O'Riley v Police HC Wellington CRI 2011-485-98

[2011] NZHC 1915

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-485-98

LEONARD GEORGE O'RILEY

Appellant

v

NZ POLICE

Respondent

Hearing:         1 November 2011

Counsel:         S Iorns for the Appellant

H Lanham for the Respondent

Judgment:      25 November 2011

JUDGMENT OF MALLON J

Introduction

[1]      Mr O’Riley appeals from a decision of the District Court declining to grant him a discharge without conviction.  The conviction was on a charge of breaching a protection order (ss 19(1)(d) and 49(1)(a) of the Domestic Violence Act 1995) to which he had pleaded guilty.   Mr O’Riley contends that the Judge in the District Court  erred  by  overstating  the  gravity  of  the  offending  and  understating  the

consequences of the conviction.

O'RILEY v NZ POLICE HC WN CRI 2011-485-98 25 November 2011

The offending

The circumstances

[2]      Mr O’Riley is a regular patron at the Cosmopolitan Club in Upper Hutt.  One Friday evening in November last year, when he was at the Club, he noticed that his former partner was there.  This was unexpected because Mr O’Riley had not seen his former partner for many months.  Their six year relationship had ended in June 2007. As a result of Mr O’Riley’s behaviour after the break-up his former partner obtained a protection order on 14 December 2009.   Thereafter there had been no contact between them.

[3]      On the evening in question Mr O’Riley’s former partner was at the Club with a group of friends.  They were waiting inside for a courtesy van.  The summary of facts describes Mr O’Riley walking past her on his way to and from the men’s toilets and smiling at her as he did so, then walking towards and looking at her and her friends and stopping when he was about 10 metres away, and doing this for a second time and making a gesture indicating that he wanted to talk.  After this he is said to have walked away.  His former partner left the Club shortly after this.

[4]      Mr O’Riley takes issue with the number of times he is said to have walked past or looked at his former partner.   He says that he was going about his usual activities.   He acknowledges that he looked at her, and that he did make a hand gesture to see if she wanted to have a chat, but when she shook her head he left it at that.   His counsel had sought an indication from the District Court Judge as to whether the number of times he was said to have walked past or looked at his former partner would be material because, if it was, he wished to have a disputed facts hearing.

The District Court’s assessment

[5]      The Judge’s sentencing notes refer to the summary of facts as “the facts on which I proceed”.   The Judge recounted the description in that summary and said that “the thing to note about that is that there is not just one contact but five or

perhaps even six forms of contact”.  He then went on to say that he needed to treat the incident as a whole, that “arguably only the gesture would have been a proper basis for the charge”, but the other matters were relevant as part of the picture. These comments suggest that the Judge considered the number of times Mr O’Riley walked past his former partner was relevant.  It is therefore unclear why there was no disputed facts hearing.

[6]      The Judge described Mr O’Riley’s former partner as being “shocked and very uncomfortable” that Mr O’Riley would even attempt to speak to her.  He noted that she thinks Mr O’Riley is “obsessive” and she finds this “unnerving”.  He also noted that  she  regarded  Mr O’Riley’s  actions  as  a  “confrontation”.    He  regarded  her reactions as relevant because those who obtain protection orders are to a greater or lesser extent vulnerable and affected by conduct that others might simply brush off.

[7]      The Judge viewed the offending as not “purely technical or at the lowest end”.  He said that is was “considerably less serious than many that come before the Court” but that it was a “clear breach”.  He went on to say that the maximum penalty had recently been raised from six months to two years’ imprisonment and “so it is one of the more serious matters that are on our statute books”.  He said that while it was “towards the lower end of the scale” for a breach of a protection order “it is in respect of a charge which is not a relatively minor charge.”  Overall he described the seriousness of the offending as “relatively low level”.

My assessment

[8]      The respondent submits that the Judge correctly assessed the gravity of the offending.  Mr O’Riley submits that the Judge’s assessment overstated the gravity by placing weight on the disputed actions, placing undue weight on the former partner’s views and not properly putting to one side background information in her victim impact statement, and failing to give sufficient weight to Mr O’Riley’s evidence that he had not seen his former partner for many months.

[9]      I do not accept that the Judge placed undue weight on the former partner’s

views, nor that he took into account any irrelevant background material.  I agree that

the Judge appears to have placed weight on facts which were in dispute.  I also agree that the period of non-contact was relevant as providing context in which to assess the severity of the psychological abuse on this occasion.

[10]     Even taking the version of events set out in the summary of facts, in my view the Judge did slightly overstate the seriousness of the offending.  I say that because the Judge described the offence as one of the more serious matters on our statute books when that is not the case.  Additionally it is not apparent that the Judge took into account the following factors: that Mr O’Riley was a regular at the Club and his former partner knew that; that he was not expecting to see her there and, perhaps not unnaturally after not seeing her for several months, wanted to chat with her; that she was in a public place with her friends and with other patrons present and so was not at any personal risk; that Mr O’Riley remained some distance from her; and that he immediately desisted when she declined his invitation to chat.  Overall therefore I would view the gravity of the offending as “low” rather than “relatively low”.

Consequences of a conviction

[11]     Mr O’Riley  filed  an  affidavit  in  the  District  Court  in  support  of  his application to be discharged without conviction.  In the affidavit he explained that he was looking for work.   He has found his current job stressful because his income depends on commissions and sales have not been the best.   He considered that a conviction would put him at a distinct disadvantage when applying for jobs. He also noted that he was 48 years old and has no history of criminal offending other than a conviction in 1987 for careless driving and a Youth Court matter in 1979.  As such, but for the present conviction, he has a “clean slate” under the Criminal Records (Clean Slate) Act 2004.   He also said that he was planning an overseas trip to Gallipoli and was concerned that the “trip of a life-time” might be prevented by a conviction of this nature.

[12]     The Judge rejected Mr O’Riley’s travel concerns.  The Judge’s view was that, in the absence of evidence otherwise, a conviction on this matter was unlikely to affect  his  travel’s  plans.    He  saw  “more  force”  in  Mr O’Riley’s  employment concerns.   He accepted that the reality of the job market these days was that a

conviction, even for a matter that has no direct relevance to the job, can have an impact when competing for a job with someone that has no convictions.

[13]     For  the  purposes  of  the  appeal  Mr O’Riley  has  filed  a  further  affidavit updating his employment situation.  The respondent did not oppose the admission of this evidence and did not seek to cross-examine Mr O’Riley on it.   Mr O’Riley deposes that he has now applied for two jobs and been unsuccessful on both.  He made the short list for one of those and was due to undergo a drug test as part of the application process.  However, when he advised the employer of the conviction on this matter he received a letter from the employer advising that his application was unsuccessful.   When applying for the other job he disclosed his conviction and received advice that he had been unsuccessful.

[14]     Although this information does not establish that Mr O’Riley missed out on the jobs  because  of his  conviction,  it  does  confirm  that  Mr O’Riley is  actively seeking new employment.  I agree with the District Court that, even a conviction on a minor matter which has no direct bearing on a person’s suitability for a job, can affect that person’s prospects in securing that job.

Proportionality

[15]     A discharge without conviction cannot be granted 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]     The  Judge  considered  that  “the  potential  consequences  of  entering  a conviction outweigh, to some extent, the gravity of the offence.”   The Judge considered that they were not “out of all proportion” to the gravity of the offence. He considered it appropriate to impose “a very lenient sentence”.   He entered a conviction and ordered Mr O’Riley to come up for sentence if called upon within the next six months.

[17]     The respondent supports the Judge’s assessment of this.  However I consider

that the test for a discharge is met.  I take a different view from the Judge because I

consider that the gravity of the offending was slightly overstated, and there is evidence  before  me,  which  was  not  available  to  the  Judge,  confirming  that Mr O’Riley is actively seeking work, that he has disclosed his conviction and that he has then been declined positions.  Although the breach was a little more serious than the in Steele v Police[1] and Deeming v Police[2] where discharges without convictions were  granted  in  respect  of  what  were  considered  to  be  technical  breaches  of protection orders, the present case is nevertheless at a similar end of the spectrum.

[1] Steele v Police HC Rotorua CRI-2007-463-151, 11 February 2009.

[2] Deeming v Police HC Whangarei CRI-2008-488-61, 24 July 2009.

[18]     I also take into account that the protection order was put in place as a result of Mr O’Riley’s activities at a time when Mr O’Riley was having difficulties. At this time he self-referred to counselling, attending approximately 10 sessions between February to August 2009.  Since the protection order has been in place, this is the first occasion that Mr O’Riley has breached it.   I note that his former partner was concerned that if Mr O’Riley was discharged without conviction he would think that he could get away with breaching the protection order.  However, the fact of facing a charge and having to go through the court process is itself likely to have reinforced to Mr O’Riley the need to strictly comply with the order.  Any further breach of the order may not result in the same outcome as the present.

Result

[19]     Accordingly  the  appeal  is  allowed.     Mr O’Riley  is  discharged  without

conviction.

Mallon J