O v Police HC Auckland Cri-2010-404-86
[2010] NZHC 1365
•22 June 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-086
O
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 June 2010
Appearances: B Donald for the Appellant
K V Mills for the Crown
Judgment: 22 June 2010 at 2:00 pm
RESERVED JUDGMENT OF COURTNEY J
This judgment was delivered by me on 22 June 2010 at 4.30 pm pursuant to R 11.5 of the High Court Rules
Date…………………….
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Counsel: B P Donald, PO Box 26603, Auckland 1344
O V POLICE HC AK CRI-2010-404-086 22 June 2010
[1] Mr O was convicted on 10 March 2010 in the District Court at Waitakere on one charge of assault. He appeals against that conviction, his ground of appeal being that Judge Mather should have granted a discharge without conviction pursuant to s 106 Sentencing Act 2002.
[2] The conviction followed a guilty plea by Mr O . The circumstances of the offending appeared from the summary of facts. The complainant was Mr O ’s partner, Ms Terakia. There had been an argument during which Mr O threw a cup at Ms Terakia, hitting her unintentionally. She left the house. Mr O followed her up the driveway, pulled her shirt and pushed her on the front of her shoulders with both hands as a result of which she fell to the ground. She suffered bruising but no other injuries.
[3] Mr O sought a discharge without conviction. The basis for that application was primarily that Mr O already worked part-time in the social services sector and wished to obtain qualifications and work full time in that area but was concerned at the effect of an assault conviction on future employment prospects. In addition, Mr O had, by the time of sentencing, completed a ‘Man Alive’ course on anger management.
[4] Ms Donald for Mr O submitted that, in refusing a s 106 discharge without conviction the Judge made the following errors:
a) Taking into account police records of previous family violence callouts in which Mr O was recorded as being the suspect or offender. Ms Mills, for the police, accepted that it was inappropriate to take this information into account. None of those callouts resulted in convictions and there was, of course, no evidence before the Judge as to the circumstances giving rise to the callouts apart from the police records themselves.
b)Taking into account a statement in Ms Terakia’s victim impact statement that she received cuts to her body while trying to escape out of a window. There was no statement to this effect in the summary of
facts in respect of which Mr O pleaded guilty. Although, as Ms Mills pointed out, Ms Terakia’s statement was not necessarily inconsistent with the summary of facts, it was a distinctly new fact, of which there was no evidence and to which Mr O cannot be taken by his guilty plea to have accepted. As a result, it was an error for the Judge to take that statement into account.
[5] I accordingly accept Ms Donald’s submission that the Judge did make errors in determining the s 106 application. I therefore turn to consider the circumstances afresh and whether a s 106 discharge without conviction would have been appropriate.
[6] Section 106, which permits a Judge to discharge without conviction, is of course subject to s 107 which provides that:
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.
[7] Applications of ss 106 and 107 therefore require the Court to identify the gravity of the offending in the particular case, identify the direct and indirect consequences of a conviction and determine whether those consequences would be out of all proportion to the gravity of the offending.
[8] In terms of assessing the gravity of the offence, I note, first, that the offending, as it is described in the summary of facts, is relatively minor. It involved a push, albeit a push strong enough to cause the complainant to fall to the ground. There was bruising but no significant or long lasting injury. However, the gravity of the offending is to be considered more widely than the narrow circumstances of the
incident itself. I note Miller J’s observation in Delaney & Ors v Police: [1]
... “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. ...
[1] Delaney & Ors v Police HC Wellington CRI-2005-485-2228, 22 April 2005.
[9] In the present case, a significant issue is the fact that in 2006 Mr O was charged with assaulting Ms Terakia and was discharged without conviction. Further, Mr O has had the benefit of diversion in 2004 in relation to a wilful trespass charge and a discharge without conviction in 2000 in relation to a shoplifting charge. This history, particularly the previous assault on Ms Terakia, are matters of concern.
[10] As against these factors Ms Donald points out that the previous assault for which Mr O was discharged without conviction caused Mr O to undertake a programme to deal with his alcohol problems. He found that of assistance but that programme did not address his anger management problem. That, however, has now been addressed through his completion of the Man Alive Living Without Violence programme. As a result, Ms Donald suggested that the Court could have greater confidence in the future regarding Mr O ’s conduct.
[11] Whilst completion of the Living Without Violence Programme is a very positive step and Mr O is to be commended for undertaking that, it only reduces the culpability slightly. I am, unfortunately, looking at a man who has now assaulted his partner on two occasions and, further, has committed other, minor, offences. For what were undoubtedly good reasons in each case, he has not faced a conviction for any of his conduct but there comes a point at which such a history does give rise to concern.
[12] I turn then to identify the direct and indirect consequences of a conviction. Mr O has identified as possible consequences of a conviction difficulty in obtaining employment in the area of social work and, as an indirect consequence, further hardship for his family who depend on him financially. Mr O does presently have part-time employment in the social services area and is, apparently, regarded highly by his employer. He wishes to obtain formal qualifications in this area so that he can obtain full-time work. However, he is very concerned that even if he were to obtain qualifications, there would be a barrier to further employment as a result of this conviction.
[13] There is, undeniably, some risk that Mr O will face difficulties in obtaining full-time work with a conviction for assault. On the other hand, he has not
placed before the Court any firm evidence that this will be the case. In any event, he has available to him his good record with his present employer and it is just as likely that, if he remains conviction free, by the time he completes any study the current conviction will have lessened in significance to a potential employer.
[14] In the absence of any specific risks to his employment at present and in light of the factors he has in his favour, I am not persuaded that the consequences of a conviction would be out of all proportion to the gravity of the offending. In reaching this view I also take into account the importance that potential employers have a right to know the character of the person they are employing, particularly if the area of employment that is chosen is one that involves the care of vulnerable people. I do not consider that a conviction would be out of proportion to the gravity of the offending.
[15] The appeal is dismissed.
P Courtney J
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