will see him next. I just want to move on with my life. I didn’t want to get the police involved but felt like he gave me no other choice.
[10]She wants a protection order.
[11] Then subsequently an update to that victim impact statement was provided after the most recent of the offending. That really highlights the impact that this has had on her. She acknowledges in there that she did speak with you at the concert. The next day she immediately feared that it was a mistake.
Then each day after he would find some reason to text me and I told him he could not be contacting me and then it just snowballed and he started calling me all the time and would get upset if I didn’t reply.
[63] I interpolate here to say that I do not accept Mr Bonnar’s submission that the Judge erred in putting to one side the fact that the victim initiated contact with Mr Moss prior to the commission of the second offence. She subsequently made it clear to Mr Moss that she did not want him to contact her.
[64]The Judge continued:
[12] Then she goes on to say on the last occasion and it was the day before you were to be in Court and you turned up with the cupcake. She says:
I feel terrible about not saying anything sooner and I don’t want to seem like I’m not taking this seriously because I am. I don’t want to ruin his life with a conviction but I also think he has absolutely no idea or care for the impact this has on me.
[13]She does not want you to do it anymore.
38 At [21].
[14] She also makes a note in here that she should mention that you text her asking for a victim impact statement saying that your lawyer had asked you to ask for it. She did not think that sounded right. She remains of the view that a protection order is sought, and I have an update of that on 7 October 2019 where it is still sought.
[65] Even taking into account the effect on the victim I consider the Judge overstated the seriousness of the offending by failing to take into account the effect of Mr Moss’ mental disorder on what the Judge considered were aggravating factors. Accordingly, before any consideration of mitigating factors of the offending and Mr Moss personally are taken into account, I would classify the offending at its highest as moderate.
[66] Then there are the mitigating factors both of the offending and Mr Moss. First, in relation to the offending, I have already expressed the view that the offending was causally linked to the defendant’s mental illness and his emotional breakdown. That reduces culpability.
[67] I do not accept Mr Bonnar’s submission that the Judge failed to give adequate weight to the steps taken by Mr Moss to address the causes of his offending and reduce the likelihood of it occurring in the future. They were part of the bundle of mitigating factors which the Judge considered operated in favour of reducing the gravity of the offending. I also do not accept Mr Bonnar’s submission that the Judge failed to take into account Mr Moss’ remorse.39 However, I do accept the Judge did not specifically mention Mr Moss’ early co-operation with the police.
[68]In terms of personal mitigating factors, I take account of the following:
(a)Co-operation with the police;
(b)Early guilty pleas;
(c)Genuine remorse;
39 See at [20].
(d)On-going treatment with his psychiatrist and counselling with a psychologist;
(e)Completion of the Man Alive Living Without Violence Programme; and
(f)By continuing with his treatment and counselling the likelihood of reoffending is reduced.
[69] When all those mitigating factors are taken into account I am satisfied that the gravity can properly be classified overall as being of low seriousness. I consider the Judge erred in finding it was low to moderate.
Direct and indirect consequences of conviction
The test
[70]The correct approach, set out in Iosefa v Police,40 is as follows:
[34] … [I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.
[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. …
Employment
[71]In his affidavit Mr Moss gives the following evidence:
(a)He is considering two potential career paths: practicing law and/or practicing as a chartered financial analyst (CFA). He had graduated with a LLB/BCom degree and had also completed the level 1 CFA exam;
40 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.
(b)He says he is concerned with the effect a conviction for criminal harassment would have on his admission to the legal profession; specifically that the New Zealand Law Society may not be satisfied that he is a fit and proper person for the purpose of admission. He says this would be devastating;
(c)As to working as a CFA Mr Moss says that when applying for Level 2 of the programme, he would need to declare any conviction punishable by one year or more in prison and in doing so may be ineligible for Level 2. He says he is therefore concerned that a conviction would render him unable to pursue a career as a CFA;
(d)He says the two professions are competitive, establishing a career is not easy and that most job applications would require disclosure of any convictions. He expresses his concern that a conviction for criminal harassment would limit his prospects and cause a barrier to potential employment; and
(e)Finally, Mr Moss says he has been given a verbal undertaking that there is an employment opportunity for him in a wealth management team at a named firm.
[72] In his affidavit Mr Moss’ father says that if his son were to be convicted he is sure that the HR Department at the named firm would rule out employment there.
[73] Mr Bonnar submits that the Judge erred when considering the feared employment consequences by holding that those consequences were not inevitable or would not result in a “complete bar” to admission/employment. Mr Bonnar says the Court was required to consider whether the consequences were “reasonably foreseeable”. He submits that, unlike drink driving convictions which have rarely resulted in practitioners being unable to practice,41 a criminal harassment conviction would be significantly more prejudicial for Mr Moss’ goal of practicing Law.
41 Citing Stanley v New Zealand Law Society [2019] NZCA 119 at [12].
[74] Additionally most job application processes in Mr Moss’ proposed area of work would require disclosure of any criminal convictions. A prospective employer is more likely to pass over an applicant whose past convictions include criminal harassment (particularly in the context of the current “Me Too” environment). Employers cannot be expected to inquire behind the convictions and into the circumstances that led to them.
[75] First, I do not accept that Judge Glubb applied the wrong test. The Judge’s statement that “there was no inevitably of a barrier to your employment” was a reference to a submission by the prosecution as follows:
[26] The prosecution in that regard submit that there is no inevitability of a barrier to your employment. They bring to the Court’s attention the appropriate assessment that is made by the Law Society in relation to admission to the bar and the legal profession and similarly the Institute of Chartered Financial Analysts will properly assess any application that is made against the backdrop. I also note in the paperwork that was put before me that what the Society of Chartered Financial Analysts note is that there is only a requirement for a disclosure of convictions punishable by more than a year if it is within two years.
[76] Then the Judge’s reference to a conviction not amounting to a complete bar was simply part of the Judge’s discussion on the way to his ultimate conclusion on the test to be applied. He said:
[32] What I recognise is that there are likely to be consequences. However, I am not satisfied that the conviction would amount to a complete bar to entry to either the professional body that is being considered, either the Law Society or for the Society of Financial Analysts. Certainly, the Law Society must assess any application that is received against the fit and proper person test. Experience has shown that they are the appropriate body to do so and this Court should not presume to second-guess any outcome. I also recognise it is appropriate that body is fully advised of the circumstances when it is considering applications.
[77] Then, when the Judge came to his conclusion, he applied the correct test, saying:
[39] In the end when I look at all matters in the round … I am not satisfied that there is a real and appreciable risk of these consequences eventuating. …
[78] I consider that was a correct finding on the evidence in relation to employment. The Judge correctly identified that entering into both the legal and financial analyst professions is at the discretion of the relevant governing bodies. While there may be difficulties for Mr Moss entering either of these two professions, the courts have generally concluded that something more than an impediment to continuing in a particular occupation is required for a s 106 application to be successful. In Laing v Police, Hammond J stated:42
[17] Whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction. Where the conviction will result in an absolute bar to the occupation that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If 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.
[79] In R v Taulapapa,43 the Court of Appeal set out a list of points about the consequences of conviction for young people emerging from what the Court described as an incomplete survey of the cases, noting that the points were not exhaustive. The points included that: conviction may affect a person’s career but that consequence must normally yield to the employer’s right to know. This principle extends to independent bodies charged with assessing the character or suitability for a particular career.44
[80] It would be open to Mr Moss to provide a copy of this judgment to the relevant governing bodies. It is apparent that the Court views the offending as being of low seriousness because of the causal link to Mr Moss’ mental health condition. There is also the unchallenged evidence of his father that Mr Moss has the normal potential in his career and life; that he is very popular with peers and adults who know him; and has done much in the preceding six months to atone and improve.
42 Laing v Police HC Wellington AP 39/02, 16 April 2003.
43 Taulapapa v R, above n 6, at [42].
44 Liang v Police, above n 42 at [17]; and Sterjov v Police [2015] NZHC 3103 at [30].
[81] Relevant to Mr Bonnar’s submission that, even assuming Mr Moss was admitted to either of these two professions, potential employers may not look behind the conviction, the Court of Appeal said in Taulapapa:
[42](b) The consequence may be severe if employers are unwilling to look behind the conviction to consider the person’s merits and that reaction is unfair to the offender in the sense that the conviction itself ought not exclude them from the career or job concerned. Such risk may arise where the conviction speaks to character or records a serious offence but does not fairly reflect the offender’s character or culpability. Theft may be an example of an offence that may lead employers to reject an applicant without further inquiry.
(citations omitted)
[82]However, in the earlier case of Edwards v R, the Court of Appeal said:45
[18] We do accept that some employers may not be prepared to look behind the bare fact of a conviction to read what the Court’s had to say about its circumstances and mitigating factors, but we are not prepared to assume that all or even most will behave in that way, especially where the offender is generally a person of good character, as in this case.
[83] It would similarly be open to Mr Moss to provide a copy of this judgment to a prospective employer having gained admission to the relevant profession.
[84] Finally, there is the evidence of Mr Moss that he has been given a verbal undertaking of an employment opportunity and the associated evidence of his father. What Mr Moss senior says is as follows:
My immediate colleagues have spent time with Jono discussing travel and careers. They rate him highly and have said that once he has completed his travel and is ready to settle into a career, they will offer him a job as a Wealth Management Advisor trainee. If he were to be convicted of this offence I am sure that the HR here … would rule that out.
[85] Is this enough to establish a real and appreciable risk overall in relation to employment? I do not consider it is. Mr Moss has not yet settled on a career path, let alone any particular employer. He is considering one or other of two possible career paths. The reservations attributed to “HR” are speculative and it seems that those at the named firm who know him would be happy to employ him.
45 Edwards v R [2015] NACA 583 at [18].
[86] I am not satisfied that on the evidence that was before the Court there is a real and appreciable risk that Mr Moss would be denied entry into the two professions he is presently considering nor that a potential employer would not look behind the convictions for criminal harassment.
Travel
[87]Mr Moss says in his affidavit that:
(a)He has ambitions to live and work in the United Kingdom and will require a visa to do so; and
(b)He has recently received a promotion in his current employment. As part of that offer the employer proposes a trip to the United States for training to develop Mr Moss’ sales skills.
[88] That trip was to occur this year. It has now been postponed and is proposed for 2021.
[89] Mr Bonnar submits first that the District Court Judge applied an incorrect test stating that it was “not inevitable” that any application by Mr Moss for visas to travel would be rejected; secondly that the Court took into account an irrelevant consideration, namely whether it was “[the] Court’s role to effectively hide relevant factors from appropriate authorities when they are giving proper consideration to who they should admit to their countries”; and, in any event, on the evidence there was a real and appreciable risk that Mr Moss may be refused entry into the UK or the USA because of a conviction for criminal harassment.
[90] First, I do not accept Mr Bonnar’s submission that the Judge applied an incorrect test. The Judge’s comments regarding the inevitability of a visa application being rejected simply formed part of the Judge’s discussion on the way to the final application of the test. The Judge said:
[34] In terms of travel it is accepted that a conviction must be disclosed but of course, you already have a number of convictions which will need to be disclosed in the first place and having done so, it is not inevitable in
my assessment that the application would be rejected and more there is essentially no evidence put before this Court to support the submission that it would inevitably be rejected.
[91] However, when the Judge came to apply the test, he said (as already noted at [77]):
[39] In the end when I look at all matters in the round … I am not satisfied that there is a real and appreciable risk of these consequences eventuating.
[92] In any event I consider the Judge was correct to conclude that Mr Moss had not established that there was a real and appreciable risk he would not be able to obtain a visa to travel to either the United States or United Kingdom.
[93] As the Judge said, Mr Moss already has a number of convictions which will need to be disclosed in any event. It appeared to be accepted in the District Court by Mr Moss that the offence of criminal harassment is not one which results in automatic exclusion. Mr Moss will simply need to go through a visa process. Even if that is lengthy and more difficult than it would have been had Mr Moss not been convicted, that is not the test. The evidence is insufficient to satisfy me that there is a real and appreciable risk that Mr Moss will be denied a visa to enter the United Kingdom or the United States. The Judge did not err in his finding in relation to travel.
General effect of convictions on young offenders
[94] Mr Bonnar submits that although the Judge noted his submissions on this issue, he did not address the issue further in the judgment. However, the District Court Judge did say that he readily recognised that a conviction in the life of a young person has long-lasting and on-going consequences. It therefore cannot be said that counsel’s submission was overlooked. Any stigma is an ordinary consequence of conviction for a young person.46
[95] Further, Mr Moss was 24 years old at the time of the offending. He is now 25. That puts him at the outer limit of the age range where a discount would be given for
46 Taulapapa v R, above n 6 at [38] referring to Harley v Police [2018] NZHC 404 and
McMurdock v Police [2017] NZHC 1283.
youth in a sentencing process.47 I accept that Mr Moss is in the early days of his working life but he does have established skills and qualifications in law and the beginnings of his qualifications as a chartered financial analyst.
Effect on mental health
[96] Mr Bonnar submits that the evidence before the District Court made it clear that the entry of a conviction would have adverse consequences on Mr Moss’ mental health. He refers to Ms Cullen’s updated report of 7 December 2019 where she concluded:
While Jono has indeed made progress, I believe he needs to continue working through the long-standing patterns that have been identified in therapy. Jono is already feeling the consequences of his behaviour and I do not believe a conviction is needed for him to further appreciate the impact of his behaviour and to take responsibility for his actions. In my opinion, a conviction at this point would be a significant blow to Jono’s confidence, self-efficacy and sense of hopefulness, potentially interfering with the progress he has been making and the momentum he has achieved in his recovery and growth to date. At this stage I believe the priority for Jono is that he is able to build on the gains he has achieved and continue to work toward his goal of emotional and psychological wellness.
[97]In his report, Dr Armstrong concluded:
Furthermore, I believe that such a therapeutic approach to the problem is more likely to result in complete resolution and to reduce the chances of recidivism than any other course of action that the Court may choose to take.
[98]The Judge addressed the mental health consequences as follows:
[36] In terms of your ongoing mental health issues, the Court recognises those, and it is very complimentary in terms of the efforts that you are making and the good work you have done in the lead up to today. The hope is that with ongoing care from both your family, and I acknowledge them for being here in Court today, and also from the specialists who are involved, that you will continue to perform well, and we will not have any relapse in this sense. Whilst I acknowledge that there may well be an immediate sense of loss and disappointment were a conviction to be entered and that may cause you some difficulty. I am equally satisfied that the illness now appears to be stabilised, there is ongoing counselling and treatment in place and you are continuing to perform well in that regard. So again, I am not satisfied that the result will be such that it would meet the high threshold of the test in this case.
47 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
[99] Mr Bonnar submits the Judge erred in stating that Mr Moss’ mental illness “appears to be stabilised”. Although it may have been overstating things to say that Mr Moss’ mental illness appeared to be stabilised, it can be said that the evidence established that he is well on the way to achieving that goal.
[100] I am not satisfied that on the evidence that there is a real and appreciable risk that the entry of convictions would have adverse consequences on Mr Moss’ mental health. It can be seen that Dr Armstrong prefers a therapeutic approach to any other course of action. But he does not go so far as to say that the therapeutic approach and Mr Moss’ mental health would be compromised by the entry of convictions. Ms Cullen puts it higher but only to say a conviction would potentially interfere with the progress Mr Moss has made. That does not reach the level of establishing that there is a real and appreciable risk that there would be adverse consequences for Mr Moss’ mental health.
Proportionality
[101] Mr Bonnar submits that as a result of errors made by the Judge in assessing consequences of a conviction, the Judge erred in concluding that the direct or indirect consequences of conviction would not be out of all proportion to the gravity of the offending.
[102] As Mr Herring correctly pointed out, it is not enough that the consequences of a conviction approximate or even weigh more heavily than the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the Court has the jurisdiction to grant a discharge without conviction.48
[103]Judge Glubb understood and correctly stated the test:
[17] The application is opposed. What this Court is required to do is undertake a weighting process. I have to look at the gravity of the offending and its particular factual context. I need to look at the direct and indirect consequences of a conviction and then determine whether or not they are out of all proportion to the gravity of the offence. Were I to determine that
48 R v Smyth [2017] NZCA 530 at [12].
they were, then I would give consideration to whether or not I should exercise the discretion in your favour and that is the way it operates.
[104] In relation to employment, overseas travel and effect on mental health, I have found that there is no real or appreciable risk of the identified consequences occurring. Accordingly, even assessing the gravity of the offending as low rather than low to moderate, as found by the District Court Judge, it cannot be said that the consequences in relation to employment, overseas travel and effect on Mr Moss’ mental health are out of all proportion to the gravity of the offending.
[105] As to Mr Moss’ youth generally, the ordinary consequence of the convictions would not be out of all proportion to the offending.
[106]Accordingly, the threshold for a discharge without conviction is not met.
Appeal against sentence
[107] Mr Bonnar submits that the sentence of supervision was otiose given that Mr Moss is undergoing treatment and counselling. He submits Mr Moss should have been convicted and discharged. The sentence of eight months was therefore manifestly excessive.
[108] There is no tariff case for criminal harassment. The charge carries a maximum sentence of two years’ imprisonment. Sentences for criminal harassment vary because the offending is always highly contextual. Comparison between cases is difficult in these circumstances. However it is not impossible: consistency in sentencing is an important principle in the sentencing regime.
[109] The following three cases referred to by Mr Herring provide some assistance. In A v Police,49 the High Court dismissed an appeal against a sentence of periodic detention and 12 months’ supervision for a conviction of one charge of criminal assessment which had been brought on the grounds that it was manifestly excessive. The appellant had met the victim socially. She told him that she did not want anything further to do with him but he telephoned her on over 50 occasions in the following
49 A v Police HC Gisborne AP3/01, 9 August 2001.
days. The victim served a trespass notice on the appellant but he continued to contact her. The High Court held that the sentence was not manifestly excessive given the need for deterrence and the lack of realistic sentencing alternatives. The appeal was dismissed.
[110] In Smaill v Police,50 the appellant was sentenced to three cumulative terms of six months’ imprisonment for three charges of criminal harassment, each against a different set of victims. The appellant had no relevant previous convictions. The offending involved the appellant making anonymous false allegations of sexual offending by one of the victims, making threatening phone calls to the victims and sending them threatening letters and parcels containing live ammunition and parts of clocks. The sentence was upheld on appeal.
[111] In Green v Police,51 the appellant was sentenced to 15 months’ imprisonment on each of two charges of criminal harassment to be served cumulatively in relation to two victims. The defendant pretended to know each of the victims and contacted them by text messages which became increasingly threatening. The harassments continued for just over a week. The sentencing Judge adopted a starting point of 17 months’ imprisonment on each charge with an uplift of one month to reflect previous similar offending and a discount for guilty pleas. The sentence was upheld on appeal.
[112] I consider that the offending in this case was less serious than in the above cases, particularly having regard to Mr Moss’ mental health which I have discussed in some detail already. On the other hand there is the effect on the victim who requested a protection order at sentencing.
[113] Having regard to the maximum penalty, and the above cases, it cannot be said that the sentence imposed was manifestly excessive. It was within the available range.
50 Smaill v Police HC Dunedin AP17/99, 25 June 1999.
51 Green v Police [2012] NZHC 3228.
Result
[114]The appeal is dismissed.
Gordon J
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