Parker v Police

[2016] NZHC 2524

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-66 [2016] NZHC 2524

BETWEEN

TIMOTHY CALLUM PARKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 October 2016
Counsel:	A Courtney and V E Thursby for Appellant J D Slankard for Respondent
Judgment:	21 October 2016

JUDGMENT OF WILLIAMS J

Introduction

[1]      Mr Parker pleaded guilty to a charge of male assaults female in relation to his partner.  On 13 July 2016, Judge Mill refused to discharge him without conviction.1

Mr Parker appeals that decision.

[2]      Since the conviction, Mr Parker has been dismissed from his employment because of his conviction.  He seeks leave to provide evidence of this.  This is not opposed.  Leave is granted accordingly.

Facts

[3]      The facts are as follows.  Mr Parker and the victim had been in a relationship for three months, and had lived together as flatmates for two years.  On 26 October

2015 at around 8 pm, Mr Parker and the victim were at home, sitting at the kitchen table together.   He became angry with her and slapped her several times on both

sides  of  her  face.    He  grabbed  her  hair  and  held  her  head  for  approximately

1      Police v Parker [2016] NZDC 13142.

PARKER v NEW ZEALAND POLICE [2016] NZHC 2524 [21 October 2016]

10 seconds.  He then slapped her again on the side of the face.  He released her hair, then pushed her head downwards holding it below the level of the table.  He pushed her off the chair and she fell onto the ground.  She sustained a black eye and several scratches to the face and neck.

District Court decision

[4]      Judge Mill set out the test for discharge without conviction and also noted the courts’ reluctance  to  interfere  with  employment  processes  as  to  fit  and  proper character.  He noted that Mr Parker is a qualified social worker but not registered. He was working in mental healthcare.

[5]      As to the gravity of the offending, Judge Mill noted the early guilty plea and Mr Parker’s explanation of the pressure on him and his own mental health, which had worsened at the time.  Mr Parker described it as a one-off incident, but the Judge noted the victim had said in her victim impact statement that it was not the first time she had been assaulted by him.  Mr Parker had addressed his offending by enrolling in counselling and meeting with a social worker and clinical psychologist.   The psychologist provided a letter which noted that Mr Parker suffers from schizophrenia and panic disorders.  The Judge noted the psychologist’s advice that the offending was “possibly due to medication issues that were not his doing”.  The Judge then found that it was a “relatively serious assault of its sort”, because it was sustained, took several forms, and resulted in some injury.

[6]      As to consequences, the Judge noted that Mr Parker had been working for Pathways in the community mental health team for eight years.   He was worried about being dismissed as a result of the conviction.  He was also hoping to register as a social worker and was concerned about the effect of a conviction on that process. The Judge noted registration requires the Social Workers Registration Board to be satisfied that an applicant is fit to be registered.  A conviction would be taken into account, but is not a bar to registration.   The Judge found that the assault was something that the Board should be aware of should there be an application for registration.  And as to his current employment, he noted that although a criminal conviction could be a ground for termination, his employment contract set out a

procedure which involved an opportunity for the employee to comment on the allegations.  Accordingly, the Judge found that given the mitigating factors, it was “by no means certain or even probable” that he would lose his employment.

[7]      Accordingly, the Judge found that the consequences regarding employment were more appropriately dealt with by the relevant authorities.  The application for discharge was refused. He was convicted and fined $300 plus $130 Court costs.

Appellant’s submissions

[8]      Counsel submitted that:

(a)      The Judge overstated the gravity of the offending:

(i)he  must  have  been  swayed  by  an  irrelevant  consideration, namely the victim’s view of Mr Parker’s mental health at the time and her statement that there had been previous assaults;

(ii)      in other cases where the offending was similarly serious, or more serious, a discharge was granted; and

(iii)      there were numerous mitigating factors in this case.

(b)      Although the Judge recognised the likely serious consequences for

Mr Parker, he did not give them sufficient weight, and:

(i)was wrong to consider that the employer was best placed to assess mitigating factors;

(ii)      failed to take into account the effect that a conviction could have on Mr Parker’s mental health.

(c)      The Judge erred in weighing the gravity of the offending against his own  view  of  the  potentially  serious  consequences.     When  the offending is correctly assessed as low to moderate, the consequences

of  a  conviction  are  out  of  all  proportion  to  the  gravity  of  the offending.  And the consequences would still be out of proportion to the gravity even if Judge Mill’s assessment of the gravity was correct.

Crown submissions

[9]      Counsel submitted that:

(a)      The cases cited by the appellant are of little assistance and do not undermine the Judge’s reasoning in this case.

(b)The Judge was wrong to refer to the victim’s statement that it was not the first time Mr Parker had assaulted her; however, it is clear from the sentencing notes that the Judge did not factor this into his assessment of the gravity of the offending.

(c)    The Judge appropriately acknowledged the “many mitigating circumstances” present, and these do not undermine the assessment of the offending as relatively serious.

(d)The  Judge  was  correct  to  leave  the  consequences  to  Mr  Parker’s employer and the Social Workers Registration Board.   He will have the opportunity to satisfy the Board that he is fit and proper, despite the conviction.  Similarly, Pathways also had an interest in knowing about the conviction, and the fact that it has now followed its process and terminated the employment suggests the offending was plainly relevant to his employment there.

(e)      There  was  no  evidence  to  suggest  that  the  consequences  of  the conviction  would  have  an  adverse  effect  on  Mr  Parker’s  mental health.

(f)Accordingly, there was no error in Judge Mill’s ruling undermining his conclusion that the consequences of a conviction would not be out of all proportion to the gravity of the offending.

Analysis

Approach to discharge without conviction

[10]     It is well established that s 107 is a threshold which must be met before discretion can be exercised under s 106.   It requires the court to be “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.

[11]     The approach to s 107 is as follows: 2

(a)      First, when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender.

(b)Second, the court should identify the direct and indirect consequence of conviction for the offender.

(c)      Third, the court must assess whether those consequences are out of all proportion to the gravity of the offence.

[12]     If the test in s 107 is met, then there is a residual discretion in s 106 as to whether to grant the discharge.   This will generally be exercised in favour of the offender.3

[13]     Because  this  is  an  appeal  against  the  weighing  under  s  107  rather  than discretion under s 106, it is a general appeal by way of rehearing.

Gravity

[14]     Counsel are agreed that the victim’s comment in the victim impact statement that it was not the first time Mr Parker had assaulted her was irrelevant.4   However, whether the Judge did take it into account requires more careful analysis.   The context of him mentioning an allegation of an earlier assault was that Mr Parker

2      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142; DC (CA47/13) v R [2013] NZCA 255.

3      Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].

4      See for example R v Hopkirk (1994) 12 CRNZ 216 (CA).

described the assault for which he was to be sentenced as a one-off incident.5   The Judge said that the victim “would not agree with that” and that her victim impact statement suggested it was not the first assault.6   Later, when evaluating the gravity of the offending, the Judge did not attempt to resolve the apparent dispute. Any such assessment would have been impermissible anyway.  But, having raised the issue, it seems to me inevitable that it would have been in the back of the Judge’s mind when assessing just how deserving the appellant’s case was.   It would be difficult to exclude it because the existence of a pattern of violence, or perhaps even the risk of such a pattern, would go directly to the merits of the application.  The Judge having

mentioned the matter, there is at least a real possibility that it was a factor in his assessment of the application.  It must be firmly put to one side in my consideration of this appeal.

[15]     Counsel for Mr Parker referred to a number of other cases where a discharge was granted.  In my view Crown counsel is correct in submitting that most are not analogous.  Tahitahi v Police7 and Nash v Police8 were less serious, because they did not result in injuries to the victim.  T v Police involved the appellant striking his son with a belt once around the legs and once around shoulders, resulting in redness and bruising.9     Crown counsel submitted that this is not relevant because it is not an assault against a partner.   I am not at all convinced that that makes it irrelevant; however, the offending in that case is certainly less serious than in the present one. This case involves sustained attacks, including one to the head which resulted in a black eye.

[16]     Oxenham v Police was, in my view, an example of offending of a broadly similar category in terms of gravity.10    There the appellant pushed the victim over, punched her in the leg several times with a closed fist, punched her in the back several times, and then in the head several times.  He then grabbed her by the head and pulled her hair, tearing some of it out.  She suffered bruising and swelling to her

5      Parker, above n 1 at [9].

6 At [10].

7      Tahitahi v Police [2012] NZHC 663.

8      Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.

9      T v Police [2012] NZHC 1426.

10     Oxenham v Police [2015] NZHC 2156.

face  and  arms,  a  cut  to  her  face,  and  lost  some  hair.    This  was  assessed  as

“moderately serious”.  I agree that this categorisation was correct on those facts.

[17]     In Tupu v Police the appellant was discharged on appeal on one count of injuring with intent to injure.11   She attacked the victim in a bar early on a Sunday morning.   She pushed the victim backwards in her seat and against the wall with both hands, grabbed her by the hair, dragged her forward onto the floor, held her by the hair, lifted her face off the floor, shoved her face into the floor, grabbed her hair again, struck her in the back of the head, grabbed her hair again and struck her on the back of the head.  She was restrained twice but broke free and continued to attack the

victim.   The victim suffered a large number of both physical and psychological injuries.  The gravity of this offence was considered high; however the appellant was discharged because she wished to join the Air Force and a conviction meant a year’s stand-down, or possible inability to join at all.   She had taken part in restorative justice, paid reparations, and the victim supported the discharge application.

[18]     Crown counsel submitted that as this case did not involve domestic violence, it is of little relevance to this appeal.   I do not agree: the domestic context of interpersonal violence may be an aggravating factor but it does not mean that non- domestic violent offending is totally irrelevant.  What Tupu illustrates, in my view, is that more serious offending than in the present case can, if the circumstances are deserving  enough,  result  in  a  discharge.    Of  course,  there  were  a  number  of mitigating factors in that case too as well as serious consequences.   While s 106 discharge cases may often share similar factual elements, it is often the combination that is decisive one way or the other, and that is why, as the authorities constantly reiterate, every case will turn on its own facts.

[19]     Mitigating  factors  relevant  to  both  the  offending  and  the  offender  are properly to be taken into account when considering the gravity of the offence.  In this case, counsel submits that the mitigating factors are: early guilty plea, remorse, previous good character, mental health issues at the time and the remedial steps taken to address the causes of the offending.   The Crown does not dispute these factors, but says that they were appropriately taken into account by the Judge, and

11     Tupu v Police [2014] NZHC 743.

that  in  any  case,  they  only  result  in  a  modest  reduction  to  the  gravity  of  the offending, and do not undermine the assessment by the Judge as a relatively serious case of its kind.

[20]     Where this offending perhaps differs from Oxenham in terms of gravity is that in that case the perpetrator came home after a self-inflicted bout of drinking with friends and attacked his wife while intoxicated.  In this case, the appellant, according to his psychologist, may have been emotionally affected by having been prescribed the wrong medication at the relevant time.   This is a potential mitigating factor, given the behaviour may have been the unintentional result of medication, although without proper evidence on the point no firm finding in this regard is possible.  Of course, it is also worth noting that the question of gravity relates to the offence committed, not where the offence sits relative to other offending of the same type.12

But this does not necessarily change the characterisation of the offending.

Consequences

[21]     The test for consequences is not that they “would inevitably or probably occur”, but rather that there is a “real and appreciable risk that such consequences would  occur.”13     And  the  consequences  of  a  conviction  on  finding  future employment  generally  can  be  taken  into  account.14      However,  the  Courts  are generally reluctant to grant a discharge when doing so would result in relevant information being withheld from a professional body, because there is public interest in the body knowing about the conviction and exercising its discretion accordingly.15

Nonetheless, it is still for the Court to weigh consequences and in some cases a discharge will be granted despite its suppressive effect.16    Conversely, the case for discharge may not be as strong when the professional body (or employer) will know

about the offending in any event.17

12     Z v R, above n 2 at [31].

13     Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].

14     Tahitahi v R, above n 7 at [25] and [31].

15     Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].

16     See for example: Phipps v Police [2015] NZHC 614, and HM v Police [2015] NZHC 1910.

17     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [25].

[22]     The Judge considered that the question of registration as a social worker was best left to the Social Workers Registration Board.   He felt constrained to enter a conviction in order to ensure the assault was properly before the Board if and when the appellant applied for registration.  This view seems to be in error.  According to the Ministry of Justice’s website,18  organisations providing services to vulnerable people can ask the police to “vet” the applicant.  This process digs a little deeper. Police  checks  only  disclose  convictions,  but  police  vetting  discloses  all  police

contact with the person vetted.  This is done at the request, and with consent of, the applicant.19     The form specifically advises the applicant that discharges without conviction are disclosed, as are (for example) any family violence incidents whatever the outcome, and any withdrawn charges or acquittals.

[23]     As to the appellant’s then current employer, the Judge appeared genuinely optimistic that the employer would take into account the mitigating factors and Mr Parker would not be dismissed,20 but it transpires this optimism was misplaced. And it seems from the dismissal letters that the dismissal reflected fears that the reputation of the company would be tarnished by the conviction, as well as safety concerns.  That is, the appellant may not have been dismissed if the discharge had been granted.  But in any case, now that he has been dismissed, I must confront a

different question on appeal; that is what the consequences are on future rather than present employment.

[24]     As to mental health, the consequences of a conviction on the appellant’s mental  health  can  be  considered.21      However,  although  there  is  evidence  about Mr Parker’s mental health generally, there is no evidence in relation to whether, and if so how, his mental health has been or will be affected as a consequence of the conviction.

18     Ministry of Justice “Police clearances and vetting” < form NZPVS-SC-09/15 accessed from New Zealand Police “Vetting”

< above n 1 at [19]-[20].

21     Martin v Police HC Wellington CRI-2009-485-82, 18 February 2010 at [25].

Weighing

[25]     Overall, I am of the view that the gravity of the offending in this case is at the lower end of moderately serious.  That is, of the same category but less serious than Oxenham, for the reasons discussed at [20].

[26]     As to consequences, the fact that the subject incident will be before the Board whether a discharge without conviction is granted or not, produces two conflicting results: first, a conviction is not required to ensure the assault is disclosed to the Board (a fact of which the Judge seemed unaware); but second, the effect of this is, ironically, the comparative consequences of conviction or discharge are not significantly different. A discharge will simply provide a signal to the Board that the sentencing Judge thought the incident should not affect registration.  But given the incident itself will be before the Board, the view of a judicial non-expert is probably of little probative value.

[27]     In my view, while s 106 allows for Judges to control, for the benefit of offenders, the flow of prejudicial information about them to agencies, organisations and employers, it is not our role to tell such groups or individuals how they should exercise their decision-making power. That would be to usurp their mandate.

[28]     As to prospective social worker employers, they too may have access to non- conviction information if they qualify as agencies entitled to obtain a police vetting of the applicant.   If however, only police checks are obtained, and non-conviction information is not available to such employer, there is a good reason to decline a discharge to ensure that they are aware of the offending, except in the clearest of cases.  Social workers work closely with vulnerable people: the young and the old, the mentally unwell, the damaged, injured and needful.   Social work employers should know when prospective employees have personal issues that cause them to struggle with intimate relationships if, in the past at least, such difficulties have caused that prospective employee to become violent.  Vulnerability in clients is too great to suppress such relevant information.  It is, in the end, the very nature of the work that makes disclosure necessary despite the potential impacts on the appellant himself.

[29]     I  have accordingly  reached  two  conclusions.   First, that  if the  Board or prospective employers are made aware of this incident even if there is a discharge, then the argument in favour of discharge in undermined.  Second, if they are not, the importance of ensuring that prospective social work employers are made aware of the offending outweigh the consequences for the appellant in this case.  The appeal must be dismissed accordingly.

Williams J

Solicitors:

Public Defence Service, Wellington

Crown Solicitor’s Office, Wellington