Northover v Police
[2020] NZHC 167
•14 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000495
[2020] NZHC 167
BETWEEN KOTAHITANGA KINGI NORTHOVER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 February 2020 Counsel:
DPH Jones QC for Appellant J Kang for Respondent
Judgment:
14 February 2020
JUDGMENT OF BREWER J
This judgment was delivered by me on 14 February 2020 at 10:30 am Registrar/Deputy Registrar
Solicitors:
Cook Morris Quinn (Auckland) for Appellant Meredith Connell (Auckland) for Respondent
NORTHOVER v POLICE [2020] NZHC 167 [14 February 2020]
Introduction
[1] Mr Northover pleaded guilty to three representative charges of assault with a weapon and three representative charges of assault on a child. The victims were his three mokopuna, then aged 10, nine and eight years.
[2] On 5 June 2019, Judge KJ Glubb refused Mr Northover’s application to be discharged without conviction and sentenced him to four months’ community detention.1 Mr Northover has served that sentence.
[3] Mr Northover wishes to appeal Judge Glubb’s refusal to discharge him without conviction. His notice of appeal was filed on 11 November 2019, some four months after the expiry of the 20 working days appeal period.2 He applies for an extension of the appeal period.
[4] Mr Northover has filed an affidavit, sworn on 19 December 2019, in which he deposes to his whakamā associated with the convictions being so overwhelming he could not engage with the appeal process. I accept this explanation. I also find there is a genuine basis for bringing the appeal and that the interests of justice would be best served by allowing it to proceed. The Crown is silent on the issue. I extend the time allowed for filing the Notice of Appeal to the date it was filed.3
[5] Mr Northover also applies for me to receive as evidence in support of his appeal generally his affidavit of 19 December 2019 and an affidavit by his brother, Mr Don Clark. The Crown does not oppose. I will have regard to those portions of the affidavits which describe the effect of the convictions on Mr Northover and events occurring subsequent to them. I will take that as “fresh” evidence.
1 Police v Northover [2019] NZDC 10599.
2 Criminal Procedure Act 2011, s 231(2).
3 Criminal Procedure Act 2011, s 231(3).
Jurisdiction
[6] Mr Northover will succeed in his appeal if a miscarriage of justice has occurred.4 There will be a miscarriage if there has been a material error in the District Court decision.
Background
[7] The summary of facts is sparse. It states, barely, that Mr Northover’s mokopuna were staying with him along with their father as part of a shared custody arrangement with their mother. The summary goes on to say:
[Mr Northover] took on the role of disciplining the children and only he in the household was supposed to do this. [Mr Northover] had strict rules for the children, such as ensuring that they complete a number of chores and to always ask before getting food from the kitchen.
If [Mr Northover] felt that the victims had broken any of his rules, he would hit them with particular objects including a wooden spoon, a spatula, and a backscratcher. He would hit them to their arms, legs, hands and buttocks.
Over this period [Mr Northover] would also hit the children with his hands. This was also to various parts of the body.
In particular, on Wednesday the 11th of April 2018, the victims were at [Mr Northover’s] house. [Mr Northover] was frustrated as the victims had not done chores such as making the beds or doing the dishes. [Mr Northover] smacked the hands of the two younger victims … with his hand. He used his hand to hit [the older victim]. She was often told that she got worse punishment than the others as she was the oldest and should be setting an example for the younger children.
[8] There is no information as to how frequently Mr Northover hit his mokopuna. There is no assertion that the violence caused bruising or other injury.
[9] The broader context is that the mokopuna’s parents had separated acrimoniously. The children had significant behavioural difficulties. Their father was away from the address frequently and it was left to Mr Northover and his wife to care for the children and try to impose discipline. Mr Northover is Māori. He was brought up as part of a large traditional Māori family. Recourse to physical chastisement was a part of his experience of family discipline. He knew it was wrong to hit his
4 Criminal Procedure Act 2011, s 232(2)(b).
mokopuna, and he had other methods of sanctioning the children, but in the interests of correcting their behaviour he felt at times he had no choice but to use physical force.
[10] Mr Northover during the period of the offending was around 54 years old. He had no convictions of any kind. He was, and is, employed in a responsible IT position with Te Whānau o Waipareira Trust. He had for many years been a volunteer with a number of Māori organisations:
·Te Whare Whakau Trust
·Waipareira Trust
·Pukerewa Station
[11] Mr Northover believes in the power of education to lift Māori children from what could otherwise be destructive lives and he was dismayed to see his mokopuna adopting patterns of behaviour which he knew put so many Māori children on a destructive path. He was determined by the imposition of sensible rules of participation in household chores and acceptable standards of behaviour to put his mokopuna on the right path.
[12] The mokopuna told their mother about Mr Northover’s conduct. She called the police. Mr Northover accepted immediately his fault and he pleaded guilty to the charges at the first available opportunity. Of his own initiative, he took significant steps to address his behaviour:
·Attending anger management assessment and undertaking the Man Alive – Living Without Violence programme to completion.
·Undertaking the Te Ohaki Whānau Ora Wānanga course.
·Undertaking the Whānau Ora (Wellness and Wellbeing) Wānanga programme.
·Completion of the Incredible Years Parenting Programme provided by Te Whānau o Waipareira.
·Completion of 20 hours’ voluntary work at the Te Whare Whakau Trust.
[13] In sentencing Mr Northover, Judge Glubb had the advantage of a cultural report from Dr Ruwhiu (which the Judge described as valuable).5 The Judge also had a pre-sentence report which recommended the outcome for Mr Northover “to come up for sentence if called upon”. The Judge also had an affidavit from Mr Northover in which he described his background, his deep remorse and the efforts he had made to understand his offending and gain the tools and insight to ensure there will be no repetition.
Judge Glubb’s decision
[14] Judge Glubb first summarised Mr Northover’s offending and drew from it factors the Judge considered aggravated the offending. In paraphrase:
·The charges are representative rather than addressing one particular incident.6
·The mokopuna were in Mr Northover’s care. There is an associated breach of trust.7
·There are three victims.8
·The victims were vulnerable because of their ages and they were in Mr Northover’s household.9
·The effect on the mokopuna. The Judge referred to victim impact statements in which the mokopuna speak of feeling unsafe, of not liking to be hit and being “really sad and unhappy when he smacked me”.10
[15]The Judge saw no mitigation in the offending.11
5 At [27] – [32].
6 At [13].
7 At [12].
8 At [14].
9 At [15].
10 At 17] – [20].
11 At [23].
[16] Judge Glubb referred in some detail to the reports he had on Mr Northover and made particular reference to the cultural report by Dr Ruwhiu.
[17]Judge Glubb then turned to the application for a discharge without conviction.
The Judge conducted the three-step analysis required by the law:12
(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.
(b)Determine the direct and indirect consequences of a conviction for the offender.
(c)Determine whether those consequences are out of all proportion to the gravity of the offending.
[18] Judge Glubb assessed the offending as moderate offending which would have approached moderate to serious offending but for Mr Northover’s personal mitigating factors.13
[19] As to the direct or indirect consequences of convictions, Judge Glubb drew a distinction between consequences following from the offending conduct itself and consequences arising from being convicted. For this reason the Judge rejected counsel’s submission that a consequence of conviction would be to amplify Mr Northover’s loss of contact with his whānau.14
[20] The Judge turned to the emotional consequences for Mr Northover as highlighted in Dr Ruwhiu’s report and in Mr Northover’s affidavit. The Judge acknowledged Mr Northover’s whakamā.15
12 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].
13 At [39].
14 At [40].
15 At [41].
[21] In terms of employment, the Judge was not satisfied there was a real and appreciable risk that Mr Northover might lose his current employment.16 The Judge perceived that any future employment assessment would take into account Mr Northover’s employment history, and would be undertaken in a reasonable and fair-minded manner.
[22] The Judge was also not satisfied there was a real and appreciable risk to the continuation of Mr Northover’s longstanding community activities.17
[23] The Judge did not identify any direct or indirect consequences for Mr Northover if convictions were entered.
[24]The Judge did say:
[60] The whakamā I acknowledge. I acknowledge that there is shame and it appears to be focused on this offending conduct, clearly. And whilst I acknowledge that the loss of a clean record is significant, I am not satisfied that that is out of all proportion to the gravity of the offending in the circumstances.
[25] Judge Glubb concluded that the potential consequences identified by Mr Northover were not made out as real and appreciable risks and could not be said to be out of all proportion to the gravity of his offending.18 Accordingly, the Judge refused to discharge Mr Northover without conviction.
Discussion
[26] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction.19 The test is set out in s 107 of the Sentencing Act 2002:
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.
16 At [55].
17 At [57].
18 At [62].
19 Sentencing Act 2002, s 106.
[27] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied the consequences would be out of all proportion to the gravity of the offence.
[28] The law is clear that in assessing the gravity of the offence all relevant matters relating to the offending itself and to the offender must be taken into account. That means that offending which in itself is serious can be characterised overall as less serious if relevant mitigating factors personal to the offender are present.
[29] Here, Judge Glubb, for the aggravating factors he mentioned, characterised the offending itself as being moderate to serious in its gravity. His Honour found no mitigating feature in the offending. With respect, I disagree.
[30] Mr Northover did not use violence wantonly or capriciously. He thought he was using it correctively and in the best interests of the children. That is a mitigating factor.20
[31] Mr Northover knew his use of violence was wrong. I, of course, agree with Judge Glubb where he remarked:
[33] What I recognise against that backdrop is that the family violence and harm are simply too prevalent in our community and it starts with situations such as this and progresses. Learned behaviour becomes modelled behaviour, and that is what you have said in your affidavit.
[32] However, the level of violence used by Mr Northover was not great. There is no allegation he caused his mokopuna physical injury.
[33] In all the circumstances, I assess the offending itself as moderately serious bearing in mind the aggravating factors identified by the Judge.
[34] In my view, although Judge Glubb recognised the mitigating factors personal to Mr Northover, I find he gave too little credit for their collective effect.
20 Sentencing Act 2002, s 9(4)(a).
[35] Mr Northover was around 54 years old at the time of the offending.21 He and his wife found themselves caring for three young mokopuna who had been traumatised by their previous experiences of life. They had challenging behavioural difficulties. Mr Northover, a person of exemplary character, did his best to help his mokopuna. In accordance with the traditions of his background, he set domestic rules and standards of behaviour. He resorted to low level physical violence where he thought that was necessary to correct behaviour. He knew that was wrong and tried other methods, but at times he also used violence.
[36] When Mr Northover was approached by the police he concealed nothing. He took extraordinary steps to address the causes of his offending, to learn about it and to acquire skills to prevent recurrences. He showed extreme and genuine remorse.22
[37] In my view, looking at Mr Northover’s situation holistically, all of this means the Court should have considered his offending to be at a low level of seriousness.
[38] I note that Judge Glubb, when assessing the final sentence, rejected community work as an option because of Mr Northover’s respiratory problems.23 The Judge rejected supervision as a sentence because, given the extensive rehabilitative efforts made by Mr Northover, it would be otiose.24 The Judge was not prepared to sentence Mr Northover to come up for sentence if called upon and so went back up the scale of community-based sentences to community detention. I think the Judge’s analysis underscores the conclusion that overall the offending was at a low level of seriousness.
[39] I think also there are significant similarities between this case and that of Mathieson v Police.25 In that case, Mr Mathieson had pleaded guilty to charges of male assaults female and threatening to kill. The assault involved repeated grabbing of his partner by the jaw with both hands. The complainant suffered a sore head and neck, with visible bruising.
21 Sentencing Act 2002, s 9(2)(a).
22 Sentencing Act 2002, s 9(2)(f).
23 At [72].
24 At [72].
25 Mathieson v Police [2019] NZCA 406.
[40] On the face of it, this was moderately serious offending. However, Mr Mathieson made extensive efforts to address his offending and to rehabilitate himself. The Court of Appeal said:
[15] Assuming for present purposes that an assessment for the actual offending of moderately serious was correct, then the relevant mitigating factors were many and strong:
(a)at the time of sentencing Mr Mathieson was a 40 year old who had only a careless driving conviction committed when he was 19 years old;
(b)he has been in constant employment all his adult life;
(c)he had completed courses addressing the causes of his offending and appeared to display considerable insight into his offending;
(d)he was remorseful and offered to participate in restorative justice, so he could apologise directly; and
(e)the impetus for undertaking the rehabilitative courses came from him before any formal engagement with the Court.
[16] We do not consider it possible for a proper consideration of these factors not to have resulted in a significant reassessment of the overall gravity of the offending. In terms of the observation made by the High Court, we observe such a reassessment does not constitute a recharacterisation of the seriousness of the offending. They are two different evaluations, reflecting the two steps inherent in the first stage of the s 106 assessment discussed above at [8]. The first is an initial grading of but one aspect of the case — the actual offending; the second evaluation is a much broader analysis of all relevant considerations, including the actual offending. That the overall assessment of gravity is lower than the narrower assessment of the offending merely reflects that at the second step within the gravity assessment there are positive mitigating factors to also consider.
[41] The Court of Appeal concluded that taking into account these very positive mitigating factors the proper assessment of the gravity of the offending was one of low seriousness.26
[42] The second stage of the analysis requires an assessment of the direct and indirect consequences of convictions for Mr Northover.
26 At [17].
[43] Mr Northover has identified a possible threat to his employment. His employer requires an annual police check for criminal convictions. The Māori organisations he supports voluntarily are also sensitive to criminal convictions. There is also the acknowledged risk that any future employment sought by Mr Northover would be affected by criminal convictions for violence against children. The conclusion of the Court of Appeal in Mr Mathieson’s case could be said to apply equally to Mr Northover:27
[21] … There is no basis to consider Mr Mathieson offers any risk of reoffending; to the opposite effect, the signs are that he is now a person with insight into his actions who has taken considerable steps towards addressing the causes of his offending. Given the overall low culpability, we consider the impact of a conviction for male assaults female and threatening to kill on a 41 year old in stable employment and who is effectively a first offender would be out of all proportion.
[44] There is one further factor going to consequences and proportionality which is important in this case. It is Mr Northover’s cultural background.
[45] Mana is of great significance to Mr Northover. His sense of self is inextricably linked to it. His mana reflects his life of work and achievement, his qualities and the respect he has earned in the community, particularly his Māori community. His offending has diminished his mana. His whakamā is deep. He does not feel able to resume his voluntary work. He grieves the loss of contact with his mokopuna. I disagree with Judge Glubb that these consequences for Mr Northover arise only from his offending. The convictions are a public declaration that his offending is so serious that, despite all he has achieved in life, Mr Northover must forever bear the stigma of being a criminal. I accept that discharges without conviction would have a desirable and appropriate rehabilitative effect on Mr Northover.
Decision
[46] I find the refusal by the District Court to discharge Mr Northover without conviction was the result of material error.
27 Mathieson v Police [2019] NZCA 406.
[47] The appeal is allowed. Mr Northover’s convictions and sentences are quashed. Mr Northover is discharged without conviction.
Brewer J
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