N v Police HC Wellington Cri-2009-485-7

[2009] NZHC 603

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-000007

N

v

NEW ZEALAND POLICE

Hearing:         19 May 2009

Appearances: Ms Gould for the appellant

Mr Murray for the respondent

Judgment:      22 May 2009         at 12.30 pm

JUDGMENT OF MALLON J

Introduction

[1]      In  an argument with his partner,  at  a time of  stress  for  them,  Mr  N   assaulted his partner in a relatively minor way.   He pleaded guilty to a charge of assault and, with the support of his partner, sought a discharge without conviction. The District Court declined to discharge him without conviction, and instead entered a conviction and discharge. Mr N   appeals saying that the consequences of the

conviction are out of all proportion to the gravity of his offending.

N V NEW ZEALAND POLICE HC WN CRI-2009-485-000007  22 May 2009

[2]      According  to  the  summary  of  facts,  a  verbal  argument  began  between Mr N    and  his  partner.    In  the  course  of  that  argument  Mr  N    pulled  his partner’s hair, the force of which made her fall to the floor.  In an aggressive fashion Mr N   then went through his partner’s jacket pockets.  His partner kicked out at him to get him away from her.  Mr N   grabbed his partner by the leg and she fell to the floor.  His partner received no injuries.  Mr N   was arrested and charged – initially with a charge of male assaults female (s 194(b) of the Crimes Act 1961) but subsequently amended to assault (s 196 of the Crimes Act) apparently in recognition of its minor nature.

[3]      At the time of the incident Mr N   was 24.   He had one conviction for a burglary committed on 5 January 2002 for which he was sentenced to a fine of $700 and ordered to pay court costs.  He also had three convictions for wilful damage for the period of 14 to 19 June 2002 for which he was fined $300 and ordered to pay reparation of $100.  He had no convictions since that time.  He was working as an apprentice builder.   Two positive references were submitted to the District Court from his employer and a fellow builder.

[4]      There are a number of reports setting out the views of Mr N  ’s partner at various stages of the proceedings.  At the time of the arrest she was concerned about Mr N  ’s mood swings and considered he needed help, but did not seek a “no contact” condition attaching to his bail.  A month later she reported that they were back together and intended it to remain that way.   She said that they had started relationship counselling which had been going well, that she definitely was not scared of Mr N   and that she really wanted the charges dropped.  She referred to the stress they were under at the time.

[5]      She  completed  victim  impact  statements  for  the  District  Court  hearing. These statements covered similar ground although she also said that the incident had really upset her and that she was scared of Mr N   at the time.  She also said that due to the stress they had been under they had been having lots of arguments.  She said that this was the first occasion when their arguments had turned physical.  She

said that she and Mr N   had got back together and there had been no problems since. She said that if it were up to her the charges would be dropped.

[6]      When Mr N  ’s application for a discharge without conviction was to be considered by the District Court, his partner provided updated information.  She said that they had completed six sessions of relationship counselling which they had found helpful.  She said that she was “strongly supportive” of Mr N  ’s application and had no concerns about his behaviour.

District Court decision

[7]      The District Court’s  reasons for not granting a discharge without conviction were as follows:

[4]       The application in referring to the consequences of conviction says they [sic] would be loss of personal esteem on the part of the applicant who prides  himself  as  a  gentle,  supportive  and  loving  partner.     Secondly, escalating tension  between  the  couple  as  a  result  of  the  conviction  and thirdly, loss of employment and travel prospects for example, he might well be overlooked for a job as foreman with a conviction of this nature, particularly if competing with others.

[5]       It  has  been  submitted  that  the  surrounding  circumstances,  for example  the  plea  of  guilty,  the  attitude  of  the  applicant  who  wants  a discharge  or  the  charges  to  be  dropped,  and  the  preparedness  of  the defendant to make a donation, all go to lessen the gravity of the offending.

[6]       I regret that I cannot grant the defendant a discharge under s 106.  It seems to me that this was a deliberate attack on the victim in a domestic environment,  and  if  these  arguments  are  to  carry  weight,  then  such arguments generally about the consequences about domestic violence, could also carry weight.  I do not think I can set a precedent in this particular case. I accept that precedents as such cannot usually be set in matters where there is a discretion, but I just feel unhappy that I should accede to the request to discharge this man without conviction when he clearly entered into, as I have said, a deliberate course of domestic violence.   Nor do I accept that the consequences of a conviction meet the s 107 test.

[7]       However, in the circumstances I would be prepared to convict and discharge him, which I do.  I think that the conviction itself should mark his behaviour and I disagree that far from causing tension between the couple, it may well have the opposite effect, because Mr N   will think twice if stress gets to him in the future.

[8]      A preliminary issue arose as to whether this appeal, which was brought as an appeal against sentence, ought to have been brought as an appeal against conviction and sentence.   The respondent considered the latter was more appropriate and indicated no opposition to an amendment to the notice if the Court considered that should be done.  I do not think it is necessary to make any formal amendment.  There are a number of instances where the Court has dealt with an appeal against a refusal to discharge without conviction as an appeal against sentence: for example Wang v New Zealand  Police  HC  AK  CRI-2008-404-316  23  March  2009  and  Cross  v New Zealand Police HC WN CRI-2004-485-120 16 November 2004.

[9]      Section 106 of the Sentencing Act 2002 permits the court to discharge an offender without conviction, and such a discharge is deemed to be an acquittal. Section 107 of the Sentencing Act provides that the court “must not” discharge the 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”.

[10]     The approach to be taken to an appeal against a refusal to grant a discharge without conviction is discussed in R v Hughes [2008] NZCA 546. Specifically, whether the test in s 107 is met is a matter of fact, not discretion, requiring judicial assessment. This means the appellate court is to come to its own assessment as to whether the s 107 test has been met. The factors that are relevant to that assessment are likely to be the same as those that are relevant to the exercise of the discretion to discharge under s 106 so that in practice, if the test in s 107 is met, the discretion to discharge under s 106 likely will be exercised. In assessing the gravity of the offending, the court is to consider not just the nature of the offence, but also matters affecting the overall culpability of the offender. The direct and indirect consequences of conviction, including how likely it is that they will occur, are to be considered. The circumstances which might meet the test and warrant the exercise of the discretion are limitless.

[11]     For Mr N   it is said that the District Court Judge erred in a number of ways. First it is said that the Judge failed to take into account the submission that the surrounding circumstances were relevant, which included (particularly) Mr N  ’s partner’s views.  It is said that the Judge merely recorded the submission but did not go on to say that he accepted this.  I do not agree.  My reading of the Judge’s reasons is that he acknowledged the submission that had been made but said that if it was to carry any weight then it was also necessary to give weight to the consequences of domestic violence.

[12]     Secondly it is said that the Judge was wrong to refer to the precedent that would be set in this case if he were to grant the application.  It is said this is wrong because the granting of a conviction without discharge is the exercise of a discretion on the facts of a particular case.  I agree with the respondent that the Judge did not decline the application because of his concerns about setting a precedent.  He went on to say that he accepted that precedents as such were not set.  He also went on to say that his concern was as to the nature of the offending and that the test in s 107 was not met.

[13]     Thirdly it is said that the Judge wrongly categorised the offending as “a deliberate attack” and “a deliberate course of domestic violence”.   It is said that while any assault  involves  an  element  of  intent,  so  that  it  can  be  described  as deliberate in that sense, this description overstated the nature of the offending.   I agree that the nature of the offending was not deliberate in the sense of there being any degree of premeditation.  A verbal argument had begun which became physical but in a relatively minor way (a forceful tugging of hair and holding onto a leg that had been kicked at him).  Nor was it a course of domestic violence in the sense of it lasting over any length of time.  At least as described in the summary of facts the physical assault began and ended quickly.  The nature of the assault was very much at the lower end of the scale with the only aggravating feature being its domestic nature.

[14]     As to the overall culpability of the offender, counsel for Mr N   emphasises Mr  N  ’s  remorse.    This  remorse  is  evident  from  the  couple  counselling  that Mr N   and his partner have attended.  It is also evident in a letter which Mr N   wrote for the Court but which apparently did not make its way to the District Court Judge (the respondent takes no objection to me considering the letter).  In the letter Mr N   apologises for his unacceptable behaviour, said he did not intend to hurt his partner and that he loved her, and said he hated finding himself back in court.  He referred to the counselling that they had been to, said he took pride in his work and wanted to become a qualified builder and said that he had grown up since the time of the offending giving rise to his earlier convictions.

[15]     Counsel for Mr N   also refers to the views of his partner.  I agree that they are relevant.   They give the court some comfort that the offending was relatively minor and one-off in nature.  There is no suggestion that Mr N  ’s partner has been coerced into supporting Mr N   in seeking to be discharged without conviction. There is also no suggestion in Mr N  ’s record that he is ordinarily a violent person.  The police took a neutral stance on the application and so apparently did not view the offending to be sufficiently serious as to necessarily require a conviction.

[16]     Turning to the consequences of conviction, counsel for Mr N   refers to loss of esteem and personal pride in being a supportive non-violent partner, possible damage to the since-healed relationship and loss of employment and other prospects.

[17]     The Judge dismissed the possible damage to  the  relationship  because  he considered that a conviction might cause Mr N   to “think twice” if stress gets to him in the future.  However Mr N   has already made efforts to address the cause of his offending and the arrest and court appearances may well be sufficient deterrence for the future.  If he is discharged without conviction on this occasion he could not expect a similar outcome if he were to come before the courts again for offending involving violence to his partner.

[18]     There  is  not  much  in  the  way  of  evidence  of  any  specific  damage  to employment or other prospects.  Mr N  ’s present job is not at risk.  Mr N   may in due course seek to be a member of Registered Master Builders.   A letter from

them advises that their criteria require “high standards of business and financial acumen, workmanship and personal conduct with the public” and that if an applicant’s  behaviour  “would  affect  the  dignity,  standing  and  reputation  of Registered Master Builders then it may result in membership being declined”. However it is difficult to envisage that being the case in respect of this conviction given its minor nature, as is apparent by the District Court’s decision to discharge Mr N  .

[19]     Nevertheless  I accept  the  submission  for  Mr N    that  there  are  general consequences that follow from a conviction.  In a variety of ways (eg. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions.   For those that are remorseful there can be a loss of pride and self- esteem or at least embarrassment in having to answer that question honestly.  It may also materially disadvantage him – as his counsel says it may count against him when  he  is  competing  for  a  position  against  someone  who  does  not  have  a conviction.  It is true that the record will show that the conviction was for a minor matter because it will show that Mr N   was discharged, but it will also show that it was serious enough for a conviction to have been entered.  Mr N   does have other convictions, but under the Criminal Records (Clean Slate) Act 2004 he will soon have a “clean slate” in relation to them.  It is apparent from Mr N  ’s record that he has since that time stayed out of trouble and, according to the other material before the Court, is a hard working young man.

[20]     Overall I am satisfied that these general consequences of conviction which may operate to Mr N  ’s disadvantage are out of all proportion to the gravity of the offending, particularly in light of the mitigating factors.  Courts may be reluctant to grant convictions without discharge in situations of domestic violence, but there are some cases which warrant this course and I consider that this is one such case. Mr N   has offered to make a donation to the Woman’s Refuge.  I will, however, leave it to him to do so voluntarily without making it a condition of allowing his appeal (via an adjournment to see that payment is made).

Result

[21]     The appeal is allowed.  Mr N  ’s conviction is quashed.  He is discharged without conviction.  The District Court’s order to pay court costs stands.

Mallon J

Solicitors:

R Gould, PO Box 12-549, Wellington (email: [email protected])

I Murray, Luke Cunningham Clere, PO Box 10357, Wellington (email: [email protected])