Parkinson v Police
[2015] NZHC 3272
•17 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-351 [2015] NZHC 3272
KIRI PARKINSON
v
NEW ZEALAND POLICE
Hearing: 14 December 2015 Appearances:
M Ryan for the Appellant
R Thompson for the RespondentJudgment:
17 December 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 17 December 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Meredith Connell, Auckland
PARKINSON v NEW ZEALAND POLICE [2015] NZHC 3272 [17 December 2015]
Background
[1] This is an appeal by the appellant, Kiri Parkinson, against the refusal to discharge her without conviction.
[2] The appellant was required, subject to a Family Court order, to give the complainant contact with their son. The appellant breached that Court order by not allowing contact to take place over the Christmas period of 2013/2014.
[3] On 31 August 2015, the appellant was convicted after a Judge-alone trial of one charge of breaching a parenting order without reasonable excuse.
[4] The Judge was satisfied that the appellant had understood the terms and conditions of the parenting order and had no intention of complying with the order. The Judge subsequently declined to discharge the appellant without conviction.
District Court decision
[5] The appellant has work experience in the hospitality industry and the childcare industry, and it was her evidence that the conviction would mean that she would not be able to get work in either of these industries or other industries since she is not trained in any other sort of work. In the Judge’s assessment, that was a general consequence of a conviction. The Judge noted the appellant already has a conviction for driving with excess breath alcohol from 2012 and rejected the submission on her behalf that traffic offences are distinct, holding that “[i]t is a
criminal conviction for all intents and purposes.”1
[6] The Judge was not convinced on the evidence before her that the current conviction would necessarily pose a barrier to the appellant in obtaining employment in the hospitality industry although she accepted that there was a question mark over
the childcare industry, noting that she had only worked very briefly in that industry.
1 Police v Parkinson [2015] NZDC 22191 at [19].
[7] Overall, the Judge did not consider the consequences of conviction were out of all proportion to the gravity of the offending. The Judge said this was a case where, as per her finding at the defended hearing, there was a direct and deliberate breach of a court order; the matter having been referred to the criminal prosecutor because of the direction of the Family Court Judge on what seemed to be a history or pattern of breaches of Family Court orders and directions.
Submissions
[8] Mr Ryan, for the appellant, submits the Judge was wrong in failing to exercise her discretion to grant the appellant a discharge without conviction. In Mr Ryan’s submission, the Judge placed too much weight on the fact that the offending resulted from a breach of a Family Court order and overemphasised the fact that the appellant’s breach was a direct and deliberate breach of a court order.
[9] Additionally, Mr Ryan submits that the prosecution did not file any written submissions in opposition to the application nor challenge the appellant’s affidavit and, as a result, this meant that her evidence was accepted. In oral submissions, the prosecution submits that “as a bar manager, the concern would be if there were convictions for alcohol or convictions for violence, which this is not – it is a breach conviction”. In Mr Ryan’s submission, the Judge was wrong to accept evidence in the form of submissions from the Police.
[10] The Judge failed to take into account the downstream effect a conviction would have on the appellant’s prospects in the childcare industry and, what is more, there was no evidence before the Judge to enable her to come to the conclusion that a further conviction would not necessarily pose a barrier to her employment prospects, Mr Ryan says. The only evidence before the Judge was the sworn but uncontested affidavit of the appellant in which she deposed that a conviction would pose a barrier to her employment prospects in the hospitality industry.
[11] In Mr Ryan’s submission, the personal circumstances of the appellant are that she intends to return to the hospitality industry and the gaming industry; and that she is a registered relief teacher working in the childcare industry. The appellant deposed that she would be prevented from being able to work in the childcare
industry with a conviction which effectively relates to involvement with children and, in Mr Ryan’s submission, she will not be able to work in the gaming industry with a conviction entered against her name. Additionally, she would also be prevented from going to Australia or Europe to continue with childcare teaching.
[12] Ms Thompson, for the respondent, submits the gravity of offending is sufficiently serious given the offending was a deliberate breach of a Family Court order, during the Christmas period – a time of significance to most families. The respondent accepts that the Court may take judicial notice of the fact that a conviction will have consequences for the appellant’s future employment prospects, however, in Ms Thompson’s submission, there should be evidence or some supporting material beyond mere assertions as to the consequences before the Court should exercise its 106 jurisdiction. In Ms Thompson’s submission, the appellant has overstated the effect that her conviction would have on her ability to work in the abovementioned industries. If and when she applies for work in any of these industries, she will need to declare her earlier alcohol related conviction in any event. In these circumstances, it is unlikely that the conviction on appeal, on its own, will deter any prospective employer from employing her.
[13] Ms Thompson refers to a number of authorities in support of the submission that the conviction on appeal is not going to result in an absolute bar to the appellant gaining employment. In Ms Thompson’s submission, the appellant’s reliance on the prospects of being prevented from working overseas or in the childcare industry more generally is speculative. There must be evidence before the court which should be detailed and reliable.
[14] Overall, it is Ms Thompson’s submission that the actual consequences of conviction are not disproportionate to the gravity of the offending. The consequences of conviction for the appellant will be no more severe than those experienced by anyone else with a criminal record, Ms Thompson says.
Approach to appeals
[15] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. This discretion is subject to the test in s
107 being satisfied. That test provides:
107 Guidance for discharge without conviction
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] When the s 107 test is met, the court then has a discretionary power to discharge under s 106, however when the test is satisfied this will usually result in a discharge.
[17] An appeal against a refusal of discharge is by way of rehearing with the court hearing the appeal making a new assessment in accordance with its own opinion.2
The Court of Appeal in R v Hughes concluded that, as the s 107 test was not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion.3 An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.
[18] The approach to be followed in applying the s 107 test is set out in Z (CA447/12) v R where Arnold J held:4
...when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge...
[19] Whether or not the Judge correctly applied the test for discharge, the appellate court must consider the case afresh. It is therefore necessary to apply the
three step test set out in Z (CA447/12) v R.
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
3 At [11].
4 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
[20] In summary, the principles generally espoused for each of these steps are:
Gravity of the offending
·The court should consider all the aggravating and mitigating factors relating to the offending and the offender.5
Direct and indirect consequences of a conviction
·The focus is on the nature and seriousness of the consequences and the degree of likelihood of their occurring.6
·It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.7
Whether direct and indirect consequences of conviction would be out of all proportion to the gravity of offending
·The higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.8
Analysis
[21] It is first necessary to consider the gravity of the offending. The Judge viewed the offending as not particularly serious but considered that there is an element of gravity in a breach of a Family Court order. Mr Ryan opposes that observation, noting that the Judge had overemphasised the seriousness of a breach of a Family Court order and failed to take account of personal aggravating and
mitigating factors.
5 Z (CA447/12) v R, above n 4, at [27].
6 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
7 Iosefa, above n 6, at [34].
8 Iosefa, above n 6, at [35].
[22] The starting point is the maximum penalty for the offending, three months’ imprisonment, which must be considered low. The circumstances of the offending must also be considered. The Judge was satisfied there was a deliberate and intentional act by the appellant in breaching the parenting order, noting the Family Court Judge’s concern that there had been a number of breaches by the appellant in the past. I agree with the Judge’s comment that a deliberate flouting of court orders has serious consequences in circumstances such as this because it means that the decision of the Court is not honoured. The premeditation and the time of the offending, being during the Christmas period (which is a time of significance to most families) are relevant considerations.
[23] The appellant pleaded not guilty and it is apparent from her affidavit that she continues to hold serious concerns about the suitability of her son’s father to have unsupervised access to the child and is of the view that contact should not have taken place until a hair follicle had been provided by him for testing for drug use.
[24] Mr Ryan refers to what he described as the very confusing background of what led to the breach. The appellant originally faced two charges alleging breach of a parenting order without reasonable excuse. She was found not guilty on one of them on the basis, Mr Ryan says, of her Family Court lawyer’s evidence given at the hearing. He pointed out that the complainant, on both charges, was the child’s paternal grandmother who is an officer of the District Court. Two Family Court lawyers were called in the appellant’s defence. One of them gave evidence that he had obtained some information adverse to the child’s father and had told the appellant of this. He told the appellant she was to comply with the parenting order until it was varied. By the day of the breach, an application to vary had been filed but had not yet been heard.
[25] Mr Ryan emphasises that the appellant does not dispute the Judge’s decision, finding her guilty on one charge, but submits that the confusing background to the charges were significantly mitigating.
[26] The second matter, in Mr Ryan’s submission, on which the Judge erroneously placed weight was that another Family Court Judge had referred complaints about
the appellant’s past breaches of the parenting order to the Police and the charges were as a result of that. Before the hearing into the charges commenced, Mr Ryan had raised an issue of disclosure and I have read the Judge’s ruling in this regard. Apparently, the child’s paternal grandmother had applied to the Family Court for a warrant seeking, it seems, enforcement of the parenting order. The Judge had declined to issue the warrant and instead recommended to the Police that the appellant be prosecuted. Mr Ryan had sought disclosure of the two affidavits produced to the Judge which had resulted in that recommendation. The Police opposed disclosure on the basis that the affidavits concerned matters in the Family Court which were still proceeding and were, therefore, irrelevant to the charge. The Judge concluded that the affidavits were not relevant saying:
I am to hear evidence that the Police will put before me. Their job is to prove the elements of the offence and what that evidence will be is something that will become apparent in the hearing. I, therefore, do not consider that disclosure of these affidavits is necessary, nor relevant. The application is declined.
[27] Despite this, however, when it came to considering the application for the appellant to be discharged without conviction, the Judge said:
… it was Judge Adams’ concern that there had been a number of breaches by you in the past that led him to recommending that this matter was prosecuted.
[28] I acknowledge that the Judge’s ruling was made in June 2015 and sentencing occurred in October 2015. In those circumstances, it is therefore understandable that the Judge overlooked her approach to the ruling that the affidavits which resulted in the recommendation were not relevant. The problem, however, is that Judge Adams’ recommendation was obviously made as a result of the two affidavits. The appellant was not given disclosure of those affidavits and, therefore, had no ability to challenge them. In those circumstances, therefore, as a matter of fairness, weight should not have been placed on the referral to the Police prosecutor when deciding on the gravity of the offending. That is because the appellant did not have an opportunity to challenge that material.
[29] In my assessment, that makes a considerable difference to the assessment of
the gravity of the offending. While I agree generally with the Judge’s comments
about the seriousness of any breach of a Family Court order, in all the circumstances, the gravity must be assessed as low.
[30] I now turn to the direct and indirect consequences of conviction.
[31] The Judge referred to the Police submissions that the consequences of a conviction, as deposed in the appellant’s affidavit, were merely speculative. I acknowledge that the affidavit was not challenged in written form by the submissions for the Police but nevertheless this did not preclude the Judge from commenting on the merits of what was deposed. In any event, this is a re-hearing.
[32] I view the submission that the prospects of travelling to Australia or Europe would prove difficult as being merely speculative and must be considered in light of the fact the appellant already has a prior conviction on record. I refer to the comments of Clifford J in Brunton v Police:9
The Courts have held on numerous occasions that tentative future travel plans carry little weight in a s 107 context. Potential problems with travel overseas have often been seen as a universal consequence, and unless real evidence can be shown that a conviction would impede entry into another country such speculative consequences will not form the basis for a discharge without conviction.
[33] The essence of the appellant’s submission is that she believes having a criminal conviction will have a detrimental effect on her prospects of obtaining employment in the industries in which she is trained. However, this Court has said that the difficulty of securing future employment is a general consequence of
obtaining a criminal conviction.10
[34] The courts have been more inclined to decline a s 106 discharge where there is a regulatory body within the industry or profession of which the appellant is a member. In Liang v Police, Hammond J stated:11
If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body
9 Brunton v Police [2012] NZHC 1197 at [16].
10 Tuumaga v Police [2015] NZHC 1695 at [34].
11 Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].
is able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor – it is merely a factor to be considered in the balancing exercise.
[35] In her affidavit, the appellant deposes that “I will need to declare this conviction to the supervisory body who issues permits for people to be able to work in the childcare industry”. Arguably, the supervisory body should be able to determine the appellant’s suitability with the benefit of full disclosure, particularly given the offending which is the subject of the conviction is related to the care of children.
[36] The same is true of the renewal of a manager’s certificate. Section 222 of the Sale and Supply of Alcohol Act 2012 provides that an applicant’s convictions must be considered by the licensing committee or licensing authority. In saying that, however, there is nothing to suggest that this will pose an absolute bar to obtaining a certificate as, from the criteria therein, it is clear that this is one of the factors to be taken into account by the relevant authority. This approach is consistent with that
taken by Lang J in Graves v Police.12 In that case, the Judge did not accept that the
conviction would mean that the appellant would automatically lose his manager’s licence; rather, the conviction and the circumstances that led to it being entered were held to be just one aspect of the appellant’s circumstances that the relevant authority would take into account.
[37] Furthermore, the appellant does not have an unblemished record. The appellant’s alcohol related offending in 2012 is a matter which will be taken into account by an employer in the decision making process and, arguably, this is more serious than the conviction under appeal, although it is now three years old.
[38] As against all of that, however, the appellant has been out of the workforce for four years. She is a young woman with only one conviction, that being for driving with excess breath alcohol three years ago. I accept that it is extremely difficult for anyone who is unemployed to provide evidence of the direct
consequences of a conviction on their employment prospects. It is, however,
12 Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011 at [25].
obvious that, when prospective employers routinely ask for applicants to declare any convictions and often undertake police checks of prospective employees, an applicant with a conviction will inevitably be placed at a disadvantage as against those without a conviction and understandably so.
[39] On balance, however, given the low gravity of the offending and the real and appreciable risk that a conviction will have adverse consequences for the appellant’s employment prospects, I am satisfied that those consequences would be out of all proportion to the gravity of offending.
[40] I now turn to consider whether I should exercise my residual discretion to grant a discharge without conviction. I agree with the Judge that a message should be sent to the appellant about the need to comply with Family Court orders. I note the appellant’s affidavit wherein she says:
I have learnt from this experience and understand the requirements on me to comply with this Court Order.
I confirm with the Court that there is no prospect of me reappearing before the Court on any similar type charges again.
[41] There is a need to mark the offending. This can be done by the appellant undertaking 40 hours of voluntary community work at a suitable charity or non- profit organisation. The matter will be recalled in February 2016 on a date to be set by the Registrar in consultation with Mr Ryan. If evidence of completion of those hours of community work is then provided, I will discharge the appellant without conviction.
Result
[42] For the reasons given, the appeal is allowed.
Thomas J
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