P v Police

[2025] NZHC 1718

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-483-000003 CRI-2025-483-000004

[2025] NZHC 1718

BETWEEN

P

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 May 2025; further submissions 28 May 2025
Counsel:	R N Zwaan for Appellant H Bullock for Respondent
Judgment:	26 June 2025

JUDGMENT OF LA HOOD J

(Appeal against conviction)

A delayed challenge to convictions for breaches of a protection order

[1]    P was convicted in 2022 and 2023 of breaching a protection order by contacting his estranged wife.1 He says that there are exceptional circumstances that justify the quashing of his 2022 conviction despite his guilty plea, and that he should be discharged without conviction for the 2023 offending. He applies for leave to appeal his convictions out of time.2

1      The first charge was filed under the Family Violence Act 2018, ss 90(b) and 112(1)(a): maximum penalty of three years’ imprisonment. The second charge was laid under the Family Violence Act, ss 90(a) and 112(1)(a): maximum penalty of three years’ imprisonment.

2      Criminal Procedure Act 2011, ss 231(2)–(3).

P v NEW ZEALAND POLICE [2025] NZHC 1718 [26 June 2025]

[2]    P seeks to be acquitted of the first charge. He contends that a miscarriage of justice occurred primarily because his lawyer failed to properly advise him that he had a strong defence to the charge. Alternatively, he submits that his lawyer should have applied for a discharge without conviction.

[3]    P also seeks to be discharged without conviction in respect of the second charge. He contends that if he is acquitted on the first charge, a discharge without conviction is appropriate on the second charge. However, if he is not acquitted on the first charge, he submits that a discharge without conviction is appropriate in respect of both charges.

[4]    For reasons that follow, I grant leave to appeal out of time but dismiss the appeal. I do not consider there are any exceptional circumstances that would justify allowing the appeal on the first charge. There was no counsel error that has led to a miscarriage of justice as P did not have a strong defence to the charge and made an informed decision to plead guilty. I am also not satisfied that a discharge without conviction should be granted in respect of either charge, as the consequences of conviction are not out of all proportion to the gravity of the offending.

Background

[5]    P is a lawyer. At the time this appeal was heard, P was not working as a lawyer as the New Zealand Law Society was considering whether he should have his practising certificate renewed in light of his offending. Ms Zwaan, for P, has subsequently confirmed that P has now obtained a practising certificate and has tentative employment opportunities in Auckland, Wellington, Manukau, Palmerston North, and Tauranga that are dependent on P completing a duty solicitor course.

[6]    In June 2022, protection orders were issued in the Whanganui Family Court. P was the respondent and the protected persons included Q (P’s then wife), his three children, and his niece who resided with the family.

[7]    A  Family  Court  parenting  order  was  also  in  place  at  this  time.   On    18 August 2022, the parenting order was amended to require P to use a breathalyser to take a reading of the alcohol content of his breath and to send a time stamped video of

the result to Q. P was required to show on video the test being undertaken at the beginning and end of any face-to-face contact with the children.

[8]    The first charge relates to an incident on 16 October 2022, when P sent a video to the complainant that lasted twenty-nine seconds and showed diary pages alongside audio of him taking a breathalyser test.3 The video did not depict P’s face and the diary page contained P’s notes relating to the Family Court proceedings. These notes included that P intended to make a complaint to the Law Society about Q for breaching confidentiality and breaching her duty to the Court (although Q is not expressly named, the clear inference is that the intended complaint relates to her). There was also a subsequent video sent later the same day that also did not depict P completing the test, but did show a zero reading on the breathalyser at the end of the video. The image shown throughout most of the second video was Father’s Day cards.

[9]    Police opposed bail due to a history of family harm occurrences and Q expressing extreme fear of P due to the deterioration in his behaviour. The law firm where P was employed at the time acted for him in respect of a bail application and instructed a barrister, Richard Leith, to appear for him. Bail was declined by a Justice of the Peace on 20 October 2022. The bail application was renewed the following day with a proposal that P reside in Auckland with a friend. The Justice of the Peace considered this proposal sufficient to address the concerns about Q’s safety and granted bail.

[10]   Following release on bail, P instructed Mr Leith directly to appear for him at the next hearing on 15 November 2022. At that hearing, P entered a guilty plea and was sentenced by Judge Carter  to  come  up  for  sentence  if  called  upon  within 12 months.4 Judge Carter also suppressed P’s name, primarily to protect his family.5

[11]   The second charge was a representative charge that alleged P psychologically abused Q between 7 December 2022 and 17 February 2023. P instructed a different lawyer, Debbie Goodlet, to represent him on this charge. There were initially three

3      Police v [P] [2022] NZDC 22700 at [2] [First Sentencing Notes].

4 At [17].

5 At [12].

charges of breach of a protection order in relation to these allegations, but negotiations resulted in a representative charge being substituted on the basis a guilty plea would be entered.

[12]   The following description of the offending giving rise to the second charge is taken from the summary of facts.6 There had been 11 family harm incidents reported to police. On 6 December 2022, a friend of P called emergency services expressing concern that P was suicidal. When the police attended his home, they found two of his children and his niece home alone, but P arrived shortly afterwards. The police uplifted the children and returned them to Q. On 7 December arrangements were made for P’s young niece to attend a family dinner at P’s address. It was arranged that she would be returned to Q’s address prior to bedtime by dropping her at the letterbox of her home. She was not returned as agreed and P had put her to bed and kept her overnight. Q was extremely concerned about the failure of P to abide by the arrangement.

[13]   On 11 December 2022, P arrived at Q’s home to collect the children by waiting at the letterbox. He had failed to provide the agreed breathalyser test, so Q told him the children would not be going with him. He became angry and said he would come and get his son from the house but instead drove away. Shortly after, he sent the breathalyser test result, but he was not shown on the video conducting the test. At about 2.00 pm, P collected his daughter and returned her at about 6.00 pm without communicating with Q. A breathalyser test compliant with the parenting order was never provided.

[14]   On 16 February 2023, P parked near Q’s work address and near where she usually parked. At about 2.00 pm while sitting in her car Q noticed P walking past her car and work building. On 17 February 2023, P again parked in the same location, which Q noticed when arriving for work at about 8.00 am. She took a photograph showing the amount of empty parking available on the street at a greater distance from her work address.

6      P was sentenced by Judge Krebs on 13 June 2023 in respect of this charge and two driving related convictions: Police v [P] [2023] NZDC 29710. However, there was only a partial audio recording of the decision. Accordingly, I proceed on the basis of the other materials before me.

[15]   P also faced charges of driving with excess blood alcohol and dangerous driving relating to an incident on 31 March 2023. He had a blood alcohol reading of over 209 milligrams of alcohol per 100 millilitres of blood (the legal limit for criminal liability being 80 milligrams) and lost control of his car due to excessive speed in a road works area. The car went up an embankment and rolled over, causing it extensive, irreparable damage.

[16]   P pleaded guilty  to  the  charges.  He  was  sentenced  on  13 June 2023  to 18 months’ intensive supervision. He was granted name suppression on 21 June 2023, again primarily to protect his family.7

Leave to appeal

[17]   The appeal was filed on 24 December 2024, almost 18 months out of time in respect of the 2023 conviction and two years out of time in respect of the first conviction.8 P decided to file the appeal following his successful acquittal at a jury trial in September 2024 on charges of breaching the protection order. He says that it is only at this point that he fully understood that he had a defence to the charges and should not have been convicted. As the respondent has not opposed leave being granted, I intend taking a pragmatic approach by granting leave and dealing with the merits of the appeal. This is despite some concern that the reasons for the delay would be unlikely to meet the threshold for granting leave.9

Legal principles

General appeal against conviction

[18]   P appeals under s 229 of the Criminal Procedure Act 2011 (the Act).  Under  s 232(2)(c) of the Act, I must allow P’s appeal if I am satisfied that a miscarriage of justice has occurred for any reason. This requires assessment of “whether something

7      Police v [P] [2023] NZDC 12815.

8      Criminal Procedure Act 2011, s 231(2): a notice of appeal must be filed within 20 working days after the date of the sentence for the conviction appealed against.

9      See discussion in Rebecca Atkins and others (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA231.02(3)]. P realising that he had a greater chance of successfully defending these charges than he initially appreciated because of his successful defence of similar charges would be unlikely to be an adequate explanation for the delay. The requirement for justification increases the longer the delay elapsed: Neilson v R [2015] NZCA 469 at [4].

material has gone wrong… beyond the sufficiency of the evidence”,10 which necessitates a broad approach.11

[19]A miscarriage of justice is defined as follows:12

(4)… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[20]   A miscarriage of justice does not encompass inconsequential mistakes or irregularities.13 For a “real risk” to be established, there must be “a reasonable possibility that a… more favourable verdict… might have been delivered if nothing had gone wrong”.14 In other words, this requires me to assess first, whether something has gone wrong in a relevant way and second, whether that error has led to a real risk that the outcome of the trial was affected.15

[21]   As the Court of Appeal has recently confirmed, it is only in exceptional circumstances that a Court will allow an appeal against conviction following a guilty plea.16

[22]   There are four categories in which the Court will, generally, observe a miscarriage of justice when an appellant has pleaded guilty. Three of these were usefully summarised in Watts v R:17

(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

10     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25] as cited in Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [45].

11     Misa v R, above n 10, at [39].

12     Criminal Procedure Act 2011, s 232(4).

13     R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

14     R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], per Tipping J and Haunui v R

[2020] NZSC 153, [2021] 1 NZLR 189 at [67].

15     R v Sungsuwan, above n 14, at [110].

16     Wharekura v R [2025] NZCA 146 at [43].

17     Watts v R [2011] NZCA 41 at [19]–[21] citing R v Le Page [2005] 2 NZLR 845 (CA).

(b)the appellant could not in law have been convicted of the offence charged;

(c)the plea was induced by a ruling which embodied a wrong decision on a question of law.

[23]Further in Merrilees v R, the Court said:18

[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

[24]   However, the categories of exceptional circumstances are not closed or complete.19

Discharge without conviction

[25]   The Court’s power to discharge a person without conviction, when they have pleaded guilty to a charge, is provided for in s 106(1) of the Sentencing Act 2002. Such a discharge is deemed to be an acquittal.20 Section 107 of the Sentencing Act 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.

[26]   The Supreme Court in Bolea v R discussed the analysis under s 107 of the Sentencing Act as comprising three stages:21

[39]     The case before us proceeded on the basis that the decision whether to grant a discharge without conviction under s 107 is to be determined in the way identified by the High Court. That is, the court considers the aggravating and mitigating features of the offence and of the offender to assess the gravity of the offending. The court then identifies the direct and indirect consequences of conviction. The next step is to evaluate whether those consequences are out of all proportion to the gravity of the offence. If the court decides that the consequences of conviction are out of all proportion to the gravity of the offending, the court must still consider whether to grant a discharge without conviction; although the current approach is that it is rare to decline to do so in that situation.

18     Merrilees v R [2009] NZCA 59 at [34].

19     Whichman v R [2018] NZCA 519 at [36].

20     Sentencing Act 2002, s 106(2).

21     Bolea v R [2024] NZSC 46, [2024] 1 NZLR 205.

[27]   Thus, a Court considering whether to discharge a defendant without conviction should follow this three-step approach:22

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identification of the direct and indirect consequences of conviction; and

(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

[28]   A “real and appreciable risk” that the consequence will arise is all that is needed.23

[29]   An appeal against a refusal to grant a s 106 (without an appeal against sentence in the event that it is unsuccessful) is “purely against conviction alone”.24 First appeals against conviction are governed by s 232 of the Act. As the Court of Appeal observed in Jackson v R:25

…the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred ‘for any reason’ if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.

[30]   Whether the test in s 107 is met is not a matter of discretion but judicial evaluation,26 which means the appellate principles set out in Austin, Nichols & Co Inc v Stichting Lodestar apply.27 Once the Court is satisfied that the s 107 threshold is

22     At [39]; see also Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

23     DC (CA47/13) v R [2013] NZCA 255 at [43].

24     De Souza v R [2024] NZCA 637 citing Jackson v R [2016] NZCA 627 at [8]–[9] and [15] and

Charteris v R [2024] NZCA 556 at [9].

25     Jackson v R, above n 24, At [12].

26     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

27     Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].

met, it may exercise its discretion under s 106 to grant a discharge (although it is rare to decline to do so).28

The parties’ cases

P

[31]   P filed two affidavits dated 16 December 2024, which detail the circumstances of offending and the legal advice he received at the time. Mr Leith and Ms Goodlet, following provision of appropriate waivers, filed affidavits in response. I have also been provided with various contemporaneous documents relating to that legal advice and the District Court proceedings.

[32]   P and Mr Leith were cross-examined before me, but Ms Goodlet was not required for cross-examination as P (at least pre-hearing) did not seek acquittal on the 2023 conviction. Rather, he sought a discharge without conviction on the basis that if he is acquitted, or discharged, on the first charge, the appropriate outcome is a discharge without conviction on the second charge. He did not seek to cross-examine Ms Goodlet as he accepts Ms Goodlet cannot be criticised for failing to provide advice on a s 106 discharge given his existing conviction on the first charge. P sought to raise in his oral evidence a failure by Ms Goodlet to provide adequate advice about possible defences to the second charge. However, his counsel, Ms Zwaan, said this did not accord with her instructions and accepted this point could not be advanced in the absence of Ms Goodlet being subject to cross-examination. I therefore put any such allegations to one side.

Acquittal on the 2022 conviction

[33]   P’s case for acquittal on the first conviction, despite his guilty plea, is that he did not appreciate the available defences due to inadequate advice from Mr Leith. He considers that he has a strong defence to the charge and if it had been properly explained to him, he would not have pleaded guilty. He contends that in sending the videos, he was doing no more than attempting to comply with the parenting order. He felt he could not show his face on them because he had a black eye from an altercation

28     Doyle v R [2022] NZCA 307 at [15].

the previous evening, and the diary entry and Father’s Day cards were depicted by accident when he turned the phone camera away from his face. He could not therefore be in breach of the protection order because ss 90 and 96(1)(b) of the Family Violence Act 2018 provide that contact permitted by a parenting order will not be in contravention of a protection order.

[34]   P’s affidavit describes a serious mental health crisis at the time. He had attempted suicide and been admitted to a psychiatric ward. I have been provided with P’s mental health records for the relevant period. Mr Leith’s evidence was that he was aware of these issues and had obtained P’s mental health records while acting for him. P accepted in evidence that his mental health issues did not prevent him from understanding the proceedings or making appropriate decisions about them. Mr Leith also confirmed this was the position. P’s mental health issues cannot therefore be a basis for quashing his conviction.

[35]   I deal next with the contention that P had a strong defence to the charge. It is based on the incorrect premise that the prosecution case was founded entirely on the allegation that his failure to show himself on the video was in breach of the parenting order, and therefore the contact was unauthorised. It is clear from the prosecution summary of facts that this was not the essence of the case. The summary of facts states that “the video shows the defendants (sic) open dairy (sic) with comments regarding their separation, house sale and complaints to the law society. The contents in the diary amounts (sic) to psychological abuse to the victim”. The clarity of the prosecution case is also reflected in Mr Leith’s  memorandum seeking  bail dated    21 October 2022, which states that P is charged with “breaching a protection order by sending two videos to the complainant amounting to psychological abuse”.

[36]   Ms Zwaan points out that the charging document alleges unauthorised contact under s 90(b) rather than psychological abuse under s 90(a). But the basis of the charge could not be clearer from the summary of facts, which means that the interests of justice would clearly favour amendment of the charge.29 However, I doubt amendment is necessary, as contact that included intentionally depicting material in videos to

29     Criminal Procedure Act 2011, s 133.

psychologically abuse a protected person, or even merely upset the protected person, could hardly be authorised contact under the parenting order and s 90(a).

[37]   I do not accept that P has a strong defence to the allegation that he was deliberately depicting the items in these videos. I have viewed the videos. It is completely implausible that P accidentally filmed a page of his diary dated 1 October (over two weeks prior to the date of filming) that happened to contain notes about the Family Court proceedings and his intention to complain to the Law Society. The camera is focused on the diary page in a way that makes it clearly legible throughout the 29 second video and there are no other items visible (except part of a place mat). It is also completely implausible that P accidentally depicted the Father’s Day cards in the second video – they are the only items visible throughout the 28 second video (until the breathalyser reading at the end). It is beyond coincidence that both videos accidentally depict such items. P did not help his position by initially denying that the reference to a complaint to the Law Society related to an intended complaint about Q when asked about it in cross-examination before me. He then went on to state that it did relate to Q when I asked him about it.

[38]   The allegation of inadequate advice about possible defences somewhat falls away given my finding about the strength of any defence. It is premised on the assumption that Mr Leith should have taken further steps to investigate and advise P about his purportedly strong defence, and a failure to do so therefore amounts to exceptional circumstances and a miscarriage of justice.

[39]   In any event, I consider there was nothing inadequate about Mr Leith’s advice. There is nothing in the point that Mr Leith did not get written instructions to plead guilty. P signed a letter of engagement dated 9 November 2022, which expressly stated that Mr Leith’s instructions were to enter of plea of guilty on 15 November 2022. It further records that he was instructed to seek final resolution of the proceedings including sentencing on the same day if required.

[40]   This contemporaneous signed letter reflected the evidence I heard that P was very anxious to have the proceeding resolved swiftly so he could return to Whanganui from Auckland to enable him to return to work and have contact with his children.

Mr Leith had clear instructions from P to have matters resolved as quickly as possible for this reason. There was therefore nothing inadequate about his advice that the best way to achieve this was pleading guilty on 15 November 2022 and being sentenced on the day so that P would be able to return to Whanganui.

[41]   It is clear from the evidence I heard that P was aware that he could defend the charge but knew this would take considerable time and decided he did not wish to do so. As already noted, it was also clear what the police were alleging, and Mr Leith understood that P’s defence would be that the depiction of the items in the videos were accidental. As I have already said, P did not have the strong defence to the charge he now asserts.

[42]   My assessment of P’s evidence is that he regrets pleading guilty to the charge because he now has personal experience of successfully defending breach of protection order charges. However, that is not a basis to find exceptional circumstances or a miscarriage of justice that requires the quashing of the conviction. There was no failure to adequately advise P that he had a strong defence to the charge (he did not), which has induced a guilty plea on an incorrect basis. It was alleged that P had deliberately depicted items that would upset Q in the videos, and he knew that he did not have a strong defence to this allegation. He wanted matters resolved quickly, and having received sound advice, he decided to plead guilty to achieve that outcome.

First conviction – discharge without conviction

[43]   P criticises Mr Leith for providing inadequate advice about the possibility of applying for a discharge without conviction on the first charge. However, that issue is academic because the question for me on appeal is whether the test for a discharge without conviction is now met irrespective of Mr Leith’s advice at the time.30 For completeness, however, I consider it was reasonable for Mr Leith to advise P that the

30 For the same reason, there cannot be a miscarriage of justice because Mr Leith did not clearly advise P that the delay that would be caused by an application for a discharge without conviction would be shorter than the delay caused by a trial (as Ms Zwaan submitted). In any event, it must have been obvious to P, as a qualified lawyer of considerable experience (albeit not in criminal matters), that pleading guilty and seeking a discharge would not cause the same delay as a full trial.

expectation in Whanganui District Court for discharge applications to be made in writing with supporting evidence meant this would further delay the case. Similarly, I consider that it was reasonable for him to advise that the Law Society would consider the low-level nature of the breach and the lenient sentence when deciding how it might impact when renewing his practising certificate. This advice is clearly supported by P having regained his practising certificate despite his second breach of protection order conviction and driving offences. In the knowledge of this position, again P freely decided he wanted to plead guilty to have matters resolved quickly.

Discharge without conviction for overall offending

[44]   I turn next to the issue of whether P should now be discharged without conviction on appeal. In the absence of a material error in Mr Leith’s advice having caused a miscarriage of justice, the appeal could only be allowed if I form my own view that the test in s 107 is met.

[45]   I received further submissions following the hearing on whether the second breach of protection order offence should be considered when determining whether a discharge without conviction is appropriate on the first offence.

[46]   In forming my own view about whether the test in s 107 is met, I must have regard to the gravity of the offending and the consequences of conviction. The gravity of the offending must be assessed by reference to both the aggravating and mitigating features of the offending and P’s personal aggravating and mitigating features.31 In my view, it would be artificial and wrong for me to attempt to form my own view on the s 107 test without having regard to all the material now before me as to the consequences of conviction and P’s personal circumstances. These matters necessarily include that  he has now been granted a practising certificate by the    Law Society and that his convictions include the second breach of protection order charge and the driving charges.

31     Bolea v R, above n 21, at [53].

Assessment of the s 107 test

[47]   Against that background, I turn to consider whether the test in s 107 is met in respect of the full extent of P’s offending.

[48]   Ms Zwaan submits that the direct and indirect consequences of conviction are out of all proportion to the gravity of the offence. Ms Zwaan submits that the gravity of the offending was moderate to low in that it involved a series of breaches of the protection order. These involved the videos sent by P and P parking his car near the complainant’s work so he could attend the gym and be able to get out of his car with an injured leg, which Ms Zwaan submits arguably is not a breach of the protection order. Further, there was a miscommunication over how his niece would be returned to Oranga Tamariki care following a visit. She submits that P communicated with Oranga Tamariki but did not receive a response to his text asking if he should wake her up to return her the night prior, and she was safely returned the following morning.

[49]   Ms Zwaan says that there was a real and appreciable risk that a conviction would have serious consequences for P’s future employment and travel prospects, alongside the stigma of a criminal record. Whilst P will still have convictions for drink driving, refusing to provide a blood specimen and dangerous driving, she emphasises that they are not violent in nature.

[50]   At the time of the hearing, Ms Zwaan contended that this risk had materialised because a letter from the Law Society, dated 19 November 2024, indicated that the Practice Approval Committee originally considered it appropriate to await the outcome of this appeal prior to making its final decision on P’s application for a practising certificate. The letter made clear that breach of a protection order is considered particularly serious, given it is a breach of an order of the Court by an Officer of the Court, as he was at the time. Ms Zwaan emphasised that P has now been sober for almost two years, having sought help, and that he would like to recommence his legal career.

[51]   Ms Zwaan submits that P has a bright future ahead of him that will likely continue if not marred by these convictions. Based on P’s potential to contribute to society, Ms Zwaan therefore seeks that I grant him a discharge without conviction.

[52]   P’s guilty pleas preclude me from considering matters that Ms Zwaan now says could have been a defence to the charges. The offending must be assessed on the basis of the agreed summaries of fact. I consider P’s overall offending is in the low to moderate range of culpability for offending of its type. Although the breaches of protection order are inherently serious, the individual instances of offending are at the lower end of the spectrum. However, the repeated and persistent nature of the breaches increases their gravity,32 as does the impact on the victim. Q’s victim impact statement described the offending as making her feel distressed, anxious, intimidated and threatened. She described the stress caused by P’s threat to report her to the Law Society (which would undermine her job) and that she had attended counselling and a family harm support group to deal with these issues.

[53]   Clearly, the main consequence of conviction advanced at the hearing is no longer relevant. The Law Society now accepts that P is a fit and proper person to practise law despite his convictions. He also has a number of tentative offers of employment conditional on completion of the duty solicitor course.

[54]   Accordingly, the submission that the consequence of a conviction is a loss of future career prospects is unsustainable. I accept that a decision that the offending warrants a conviction could have some impact on obtaining future employment as a lawyer. But I expect the employers who have made tentative offers of employment to P will place significant weight on the Law Society’s decision that P is a fit and proper person to practise law. They are also likely to consider the underlying offending more relevant than the fact of conviction. Also, any employer will have the benefit of the suppression orders in terms of any reputational impact in employing P.

[55]   In terms of the general impact or stigma of having these convictions, P will still be required to declare his other convictions. I have been provided with no evidence of the degree to which conviction on these particular charges will have a greater general impact on P (for example, on his ability to travel). While I accept that having convictions for breach of a protection order will likely lead to some increased

32     Mani v Police [2019] NZHC 3440 at [52]–[53].

scrutiny of his criminal history, this consequence of conviction is not out of all proportion to the gravity of the offending.

[56]   It follows that I am not satisfied that the consequences of conviction on these charges is out of all proportion to the gravity of the offending.

Result

[57]For these reasons, I grant leave to appeal but dismiss the appeal.

La Hood J

Solicitors:

Te Aro Law, Wellington for Appellant

Crown Solicitor, New Plymouth for Respondent