Parry v New Zealand Police
[2025] NZHC 1924
•15 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000481
[2025] NZHC 1924
BETWEEN JOVIAN LANG PARRY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 June 2025 Appearances:
O R Hintze for Appellant
W N Fotherby and H W Louie for Respondent
Judgment:
15 July 2025
JUDGMENT OF ANDREW J
This judgment was delivered by me on 15 July 2025 at 10 am
Registrar/Deputy Registrar Date:
PARRY v NEW ZEALAND POLICE [2025] NZHC 1924 [15 July 2025]
Introduction
[1]This is an appeal against conviction and sentence.
[2] In the District Court, the appellant, Jovian Parry, pleaded guilty to one charge of aggravated assault (assault on Police).1 He applied for a discharge without conviction. Judge E P Paul declined that application and sentenced Mr Parry to 60 hours of community work.2 That sentence was later changed to a fine of $750 plus court costs of $130, due to Mr Parry residing in Australia.
[3]Mr Parry contends that the Judge erred by:
(a)incorrectly assessing the gravity of the offending as moderate;
(i)in assessing the gravity of the offending, he placed excessive weight on the voluntary consumption of alcohol and said that Mr Parry chose to consume alcohol after the family intervened and while the appellant’s mother was present; and
(ii)he did not place enough weight on or take into account the circumstances of the offending itself and overstated the seriousness of the offending;
(b)taking the previous discharge without conviction into consideration after the decision was made to not exercise the discretion but before the proportionality test was concluded; and
(c)concluding that there was a need to not conceal the conviction from future employers and not placing enough weight on the consequences of the conviction.
[4] Mr Parry has a PhD in science and technology. He wishes to pursue an academic career in Canada or alternatively, in the museum and heritage sector.
1 Crimes Act 1961, s 192(2). Maximum penalty three years’ imprisonment.
2 New Zealand Police v Parry [2024] NZDC 21643.
[5] The Police oppose the appeal and say the gravity of the offending was correctly assessed by Judge Paul and the consequences of a conviction are not out of all proportion to the gravity of the offending.
Evidence on appeal
[6] Since initial submissions were filed, the appellant has applied to adduce fresh evidence in the form of updated affidavits deposed by Mr Parry and his mother, Mrs Julia Parry; supporting letters from Dr Leesa Fawcett of York University, Canada, and Professor Conal McCarthy of Victoria University of Wellington; and a psychological report from Dr Loshni Rogers. The Court may receive further evidence on appeal if it is in the interests of justice to do so.3 The evidence is generally required to be credible and fresh.4
[7] I find that the evidence is sufficiently credible and fresh and I grant the application. I note there is no opposition by the respondent, although it contends that the evidence should be given limited weight.
Factual background
[8] On 1 November 2022, Mr Parry was at his home address in Auckland Central. He became intoxicated and, after a verbal altercation with his family, the Police were called. An occupier of the address requested that Mr Parry be trespassed.
[9] While Police were escorting Mr Parry from the address, he became aggressive and resistant. As the arresting officer was placing a seatbelt on Mr Parry in the Police vehicle, Mr Parry repeatedly and unsuccessfully tried to bite him. He then kicked the officer twice in the chest and once on the arm. The officer did not suffer any injuries and Mr Parry does not remember the offending.
3 Criminal Procedure Act 2011, s 335.
4 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. Also see Mark v R [2019] NZCA 121
at [16].
Decision under appeal
[10] The Judge first summarised the offending. He then referred to the affidavits filed by the appellant and his mother. The mother’s affidavit explained that she had been visiting Mr Parry on the day of the offending. She was concerned for her son. Mr Parry had started consuming alcohol and became increasingly agitated. This increased to the point where Mrs Parry felt it was necessary to leave and to call the Police.
[11]The Judge held as follows:
[13] Assault on police is serious. That is the starting point for determining the gravity of your offending. It is somewhat moderated in my view by your earlier plea and the steps you have taken to address. The factors around your offending, I note counsel rely on your prosocial family in terms of a mitigating feature but they were present at the time of this offending and it did not mitigate your behaviour at all, in fact from what I have read it exaggerated your behaviour and you became increasingly agitated with their presence to the extent they had to remove themselves from your unit.
[14] Also there is an element of choice here and it would appear that you chose to start consuming alcohol after their intervention and your counsel has pointed to the other steps you have taken your use or abuse of alcohol which has to be acknowledged. But ultimately even in combination the steps you have taken, it cannot be said that that would reduce the offending below moderate. That just simply does not stand against the seriousness of the offending. So from serious I do not accept it can go below moderately serious offending in the particular circumstances.
[15] In terms of the consequences for employment, given the responsible employment you would hope to take up in the community, it is not appropriate for the Court to take away relevant information for any employment body determining whether you are a suitable candidate for employment. The reality is that that is simply a general consequence of convictions for any person.
[16] In terms of your mental health we have your GP’s assessment of your mental health which has been with you for some time but that seems distinct from your abuse of alcohol which has been evidence since at least the 2017 offending and up until 2022 when this occurred. So in assessing whether the consequences are out of all proportion to the gravity of the offending the consequences are of more a general nature and are not sufficient gravity in my view to require me to exercise my discretion and grant you a discharge. At this point I take account of your previous discharge in 2017 for very similar behaviour where you were so intoxicated you mistook the St John Ambulance Station for a police station and were verbally abusive to two staff members while there, and struggled and was abusive when arrested ultimately by the police. On that occasion it would appear you secured a discharge because of jeopardy to your immigration status in Canada. Clearly that is no longer a
consideration but in any event I do not accept you have met the proportionality test under s 106 and I decline to discharge you today.
[12] The Judge entered a conviction and sentenced Mr Parry to 60 hours community work.
Legal principles on appeal
[13] An appeal against a court’s refusal to discharge a defendant without conviction is properly characterised as a composite appeal against conviction and sentence.5 As the Court of Appeal held in Gaunt v Police:6
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, or alternatively 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.
[14] The appeal essentially proceeds by way of rehearing, whereby the appellate court makes its own assessment of whether the criteria for discharge without conviction are met.7 The criteria will be met if the Court is satisfied that the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offending.8
[15] The accepted approach to determining an application for discharge without conviction is to:
(a)assess the gravity of the offending having regard to all relevant aggravating and mitigating factors;
(b)identify the consequences of conviction of which there is a real and appreciable risk; and
5 Jackson v R [2016] NZCA 627 at [16].
6 Gaunt v Police [2017] NZCA 590 at [9]. Also see: Criminal Procedure Act, s 232; Jackson, above n 5; Prasad v R [2018] NZCA 537 at [11]; Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28]; and A (CA747/10) v R [2011] NZCA 328 at [22].
7 Austin, Nichols & Co Inc v Stitching Lodestar [2008] 2 NZLR 141, [2007] NZSC 103; and R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
8 Sentencing Act 2002, ss 106–107.
(c)determine whether those consequences are out of all proportion to the gravity of the offending.9
[16] The proportionality test for a discharge without conviction under the Sentencing Act 2002 requires an evaluative judgment and is not a matter of discretion.10 The ordinary principles governing general appeals therefore apply and this Court must reach its own conclusion on the merits. Only if the Court finds the consequences of conviction are out of all proportion with the gravity of the offending, may the discretion to grant a discharge be exercised.11
Analysis and decision
Ground One: Placing excessive weight on the voluntary consumption of alcohol
[17] I reject the appellant’s contention that Judge Paul placed excessive weight on the voluntary consumption of alcohol. The choice to start consuming alcohol was but one factor considered by Judge Paul in his assessment of the gravity of the offending. The Judge, as noted above, also considered the steps that Mr Parry has taken to address his alcohol abuse, his guilty plea and the fact that he became increasingly agitated by the presence of his pro-social family. There was no material error in that assessment.
[18] Whether Mr Parry consumed alcohol before or during the incident with his family is, in my view, not material. It cannot be said to be a mitigating factor of any consequence.
[19] I accept that Mr Parry’s mental health challenges and background can properly be regarded as a mitigating factor. However, as the Police submit, this does not extinguish his culpability or entirely reduce the seriousness of the offending. In any event, Judge Paul clearly had regard to the appellant’s mental health challenges.
9 Z (CA447/2012) v R, above n 6, at [27].
10 H (CA680/11) v R [2012] NZCA 198.
11 R v Hughes, above n 7, at [23].
Ground Two: Giving insufficient weight to the circumstances of the offending and overstating its seriousness
[20] I acknowledge that the offending here was not premeditated, was of short duration, and the assault did not include a weapon or result in injury. Furthermore, the offending was not undertaken to evade arrest. However, I find that Judge Paul was entitled and correct to conclude that the offending was nevertheless moderately serious. Assaults on Police officers in the course of their duty are serious12 and this includes where injuries are minor.13 The fact that Mr Parry was at home and that the conduct got “out of hand” is not material.
[21]In R v Bridewell,14 this Court held:
[15] The charge of aggravated assault arises from minor injury sustained to one of the police officers. This followed a scuffle inside the house and your attempt to escape. The futility of your actions is obvious and I regard the assault on a police officer trying to do his job as a serious thing, even if the injuries are minor.
[22] I further note that the offending involved continuous and repeated attempts to bite the Constable and three separate kicks which struck the Constable. I find there was no error in either the approach or decision of Judge Paul on the issue of the gravity of the offending.
Error in not considering previous discharge without conviction
[23] Mr Parry submits that Judge Paul was in error in not considering the previous discharge without conviction as part of the proportionality assessment.
[24] I agree with the submission of Mr Hintze that the correct legal approach in the s 106 analysis is to consider a previous discharge as part of stage one — the gravity of the offending assessment. In Tsyan v New Zealand Police, this Court held that the appellant’s previous discharge without conviction was an aggravating factor contributing to the gravity of the offending overall.15
12 Wiki v New Zealand Police [2018] NZHC 2156 at [17].
13 R v Bridewell HC Auckland CRI-2007-057-251, 3 July 2008 at [15].
14 R v Bridewell.
15 Tsyan v New Zealand Police [2021] NZHC 1264 at [18]. See also Moss v Police [2020] NZHC 1065 at [17].
[25] However, in my view, a previous discharge without conviction may also be relevant to the residual discretion of the s 106 analysis. In New Zealand Police v Rozhdestvensky,16 the District Court held that a previous discharge without conviction counted against the offender in terms of the exercise of the discretion. No issue was taken with that approach on appeal.17
[26] In any event, Judge Paul’s reference to Mr Parry’s previous discharge was simply part of the analysis leading to his ultimate conclusion that the proportionality test had not been met and that the discretion would not be exercised in Mr Parry’s favour.18
[27] Even if Judge Paul’s approach was an error, it was not of a material kind. Had the previous discharge without conviction been considered at the stage one gravity assessment, it could properly have been considered as an aggravating factor confirming the Judge’s conclusion that the offending remained moderately serious.
Ground Four: No need to conceal a conviction from future employers
[28] Mr Parry submits that the Judge was in error in concluding that there was a need to not conceal the conviction from future employers. He argues that a conviction would not be highly relevant to an employer’s assessment of suitability if a contextual assessment of the offending is undertaken.
[29] I find there is no merit to this ground of appeal. The conclusion reached by the Judge was orthodox and he clearly had regard to the issue of proportionality.
Ground Five: Consequences of a conviction and the proportionality test
[30] Mr Parry submits that the ordinary consequences of a conviction would be severe and that a conviction for this type of offending would be a serious impediment to his current and future endeavours.
[31]In his affidavit, Mr Parry states:
16 New Zealand Police v Rozhdestvensky [2023] NZDC 5178.
17 Rozhdestvensky v New Zealand Police [2023] NZHC 1919 at [9] and [36].
18 New Zealand Police v Parry, above n 2, at [16].
(a)He is concerned at the prospect of being convicted as he is worried that he will never be able to teach at a university or be employed in the museum and heritage sector due to the industry having limited positions available.
(b)If convicted, he believes that a potential employer would disregard his application once they found out he has a conviction and, if questioned about the conviction, he would be compelled to disclose his mental health history.
(c)That he has limited work experience and a criminal conviction would severely prejudice his ability to obtain employment and have a negative impact on his future.
(d)He wishes to return to Canada so he can move on with his life and start working again.
[32] Mr Parry relies on a letter from Dr Leesa Fawcett of York University,19 which states that an aggravated assault conviction would render Mr Parry “impossible to hire”, at any university she knows of, as a lecturer, teacher or librarian.
[33] Mr Parry also relies on a letter from Professor Conal McCarthy20 of Te Herenga Waka | Victoria University and a psychological report from Dr Loshni Rogers, a clinical psychologist.
[34] Professor McCarthy states that someone with an aggravated assault conviction is “highly unlikely” to get a job in the museum and heritage sector and it would be “almost impossible” to gain employment in any kind of library, be that public, university or otherwise, in New Zealand or Australia.
19 Dr Fawcett is an Associate Professor Emerita and Senior Scholar at York University, Toronto, Canada, where Mr Parry obtained his PhD in 2019. She has provided a character reference dated 22 May 2024.
20 Professor McCarthy is the Director of the Museum and Heritage Studies programme at the Stout Research Centre at Te Herenga Waka | Victoria University of Wellington. His letter of support is dated 16 March 2025.
[35] Dr Rogers is of the opinion that Mr Parry likely represents a low risk of violent reoffending. He concludes that Mr Parry has several strengths that will serve to mitigate his risk of reoffending and that he “has engaged in a largely prosocial life.” Dr Rogers also notes that Mr Parry has invested considerable time and energy into his tertiary education (obtaining a PhD) and has faced challenging mental health issues throughout his life.
[36] It is well-established law that whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction.21 The courts have also recognised that “the black mark of a conviction alone” can be a significant consequence for someone with an otherwise clean record.22
[37] The Court of Appeal in Doyle v R held that, in determining the impact of a conviction on employment or career prospects, the correct approach is to “identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen … and form an overall assessment of seriousness.”23
[38] I find that the consequences of a conviction here would be severe for Mr Parry. There is a real and appreciable risk that he will be denied entry into one of his chosen professions. There is also a real and appreciable risk that he will be denied entry into Canada, where he wishes to go and live, given the immigration restrictions in that country.24 In reaching my conclusion on the severity of the consequence, I have the benefit of fresh evidence that was not available to the District Court Judge.
21 Laing v Police HC Wellington AP39/02, 16 April 2003, cited in Moss v New Zealand Police, above n 15, at [78].
22 DC (CA47/2013) v R [2013] NZCA 255 at [44]; cited in Gaunt v Police, above n 6, at [9].
23 Doyle v R [2022] NZCA 307 at [39].
24 The Canadianvisa.org website expressly states that to be eligible for a work permit you “must” have no criminal record and commit no crimes for the duration of your work permit. Also see the Canadian Government website (canada.ca) which expressly states that to be eligible for a work permit you “must … obey the law and have no record of criminal activity” and that a police clearance certificate may be required prior to the grant of a work permit. While the courts have held that a discharge without conviction application will be undermined where a prospective employer is entitled to request a Police vetting check (see for example: Parker v Police [2016] NZHC 2524), it should be noted that a “police clearance certificate”, as required by Canadian Immigration, is a Criminal Conviction History, not a Police vetting check. As such, were a discharge granted, the discharge, and the events leading to it, would not be disclosed.
[39] Mr Parry is obviously highly educated. He has spent many years studying and now wishes to pursue a career in either higher education or the library and museum/heritage sector. There is clear evidence from both Dr Fawcett and Professor McCarthy that an aggravated assault conviction would likely be a significant, and probably insurmountable, hurdle to the pursuit of a career in those fields. Absent a conviction, the evidence suggests his prospect of obtaining employment in those fields is reasonably high. He has previously taught at university level and has strong academic credentials. Given the significant amount of time and resources Mr Parry has devoted to developing his career to date, the consequence of a conviction, being the likely loss of that career, is clearly severe.
[40] I turn now to consider the issue of proportionality. In doing so, I accept that it is not enough that the consequences of a conviction outweigh the gravity of the offending. The consequences must be “out of all proportion” to the gravity of the offending before the Court has jurisdiction to grant a discharge without conviction.25 The threshold is clearly a high one.
[41] I reject the respondent’s submission that the consequences of a conviction here on future employment and potential travel are the ordinary consequences of a conviction of this nature. Here, a conviction would significantly limit Mr Parry’s future employment opportunities, having invested significant time and effort into obtaining multiple academic qualifications. He clearly wishes to move to Canada to live, and not simply to visit. He intends to take up new opportunities there, with a view to establishing a new life in an environment that provides support for him in addressing his mental health challenges.
[42] Mr Parry has strong connections with Canada, having previously lived and taught there. As mentioned, the evidence before the Court clearly suggests that the absence of a criminal conviction is an essential requirement for eligibility for a Canadian work permit.26
25 R v Smyth [2017] NZCA 530 at [12].
26 See above n 24. I note, too, that Mr Parry’s likely occupation field will be in the public sector given the nature of his qualifications and career interests.
[43] I acknowledge that the proportionality assessment is to be made in the context of a finding that the gravity of the offending was moderately serious. The courts always regard assaults on Police officers in the course of their duty as serious. However, in this case it is important not to overlook some important mitigating factors, such as the appellant’s mental health challenges, the absence of injury, the lack of weapons and the short duration of the offending.
[44] As noted, the test under s 106 is an evaluative one and I must come to my own conclusion on the merits. In the circumstances here, I find that the consequence of a conviction would be out of all proportion to the gravity of the offending. It is the particular combination of factors, namely the significant impact on employment opportunities with an intention to pursue a career in Canada and the associated immigration difficulties, that lead me to that conclusion.
[45]I turn now to consider the residual discretion.
[46] I agree with the submission of the respondent that the previous discharge without conviction for similar offending that Mr Parry received in 2017 is relevant. However, there is no formal rule regarding a person being discharged without conviction twice, although I accept that there should be “convincing” reasons for granting a second one.27 Each case must obviously be considered on its own merits.28
[47] Despite some misgivings, I find that I should exercise my discretion in favour of Mr Parry and grant him a discharge without conviction. There is clear evidence that he has taken active steps since the recent offending to address his mental health challenges. Dr Rogers assesses him at low risk of violent offending and has noted his “several strengths” that will serve to mitigate his risk of reoffending. Dr Rogers also says that Mr Parry has engaged in a largely pro-social life.
[48] For all of these reasons I conclude that Mr Parry should be granted a discharge without conviction.
27 Houqe v R [2018] NZHC 1820 at [16].
28 See, for example, Tsyan v New Zealand Police, above n 15, at [30], where the appellant received for the third time a diversion or discharge without conviction.
Result
[49] The appeal is allowed. Mr Parry is discharged without conviction and the conviction entered in the District Court is quashed.
Andrew J
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