Police v XY
[2018] NZHC 414
•13 March 2018
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2018-425-000003
[2018] NZHC 414
BETWEEN NEW ZEALAND POLICE
Applicant
AND
XY
Respondent
Hearing: 7 March 2018 Appearances:
M J Thomas for Applicant L C Denton for Respondent
Judgment:
13 March 2018
JUDGMENT OF GENDALL J
Introduction
[1] The respondent, a man of 58 with a previously blameless record, was charged with three offences. The first was male assaults female, the second common assault under the Crimes Act 1961, and the third, common assault under the Summary Offences Act 1981. He applied for a discharge without conviction. On 11 December
NZ POLICE v XY [2018] NZHC 414 [13 March 2018]
2017, Judge Brandts-Giesen in the District Court at Queenstown granted the application.1
[2] On 10 January 2018 the Police applied for leave to appeal against that decision, as a ruling made in the determination of a charge pursuant to s 296 Criminal Procedure Act 2011, on two questions of law. They are:
(a)Did the Judge err in his assessment of the gravity of the offending?
(b)Did the Judge err in concluding the consequences of conviction were out of all proportion to the gravity of the offending?
[3]The respondent opposes that application
Background facts
[4] On 14 September 2017, the respondent was socialising at a bar in Queenstown with his wife, his two daughters and a male associate whom he has deposed was a long-time friend of his. He saw text messages from the associate to his wife, and she to him, declaring their love for each other. He says he was shocked and in response, he left the bar and walked away down the street.
[5] A short while later, the respondent then found the group near Starbucks in the Queenstown township. He went straight up to the associate on the street, pushed him against a pole and held him there with his arm around the associate’s neck. A struggle ensued and both men ended up on the ground. The pair were separated by one of the respondent’s daughters. The respondent then grabbed that daughter by the throat and pushed her to the ground, his hand preventing her from breathing. This resulted in bruising around her neck.
[6] Another further struggle ensued, involving pushing and shoving between the respondent and the associate. A group of people tried to separate them. This included the respondent’s daughter and wife. The respondent put up his boot and pushed at his
1 [……………………………………………………].
wife, kicking her in the ribs. This caused her to fall backwards onto the ground. Some minor injuries occurred.
[7] When spoken to afterwards by the Police, the respondent said he was cross and wanted to “get” the associate. He also said he could not remember grabbing his daughter by the throat or kicking his wife in the ribs.
District Court decision
[8] The Judge broadly applied the three-step test under s 107 of the Sentencing Act 2002 to determine whether the application for a discharge without conviction should be granted.
[9] He began by considering the gravity of the offence and described the event as being at one level “a nasty assault” but, on the other hand, it “had to be seen in its context”. He stated that the respondent evidently “saw red” when he discovered his friend had been having a relationship with his wife. The Judge then said:
There would be many people who would have done exactly what you did, even though it may be against the law to do so.
And later, in his final summary of the events in issue, he said:
In the circumstances, I consider that the consequences of conviction are out of all proportion to what happened on this occasion…
And:
This is a situation that does your wife no credit and it does the first complainant no credit.
He considered, too, that while the actual assaults were, in his words, “moderate to serious”, the context in which they happened really reduced that seriousness by a large amount. The respondent’s previous good character, at 58 years of age, with no prior convictions, also helped put the offence at what he described as a “moderate level only”.
[10] In moving to address the consequences of a conviction, the Judge said these were that it may affect overseas travel and also that it “will put up certain barriers that
should not have to annoy [the respondent] for the rest of [his] life”. He commented too there was also the stigma of a conviction.
[11] The Judge concluded, as I note above, that, in the circumstances, the consequences of conviction were out of all proportion to the events on this occasion, especially given what he described as “the spontaneous and explosive nature of what happened”.
[12] The Judge therefore granted a discharge without conviction on all three charges.
Principles on appeal
[13] The prosecution does not have a general right to appeal against a conviction or acquittal. It may only appeal based on a question of law.2 This requires the prosecutor to seek leave to appeal to the first appeal court,3 here the High Court.4 The application for leave must state the question of law on which the appeal is being taken.5
[14] In an appeal on a point of law the Court is not to merely substitute its own application of the law to the facts. The Supreme Court expressed this in Bryson v Three Foot Six Ltd:6
An appeal cannot however be said to be on a question of law where the fact- finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[15] However, there are situations where a factual conclusion is simply untenable. Blanchard J, in the Supreme Court, discussed the principles relating to an appeal on a question of law in Vodafone New Zealand Ltd v Telecom New Zealand Ltd, stating:7
2 Criminal Procedure Act 2011, s 296.
3 Criminal Procedure Act 2011, s 298(1).
4 Criminal Procedure Act 2011, s 297.
5 Criminal Procedure Act 2011, s 298(2).
6 Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] 3 NZLR 721 at [25].
7 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138 , [2012] 3 NZLR 153 at [52]-[53], citing Piggott Brothers and Co Ltd v Jackson [1992] ICR 85 (CA) at 92.
[52] As the Court said in Bryson, however, an ultimate conclusion of a fact- finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law, because proper application of the law requires a different answer. But that will be the position only in the rare case described by Lord Radcliffe in Edwards v Bairstow. Lord Radcliffe gave three alternative descriptions: a state of affairs “in which there is no evidence to support the determination”, or “one in which the evidence is inconsistent with and contradictory of the determination”, or “one in which the true and only reasonable conclusion contradicts the determination”. Lord Radcliffe preferred the last of them. It will be an error of law if the Commission has correctly interpreted the requirements of s 92 in relation to “net cost” but has nevertheless made a determination of net cost where the true and only reasonable conclusion available on the facts before it actually contradicts that determination. That will be the case if the Commission has in applying s 92 made an error which is of fundamental significance to its decision-making.
[53] Some caution is, however, required of the appeal court in assessing whether the decision-maker has reached an untenable conclusion on the facts. In Bryson this Court took notice of the observation by Lord Donaldson MR in Piggott Brothers and Co Ltd v Jackson that:
“It does not matter whether, with whatever degree of certainty, the appellate court considers it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option.”
[16] Therefore, this Court’s task is to assess the correct law and consider whether there was any reasonable or tenable interpretation of the facts upon which the District Court Judge could reach the conclusion here that the test for a discharge without conviction was made out.
Submissions
Appellant’s submissions
[17] I repeat that the applicant’s proposed questions of law outlined at [2] above are:
(a)Did the Judge err in his assessment of the gravity of the offending?
(b)Did the Judge err in concluding that the consequences of conviction were out of all proportion to the gravity of the offending?
[18] Counsel submits that the Judge erred in granting the discharge without conviction, in particular, in his assessing of the gravity of the offending, the consequences of conviction and in his carrying out of the balancing test.
[19] The applicant contends that the offending here involved a violent, retributive response from the respondent to his discovery of infidelity on the part of his wife and his friend. The respondent resorted to a significant level of violence, including what were truly assaults in the nature of domestic violence against his daughter and wife. Judge Brandts-Giesen, as I have noted above, described the offending as “spontaneous and [of] an explosive nature”. The applicant disputes this assessment. Ms Thomas suggests this is because the respondent had taken time to have a walk between his discovery of the text-messaging and the incident. She maintains too that, the Court can be satisfied that the offending here is, at least, of a moderate (or medium) level because of the following factors:
(a)Three victims were involved;
(b)Two of the victims were the respondent’s family members so there is an element of breach of trust;
(c)There was strangulation involved; and
(d)There was a minor degree of premeditation.
[20] With regard to the consequences of the offending, Ms Thomas submits that the negative impact on the respondent’s confidence and self-esteem is a normal and expected consequence of convictions generally. Similarly, any impact on the family dynamic is expected given the nature of the offending. The applicant suggests that it is really the offending itself that would have more impact than a conviction for it.
[21] Counsel contends that the only viable consequence raised by the respondent before the Judge was a possible impact on travel plans. On this aspect, however, the respondent provided no evidence of real plans nor details of whether a conviction would impede on that. Therefore, counsel maintains that the respondent has failed to establish a “real and appreciable risk” that the consequence would occur.
[22] The applicant’s overall position is that the Judge understated the seriousness of these offences and overstated the consequences of conviction. Ms Thomas went on to
say that, given the fact that the offending was moderately serious and there were no real consequences of a conviction, the Judge erred in law by granting the application for a discharge without conviction.
Respondent’s submissions
[23]In her submissions for the respondent, Ms Denton contended that:
(a)Judge Brandts-Giesen’s assessment of the gravity of the offending was correct;
(b)The general consequences identified were valid; and
(c)The Judge exercised his discretion correctly to discharge the respondent without conviction.
[24] Turning to an assessment of the gravity of the offending, the respondent submits the Judge was correct to assess this as low to moderate for the following reasons:
(a)The offending was spontaneous and out of character and the respondent has the forgiveness and support of his family.
(b)The assault against the male complainant was minor and resulted in no harm.
(c)The assault against the respondent’s daughter was in a context where she attempted to physically intervene in the incident. The respondent contends that he did not know it was his daughter who had intervened, that he did not specifically attack her neck and he simply recalls being pulled and grabbed by a third person as they fell to the ground.
(d)The assault against the respondent’s wife, according to the respondent, was in the context of he being held back and his wife approaching him.
He says he raised his foot to push her back and did not intend to kick her.
(e)The respondent has expressed profound remorse towards his daughter and his wife and was able to undertake restorative justice with his wife.
(f)The respondent has no previous convictions and co-operated fully with Police. He pleaded guilty at an early stage, and has the support of his wife.
[25] In maintaining that the offending was spontaneous, the respondent contends he initially left the bar in a state of shock when he was trying to remove himself from the situation and, in fact, he was pursued by his wife and the male associate at the time. They all then ran into each other in the street and the respondent’s emotions, he claimed, got the better of him. No aspect of the assault, he contends, was premeditated.
[26] In considering Judge Brandts-Giesen’s overall decision, Ms Denton maintains that the Judge did not condone the respondent’s behaviour. What he said instead was really an acknowledged understanding as to why the respondent had on this occasion acted out of character. Further, taking into account the victims’ expressed views and the fact that it is said there were no long lasting or serious injuries, the respondent submits that the gravity of his offending here was correctly assessed as being only low to moderate.
[27] Ms Denton also referred me to several cases which she contended by analogy supported the respondent’s position. She did seem to accept, as I understand it, that each case must, however, turn upon its own facts and circumstances.
[28] Turning now to the consequences for the respondent of a conviction, Ms Denton submitted that Judge Brandts-Giesen made no error in his assessment of these consequences.
[29] In assessing whether the Court is satisfied there is a “real and appreciable risk” that the identified consequences will occur, Ms Denton maintained that the Judge was correct to agree that a conviction here would put up barriers, including the stigma associated with family/domestic offending, that ought not to annoy the respondent for the rest of his adult life.
[30] Next, Ms Denton contended that a conviction here may restrict the respondent from travelling to Australia to visit his daughter. This travel was a real and regular possibility, given first, the fact that she resides there, and secondly, the material from the Australian immigration website which was provided to the Court. As to this, if convicted, the respondent noted that he would be required to obtain a waiver and go through detailed Australian immigration requirements each time he intended to travel.
[31] Ms Denton then referred me to decisions of this Court, including Bailey v New Zealand Police8 in support of the respondent’s argument that the consequences of a conviction would pose a real and appreciable travel risk for him.
[32] In summary and finally, Ms Denton contended that the stigma associated with domestic violence, possible travel barriers and future employment consequences for the respondent here would meet the test that there is a real and appreciable risk that the consequences of a conviction for both the respondent and his family were out of all proportion to the gravity of his offending.
Law
[33] Section 106(1) of the Sentencing Act 2002 provides the discretion to order a discharge without conviction. However, before that discretion can be exercised, s 107 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”.9 These consequences need not be certain, provided that there is a “real and appreciable” risk
8 Bailey v New Zealand Police [2015] NZHC 3051.
9 Sentencing Act 2002, s 107.
of them resulting.10 The proportionality test is not a matter of discretion but a matter of fact requiring judicial assessment.11
[34] The orthodox approach in assessing whether a discharge should be granted was set out by the Court of Appeal in Z v R:12
…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 (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[35] The first step in considering an application for a discharge without conviction is to assess the gravity of the offence. The gravity is the gravity of the offence in comparison to other offences, not as to where the particular offending sits within others of its kind.13 When considering the gravity of the offence, the preferred course is for the Judge to also take into account the aggravating and mitigating factors relating to both the offending and the offender at this stage.14
[36] In the second step, the court is to assess the consequences of a conviction. In making that assessment, it is appropriate for the court to consider the likelihood of the consequences materialising.15 The higher the likelihood and the more serious the consequences, the more likely it is that the disproportionality test will be satisfied. To this end, it is normal for counsel to provide the court with written material confirming the consequences of a conviction. In particular, where foreign travel difficulties are to be relied on, the evidence before the court should be detailed and reliable.16 Submissions as to the consequences will be insufficient to qualify as “information” for
10 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].
11 H (CA680/11) v R [2012] NZCA 198 at [30].
12 Z v R [2012] NZCA 599 at [27].
13 Z (CA447/12) v R, above n 11, at [31].
14 Z (CA447/12) v R, above n 11, at [27].
15 Maraj v Police [2016] NZCA 279 at [31].
16 Brunton v Police [2012] NZHC 1197 at [16]; Police v M [2013] NZHC 1101, (2013) 26 CRNZ 308 at [55].
the purposes of a discharge.17 However, the court may take judicial notice of the consequences of a conviction in some cases.18
[37] A discharge on the grounds that travel will be impeded is unlikely to be successful where future travel is speculative and not yet planned.19 The court should also consider whether a conviction would be an absolute bar to entry, or whether a conviction would make entry unreasonably difficult or uncertain. This test was met in Bailey v Police, where the Court was provided with evidence that the defendant had already been denied a visa to attend a business conference in the United States as a result of his conviction.20 It was not met in Yang v Minister of Business, Innovation and Employment.21 There it was accepted that a conviction would bar the applicant using an APEC business travel card, which permitted her to enter China without gaining a visa. However, there was no evidence that it would prevent her gaining a visa so the consequence was considered to be minor.
[38] The final stage is to weigh up the consequences of the conviction with the gravity of the offending and determine whether the consequences would be out of all proportion to the gravity of the offence. The nature and seriousness of the consequences will be relevant to that assessment of whether they would be out of all proportion to the gravity of the offence.22 As the phrase “out of all proportion” indicates, the situation must be extreme for the test to be met.23 Or, in other words, there must be a “significant disproportionality of consequence before a discharge without conviction can be properly considered”.24
What are the questions of law for the Court?
[39] Under s 299 Criminal Procedure Act 2011, the Court has the power to “amend or restate any question of law to be determined in the appeal if it considers it necessary or desirable to do so”.
17 See Police v M, above n 14, at [49], [60]–[62].
18 Gasson v N [2012] NZHC 2988 at [24].
19 Brunton v Police [2012] NZHC 1197 at [16]; Marszolek v Police [2015] NZHC 2858 at [35].
20 Bailey v Police [2015] NZHC 3051.
21 Yang v Minister of Business, Innovation and Employment [2017] NZHC 1673.
22 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [82].
23 Police v Roberts [1991] 1 NZLR 205 at 210.
24 BC v Police HC Wellington CRI-2003-485-101, 2 June 2004 at [9].
[40] Given the content of the applicant’s substantive submissions and the issues that arise here, I consider it is desirable to amend the proposed questions as follows:
(a)Was the Judge’s finding as to the gravity of the offending available to him, as a matter of law, on the evidence before him?
(b)Was the Judge’s finding as to the consequences of the offending available to him, as a matter of law, on the evidence before him?
(c)Was the Judge’s finding that the direct and indirect consequences of a conviction for the respondent were out of all proportion to the gravity of the offences available to him as a matter of law?
[41] These questions better phrase the issue as a question of law, rather than a general appeal against a Judge’s decision. They cover all the matters the applicant raises here.
Was the Judge’s finding as to the gravity of the offending available to him, as a matter of law, on the evidence before him?
[42] The applicant submits that the Judge erred in assessing the gravity of the present offending. In answering this question, I note the observation in Piggott Brothers and Co Ltd v Jackson that:25
It does not matter whether, with whatever degree of certainty, the appellate court considers it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option.
[43] The applicant suggests that the offending here should be assessed as being of medium to serious gravity, inferring that the Judge did not find it such. This appears to come from its concerns that some of the Judge’s statements minimise the offending. They also tend to ignore the fact that some of the violence was domestic in nature being directed at his wife and daughter. All this too, it is said, seemed to overlook the Judge’s initial assessment of this as a “nasty assault” with a gravity at a level he
25 Piggott Brothers and Co Ltd v Jackson, above n 7, at 92.
described as “moderate to serious”. At [9] of his decision, Judge Brandts-Giesen initially confirmed this when he stated:
[9] From the point of view of the actual assaults, they were moderate to serious. The context in which they happened really reduces that seriousness by a large amount. Added to that your excellent record to date, all those combine to make this an offence at the moderate level only.
[44] I consider that the Judge’s final assessment of the gravity of the offending as only “moderate” was misguided. Aspects of the offending, including the respondent’s complete loss of control as he engaged his anger, the fact the wife initially stated “he definitely intended to kick me in the ribs” which the respondent did, and the acknowledged strangling and bruising of his daughter, can only be seen in all the circumstances here as serious. Judge Brandts-Giesen, however, appeared to be influenced in his decision by the later views of the respondent’s wife expressed in her Victim Impact Statements, in particular, where she said “I do not want [the respondent] to get a conviction out of this as I want to move on…” and “I don’t want to see anything bad happen to [him]…” And the unfortunate comments the Judge made that “there would be many people who would have done exactly what you did” and “this is a situation that does your wife no credit and it does the first complainant no credit”, insofar as they attempt first, to normalise and minimise the respondent’s offending and secondly, to blame the victims here, also seem to be influential in the Judge’s reasoning. In my view, this is quite wrong, and it worked to significantly derail the Judge’s assessment of the gravity of the respondent’s offending here.
[45] Whilst I accept the wider context of that offending, and the fact that the views of the victims do have some effect on the Court’s response to the respondent’s offending, they cannot excuse what was in reality a nasty and violent assault against three people. This included what were effectively domestic violence assaults against his wife and daughter, the last of whom, as I have noted, suffered a degree of strangulation with visible bruising to her neck. Recently, the Court of Appeal commented in Mackay v The Queen:26
However, this Court has held that only in exceptional cases will infidelity on the part of the victim mitigate a violent retributive response by their partner, a
26 Mackay v The Queen [2017] NZCA 337 at [15].
possible example of an exceptional case being where the reaction is essentially instantaneous and a product of a complete loss of control.5
5 Wairau v R [2015] NZCA 215 at [39]; and Hamidzadeh v R [2012] NZCA 550…
Those comments are relevantly considered here, insofar as they relate to the unexpected discovery by the respondent of his wife’s infidelity as the genesis of the assaults, especially against her. The present offending against his daughter, however, cannot be justified in any sense on similar provocation grounds. Nor do I see the circumstances in the present case as sufficiently exceptional to mitigate in any appreciable way what happened to the other victims here.
[46] For all the reasons I have outlined above, the Judge, in my view, clearly erred in law in his assessment of the gravity of the offending as being, at the most, moderate. In no sense could this description be seen as a permissible option.
[47]The answer to this question, is “No”.
Was the Judge’s finding as to the consequences of the offending available to him, as a matter of law, on the evidence before him?
[48] In this case, the respondent put forward two different consequences which he claimed would result if a conviction was entered. These were that:
(a)It would negatively impact on his confidence and self-esteem and be a stigma; and
(b)It would affect his ability to travel to Australia to visit his daughter.
[49] In concluding his consideration of the consequences of the offending, Judge Brandts-Giesen stated:
You are a man who has reached the age of 58 without any previous conviction. Convictions may affect travel overseas and will put up certain barriers that should not have to annoy you for the rest of your life. There is also the stigma of conviction.
[50] The respondent, however, did not provide any evidence to support this first proposed consequence. I accept the applicant’s contention here that the negative
impact on his self-esteem and any social stigma must be simply an expected consequence of any conviction. It is not a sufficiently serious consequence that is generally taken into account in an application under s 106 as the level of impact will be commensurate to the gravity of the offending.
[51] With regard to the second consequence, the Judge found that convictions here “may” affect travel overseas. This finding, however, is insufficient for the test to be made out. A consequence must be real and appreciable to be considered under s 107.27 However, this comment from the Judge might, at one level, have been a misstatement as the Judge clearly viewed travel problems as a real consequence given his findings. There was some evidence before him as to the potential consequences on the respondent’s travel. The question remains, however, whether this was sufficient to justify the finding that there were real consequences from a conviction.
[52] In Police v M, the sentencing Judge gave Ms M a discharge without conviction for her charge of drink driving. Ms M was a young woman with a promising sports career. The Police appealed that decision on a question of law, querying whether the Judge was entitled to make the decision given the facts. The appellate Court found that the Judge had correctly stated the law. However, it found that there was no sufficient material before the Judge on which he could find that the test in s 107 was made out.
[53] The evidence before the Judge regarding the consequences of a conviction on Ms M was an assertion by her counsel that she had a job offer in the United Kingdom and a conviction would “ruin” her opportunity to travel and take up the job. There was no material beyond this to support the contention that the job offer existed, or that a conviction would prevent Ms M taking it. Indeed, the Judge was not even explicitly told that she intended on taking the position. The Judge referred to his awareness that a conviction for drink-driving could prevent travel to Canada, but there was no suggestion that the respondent proposed to go there in the foreseeable future.
[54] The Judge was given no information about the rules and regulations governing entry into the United Kingdom in cases were an applicant has been convicted and
27 Alshamsi v Police, above n 9, at [20].
sentenced to a non-custodial penalty. The Judge’s decision rested on his determination that he could take judicial notice of the fact that sports men and women needed to travel internationally and a conviction was likely to impede their ability to do that.
[55] The appellate Court accepted that a Judge could take judicial notice of relevant factors. However, it noted that the Court in Brunton suggested that where foreign travel difficulties are to be relied upon, the evidence placed before the Court ought to be detailed and reliable.28 Therefore, while the Judge was entitled to have regard to past cases in which drink-driving offenders had been refused entry to Canada, that was not sufficient to indicate that Ms M would have difficulty getting into the United Kingdom. There was absolutely no evidence to support Ms M’s contention that a conviction would ruin her chance to travel to and work in the United Kingdom.
[56] Thus, the Judge in that case did not have any sufficient evidence before him upon which to grant a discharge without conviction. The proceeding was remitted to the District Court for reconsideration and the sentencing process to be conducted entirely afresh.
[57] In the present case, the respondent provided an affidavit stating that his daughter lived in Australia and that he and his wife often travel there to visit her. He included material from the Australian High Commission website which dealt with entry to Australia of a New Zealand citizen with a criminal conviction. It indicates that the respondent was not prohibited from entry, but would be required to obtain written confirmation from the Department of Immigration and Border Protection before he travelled to Australia.
[58] This evidence, in my view, does not meet the test in Brunton. At the very least, more reliable detail would be required. The presence of the respondent’s daughter in Australia and the respondent’s past trips to visit her there do indicate some desire that the respondent has future plans to travel to see her. The Judge was, therefore, at one level, entitled to recognise that a conviction would have some effect on the respondent when he travelled to Australia. But none of this provided any sufficiently authenticated and reliable evidence of major Australia entry problems for the
28 Brunton v Police, above n 15, at [16];
respondent to meet the required test of real and appreciable consequences from a conviction. Simply being delayed or embarrassed at Australian immigration, or being required to seek advance approval before travelling to Australia, could not be seen as a real, appreciable or unreasonable consequence here.
[59]Therefore, the answer to this question is “No”.
Was the Judge’s finding that the direct and indirect consequences of a conviction for the respondent were out of all proportion to the gravity of the offences available to him as a matter of law?
[60] As noted above, the proportionality test is not a matter of discretion but a matter of fact requiring judicial assessment.29 Therefore, this Court, on an appeal on a question of law, cannot merely substitute its own assessment of the facts for the Judge’s. However, if the Judge’s ultimate conclusion is clearly untenable, then it amounts to an error of law because proper application of the law requires a different answer.
[61] I consider that this is one of those rare cases “in which the true and only reasonable conclusion contradicts the determination”.
[62] Even had I accepted (which I do not for the reasons I have outlined above) the Judge’s findings that the gravity of the offending was only moderate and that a conviction would impact on his ability to travel overseas, the Judge erred in law in finding that this consequence was “out of all proportion to the gravity of the offence”. The consequences of a conviction for the respondent were, at most, moderate. This is not a situation where the respondent would be unable to travel to Australia at all. A conviction would be an inconvenience but not a barrier, as the Court noted, in Yang v Minister of Business, Innovation and Employment.30
[63] The test in s 107 requires there to be a “significant disproportionality of consequence before a discharge without conviction can be properly considered”.31 That test is not met here. Judge Brandts-Giesen, in his decision, found that the gravity
29 H (CA680/11) v R, above n 9, at [30].
30 Yang, above n 21.
31 BC v Police, above n 23, at [9].
of the offending was moderate and that there would be consequences from a conviction that were also moderate. Clearly, therefore, there was no significant disproportionality between the two factors. As a matter of law, the latter could not be found to outweigh the former even if I accept (which I do not) the Judge’s findings as to the gravity of the offending here. The situation must be extreme for the test to be met.32 In the present case, there was insufficient material before the Judge to properly make such an assessment.
[64] The true and only reasonable conclusion available, even on the facts found by the Judge, was that the test for a discharge without conviction was not made out. This was because the consequences of a conviction for offending here, offending which must be seen as in the range of medium to serious, cannot be considered to be “out of all proportion to the gravity of those offences”.
[65]The answer to this question is also therefore “No”.
Result
[66] The Judge erred in law by allowing the discharge without conviction, first, because his assessment of the gravity of the offending here was clearly wrong and, secondly, because there was insufficient material before him by which to find that the consequences of a conviction were out of all proportion to the gravity of that offending.
[67] I, therefore, grant leave to the applicant for this appeal and set aside the decision of Judge Brandts-Giesen to discharge the respondent without conviction.
[68]I enter convictions against the respondent on each of the three charges noted at
[1] above and, given that no submissions were advanced to me related to a possible penalty or sentence, I order that this matter is remitted back to the District Court for sentencing. For the avoidance of doubt, the sentencing process approach is to be conducted entirely afresh.
32 Police v Roberts, above n 22, at 210.
Suppression
[69] In his decision in the District Court, Judge Brandts-Giesen made a blanket suppression order suppressing the names of the respondent and the victims.
[70] At the conclusion of the hearing before me, counsel suggested, and I agreed, that this suppression order could be continued initially by way of an interim suppression order made in this Court. Such an order was made. This was to provide an opportunity for counsel to advance submissions to me on the issue of whether or not a final order should be made.
[71] Counsel for the respondent has now provided detailed submissions dated 8 March 2018 in support of that application she now makes for final name suppression of all parties here.
[72] In a minute I had issued in this proceeding on 7 March 2018, I gave counsel for the applicant until 5 p.m. on 9 March 2018 to file and serve any reply submissions she wished to advance to the Court.
[73] No such reply submissions have been provided to me. I do note, however, that at the hearing of this matter Ms Thomas said that the victims would support continued name suppression and sought an order to this effect. Ms Thomas expressed the opinion, however, that this fact did not necessarily trump the obligations which exist for free and open reporting of criminal cases in this and other Courts.
[74] Noting all these matters, and applying the correct approach to the consideration of name suppression under ss 200(2) and 202(2) of the Criminal Procedure Act 2011, I am of the view that this is a case where the threshold grounds of the likelihood of undue hardship being caused to victims would apply here.
[75] This is a matter which has already attracted a considerable level of media publicity. The principles and the general circumstances involved in this offending are before the Court and continued publication regarding those principles and circumstances here may well occur. This is appropriate.
[76] The need, however, for the identities of the respondent’s wife and daughter to be disclosed (which would occur if suppression of the respondent’s name is lifted, given their relationships and the fact that they share the same surname) is not necessary or desirable. Neither the respondent’s wife, nor his daughter, should be personally subjected to the possible public backlash which might be likely to occur, given this incident. And it is clear they are strongly in favour of continued suppression here.
[77] I am satisfied, too, that the public interest in this case does not outweigh the likelihood of damage to the respondent’s family if his and their identification were to be published.
[78] The grounds set out in both s 200(2)(c) and (f) and s 202(2)(a) of the Criminal Procedure Act 2011 are made out. An order is made suppressing the names and identifying features of the respondent and each of the victims in this case.
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Gendall J
Solicitors:
Preston Russell Law, Invercargill Todd & Walker Law, Queenstown
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