Puriri v Police

[2018] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000014

[2018] NZHC 1682

BETWEEN

RATAUHINGA PURIRI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 June 2018
Counsel:	T Sutcliffe for Appellant A A Pell for Respondent
Judgment:	10 July 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 10 July 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Almao Douch, Hamilton

RATAUHINGA PURIRI v NEW ZEALAND POLICE [2018] NZHC 1682 [10 July 2018]

[1]    Ms Puriri went to a two-dollar shop. She stole a $4.50 mobile phone cord and left the store. Outside the store the shop owner tried to stop her. Ms Puriri slapped the owner twice to the head and pushed her to the ground. The shop owner got up and Ms Puriri kicked her multiple times causing the shop owner to fall to the ground.   Ms Puriri gave the cord back shortly afterwards. She was charged with aggravated assault and theft. Judge Ingram convicted Ms Puriri and sentenced her to 100 hours’ community work. Ms Puriri appeals against the Judge’s decision to refuse discharge without conviction. She wants to be a teacher and is fearful that conviction might preclude that prospect.

[2]    Leave has been sought, by consent, to adduce evidence from the Associate Dean of Teacher Education about the effect of a conviction. Leave is granted.

Jurisdiction

[3]    The threshold test for the appeal is whether a miscarriage of justice has occurred.1 There will be a  miscarriage if  there  has  been a  material  error.  Here, Mr Sutcliffe contends the Judge erred by giving undue weight to the gravity of the offending.

The discretion

[4]    A 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.2 This requires a three-step process: first, identify the gravity of the offence, second, identify the direct and indirect consequences of a conviction; and, third, determine whether the consequences of a conviction are out of all proportion to the gravity of the offence.3 This proportionality test is not a matter of discretion, but rather of judicial assessment.4 The Court may

1      Jackson v R [2016] NZCA 627 at [12]. See also Gaunt v Police [2017] NZCA 590 at [9]-[10].

2      Sentencing Act 2002, s 107.

3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].

4      H (CA680/11) v R [2012] NZCA 198 at [30].

decide whether to exercise its discretion under s 106 only if the s 107 test is met. It remains open to the Court to decline to exercise its discretion to grant a discharge.5

The decision

[5]    Judge Ingram considered the offending to be “a matter of substantial public concern”, having regard to the increasing frequency of assaults on shopkeepers and public concern about such assaults. The Judge considered shopkeepers were particularly vulnerable to violence in keeping a shop open to the public. The offending, in his view, “would fit well within the statutory definition of a robbery… [it] is a serious case and would attract a sentence of  imprisonment in the order of   18 months at least as a starting point in today’s climate.”

[6]    He recorded that Ms Puriri is otherwise young, of good character, has offered reparations, and has entered a guilty plea. He considered that the maximum credit she could be afforded for these factors was a 50 per cent discount from the start point.

[7]    Turning to consider the consequences of a conviction, he noted Ms Puriri’s ambitions of becoming a teacher. He held:

The consequence of a conviction is likely to be that she will not be accepted as a suitable candidate by the authorities responsible for assessing such matters. That is a matter for them and they have a number of public interest factors that they are required to balance.

[8]    Assessing those consequences against his view of the seriousness of the offending, the Judge was a “long way from satisfied” the threshold test was met and:

… the public generally would regard it as being out of all proportion if I took the view that a discharge without conviction should follow.

[9]    Rather, he considered that “the loss of a proposed career is a proper consequence for the actions undertaken.”6 The context of the violent offending was a key issue for the Judge, exemplified by the following passage of his judgment:

I do, however, want everyone to understand that it is my clear and unshakeable view that those who assault shopkeepers in their shops who are simply

5      R v Hughes, above n 3, at [10] and [22].

6      He stressed however that he was not implying Ms Puriri would never make a good teacher.

protecting their own livelihood should expect that the Courts will take it as a very serious offence particularly where violence is meted out in the way it has been here.

The argument

[10]Mr Sutcliffe submits the Judge erred:

(a)By over-emphasising the aggravating features of the offending, evident from the Judge’s assessment that the offending was akin to a robbery and attracted a starting point of 18 months;

(b)In finding the consequences for the shopkeeper were substantial; and

(c)By factoring into account what the public might think.

[11]Mr Sutcliffe then submits that the following factors favour discharge:

(a)Ms Puriri’s actions were the spontaneous acts of a teenage girl;

(b)The actions occurred outside the shop and resulted in only minor injuries, suggesting there was little force;

(c)Ms Puriri returned the cord before leaving, cooperated with the police, offered to participate in restorative justice, paid reparation and is remorseful;

(d)This is her first appearance before the Courts and she is unlikely to trouble the Courts again; and

(e)Ms Puriri is undertaking various courses which are focused towards her goal to becoming a teacher, but has been advised that the conviction will preclude a career in teaching.

[12]   Mr Sutcliffe also refers to case law where the Courts have granted a discharge to enable a young person to pursue a career and various cases where it is said the offending was more serious, yet discharge was granted.7

[13]   Mr Pell responds by identifying the aggravating features of the offending. He says the gravity is increased because the offending involved an attack to the head, forcefulness, kicking the victim while she was on the ground, theft and the shopkeeper’s vulnerability. He also identifies the mitigating features such as remorse, good character and youth and submits these factors were considered by the Judge when assessed the gravity of the offending as moderate to high.

[14]   Turning to the consequences of conviction, Mr Pell refers to Maraj, noting it as authority for the proposition that discretionary assessments of suitability for a course are appropriately left to the relevant academic institution.8 He also says there was no proper evidential foundation in the District Court that would suggest the appellant’s applications would be impeded by her convictions.

[15]   He refers to the evidence of the Associate Dean, Beverley Cooper, who advised that all prospective students must be vetted by the Police, a process which reveals a full criminal history including discharges without conviction, withdrawn charges, and acquittals, rather than just a conviction history. This means, he says, the conviction will only have a marginal, if any, additional effect in terms of Ms Puriri’s eligibility. He also noted that persons with convictions for an offence that carries more than three months imprisonment are not “normally accepted”, but there is provision for exceptional cases. Moreover, Mr Pell submits that this Court has previously indicated reluctance to interfere with the assessments of institutions mandated to obtain Police vetting, because that signals the importance of that screening exercise to the institution. Finally, he submits that conviction is not out of all proposition to the offending in this case, which involved strikes to the head and kicking a vulnerable victim to the ground.

7      Tupu v Police [2014] NZHC 743; Tahitahi v Police [2012] NZHC 663; Oldfield v Police [2014] NZHC 3308.

8      Maraj v Police [2016] NZCA 279 at [28].

Assessment

[16]   While the Judge’s concern for shopkeepers is understandable, he erred in law by categorising the offending as falling within the definition of robbery, with a starting point of 18 months. As Mr Pell properly conceded, the offending does not fall within the definition of robbery. “Robbery” is theft accompanied by violence … to extort the property stolen or to overcome the resistance to the property being stolen”. In this case, the theft had been completed, Ms Puriri was outside the store and in fact, was confronted by the shop owner. This is not a semantic error. Robbery attracts a maximum sentence of 10 years because the violence is inherent to the theft process.9

[17]   Moreover, had the police considered the offending amounted to a robbery, then Ms Puriri should have been charged with robbery. They did not, and Ms Puriri did not plead to a charge of robbery. I have little doubt she would have pleaded not guilty to a robbery charge. The Judge was therefore wrong, in law, to sentence Ms Puriri as if the aggravated assault “fit well within the definition of robbery”. The significance error further manifests itself in the starting point of 18 months. While the slaps to the head and the kicking are aggravating features, the resultant injuries were minor. A start-point of 18 months, or the mid-point for an aggravated assault, was excessive. Having found an error of law, I will consider the s 107 assessment afresh.

[18]   For completeness, I do not accept the Judge gave undue regard to public opinion. Plainly, it would be wrong to elevate public opinion to a touchstone for sentencing. Indeed, it would inimical to the rule of law to judge according to public opinion. But all Judges are naturally mindful their decisions must not be out of touch with prevailing societal norms and expectations. Judge Ingram’s exhortation to the “public generally” did no more than that.

Gravity

[19]   However, I disagree with the Judge’s characterisation of the offending. It was more serious than a simple push and shove, but it is nothing like the highly publicised

9      Simon France (ed) Adams on Criminal Law – Offences and Defences (online loose-leaf ed, Thomson Reuters) at CA234.07. See also R v Newell (2007) 217 CCC 483 (NFCA) at [18]-[30].

dairy robberies, involving gratuitous violence causing serious harm, often with weapons, which he alluded to. Rather, while the physical acts of assault were moderately serious; overall, having regard to Ms Puriri’s good character, youth (she was 18 at the time of the offending), the precise context of the offending (outside the shop, pursued by the shopkeeper) and the minor harm in fact caused, the gravity of the offending sits at the lower end of the range. As Mr Sutcliffe put it, the assault was an uncharacteristic, spontaneous act of a teenager, which caused only minor injuries.

[20]   I am fortified in this view by the approach taken by Venning J in McDonnell.10 In that case a security guard at a busy bar tried to punch an intoxicated patron while he was on the ground. The guard was then separated from the patron, but broke free and kicked him in the face, causing minor bruising and skin abrasions. The guard was charged with one charge of injuring with intent to injure.11 The maximum sentence is 5 years imprisonment. He was convicted and sentenced to 200 hours’ community work and nine months’ supervision.

[21]   When assessing gravity, Venning J identified youth, and the guard’s sole charge of a busy bar, as relevant factors, but said most significantly, the consequential injuries were minor and non-lasting. The Judge also referred to multiple cases where discharges were granted following assault and concluded:12

So while the offence of injuring with intent to injure is serious, against that it was a spontaneous act by a young man in a difficult situation. It led to minor and non-lasting injuries on the complainant. It has to be regarded as towards the lower end of offending of this nature.

Consequences

[22]   As noted in Gaunt, the black mark of conviction can be a very heavy burden for a young person without a foothold in a career.13 At 19, Ms Puriri is literally making her very first steps into adulthood and is seeking to obtain entry into professions, such as teaching and nursing. The woeful statistics of Maori underachievement in all walks

10     McDonnell v Police [2012] NZHC 2480.

11 The judgment also refers to a charge of assault with intent to injure which carries a maximum sentence of three years. I am unable to discern which is correct, though a kick to the face could attract both types of charge.

12     McDonnell v Police, above n 10, at [15].

13     Gaunt v Police [2017] NZCA 590 at [15].

of life, are testament to the difficulties confronting Ms Puriri as she embarks on this important phase of her life.14

[23]   Mr Pell makes the good point that Ms Puriri has successful parents with strong academic qualifications and that her whanau will support her, thus lessening the potential impact of the conviction. But, the fact of whanau support (enjoyed by most young people) does not offset the clear impact of conviction for Ms Puriri in terms of educational and employment prospects.

[24]   I acknowledge that the conviction is a natural consequence of offending of this type. As the Court of Appeal made clear in Maraj, there must be evidence supporting a claim that conviction carries a material risk to a defendant, for example exclusion from an educational institution or a profession.15 In Maraj, there was equivocal evidence only of the potential impact on Mr Maraj entering advanced medical study and practice. It was also accepted that it may be appropriate to defer to the evaluative processes of academic institutions which are best placed to assess the significance of conviction. His appeal against conviction was therefore dismissed.

[25]   In the present case, I have two-pronged evidence that Ms Puriri’s ability to pursue a career in teaching is likely to be seriously affected by conviction. First, the Initial Teacher Education Programme includes the following statements relating to selection:

(a)All applicants must complete a “consent to disclosure of information form”;

(b)Candidates who have been convicted of an offence which could result in 3 months’ imprisonment or more will not normally be accepted into the programme.

(c)In any exceptional case where the acceptance of such a candidate is considered, the matter will be presented to the Dean who will discuss

14     See for example Lisa Marriott and Dalice Sim Indicators of Inequality for Maori and Pacific People (Victoria University, Working Paper 09/2014, August 2014).

15     Maraj v Police, above n 8, at [31].

the circumstances with the Director of the Educational Council before a decision is made.

[26]   Second, Ms Trudy Taukamo, who has been involved in education for 15 years, and is a person with management responsibilities in an educational facility, said that any person with a criminal conviction pertaining to assault is highly unlikely to be hired or interviewed. She also expressed the view that any person with a serious assault conviction would never be accepted into the teacher training programme.

[27]   Responsibly, Ms Puriri filed a supplementary affidavit updating the Court on her aspirations. She indicates that following her sentencing she has become disheartened about the prospect of securing a place in an initial teaching programme and has made inquiries about nursing. This looks positive, with the nursing school indicating that she will be accepted and if she stays out of trouble, the school will issue her a certificate of good character. She remains fearful however that her convictions will still affect her employment prospects.

[28]   I am therefore satisfied that there is a real and appreciable risk that Ms Puriri will not be accepted into teaching training or employment because of the assault conviction. As Judge Ingram put it:

The consequences of conviction is likely to be that [Ms Puriri] will not be accepted as a suitable candidate.

[29]   There is, I also accept, a lesser risk that she will not be able to pursue a career in nursing. All of this however serves to emphasise that at 19, Ms Puriri is in the throes of making very important life decisions and the conviction, if not discharged, will be a key factor limiting and thus influencing those choices.

[30]   Is that consequence out of all proportion? I have come to the view that it is. In this regard, while deference to academic institutions is to be expected, this case highlights the difficulties with a conviction for the offending in this case presents for a young woman like Ms Puriri. As the Judge’s reaction in this case shows, it is easy to generalise about, and with respect, over-emphasise the seriousness of the present offending. It would be very difficult for a young woman to mitigate this effect, even

with the support of whanau. In this regard, the comments made by the Court of Appeal in DC (CA 47/2013) resonate in this case:16

[45]      In our judgment there was sufficient material before the Judge on which he could reach the necessary level of satisfaction about the consequences of the offending. It was, with respect, inevitable that Mr DC's convictions would have real consequences for his employment. He would have to disclose convictions when applying for any position. Disclosure would have an adverse effect on a prospective employer regardless of whether the convictions were directly relevant to the field of information technology. Its existence would of itself either operate as an immediately disqualifying factor or elicit an inquiry, at the very least, with an attendant obligation to explain.

[46]      We are satisfied the circumstances before the Judge were more than sufficient to raise a real or appreciable risk that convictions would have direct and adverse consequences upon Mr DC's prospects of obtaining employment in his field of expertise.

[31]   I am also fortified in this view by the observations made by Venning J in McDonnell.17 In that case the guard was training to be a teacher. On being convicted, disconsolate, he dropped out. There was also evidence that the real impact of a conviction for assault is felt when the person applies for a job; the evidence suggested it would almost be impossible to get a job with such a conviction. The Judge then observed that a conviction would pose real difficulties in the appellant’s future employment. Venning J concluded that conviction would therefore be out of all proportion to the offending.

[32]   I acknowledge that this case is about aggravated assault, and there is a significant public interest in discouraging this type of theft related assault. But, for the reasons expressed, the specific facts of this offending place it at the lower end of the spectrum.

Discretion

[33]   I see no reason to refuse discharge pursuant to s 106. I understand that an offer of $1,000 in reparation was made and accepted. Ms Puriri is clearly remorseful and has taken steps, together with her whanau, to redress the harm done. These are strong factors favouring discharge. I acknowledge the victim impact statement, and the

16     DC (CA47/2013) v R [2013] NZCA 255.

17     McDonnell v Police, above n 9, at [20]-[23].

references there to ongoing harm. But overall, I consider that discharge without conviction on payment of reparation in the sum of $1,000 is the correct result.

[34]   Accordingly, for the reasons stated above, I am satisfied that the Judge erred by not discharging Ms Puriri without conviction. The appeal is therefore allowed.  Ms Puriri is discharged without conviction, but must pay reparation in the sum of

$1,000 to the victim of her offending by 1 August 2018.