R v Hughes
[2008] NZCA 546
•16 December 2008
For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA228/2008
[2008] NZCA 546THE QUEEN
v
ANDREW ZOLTAN HUGHES
Hearing:15 October 2008
Court:O'Regan, Potter and Fogarty JJ
Counsel:R Gould for Appellant
G H Allan and K Bicknell for Crown
Judgment:16 December 2008 at 11.30 am
JUDGMENT OF THE COURT
A THE QUESTION STATED FOR THIS COURT:
Has s 107 of the Sentencing Act 2002 created a threshold for the exercise of the discretion to discharge without conviction that is different from the test expressed in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and in Police v Roberts [1991] 1 NZLR 205 (CA)?
is answered:
The wording of s 107 clearly adopts the test applied in both Turner and Roberts and we do not believe s 107 was intended to materially alter the threshold. But in considering whether the threshold test in s 107 has been met and in the exercise of the discretion under s 106, Judges should focus on the requirements of the Sentencing Act 2002, rather than on cases under statutory provisions that have now been repealed.
B The appeal is dismissed.
__________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)Table of Contents
Para No
Introduction [1]
Sections 106 and 107 Sentencing Act 2002 [6]
Turner and Roberts [13]HAS S 107 CHANGED THE JUSTIFYING PRINCIPLE OF DISPROPORTIONALITY
for a discharge without conviction? [20]
HAVE THE PARAMETERS WITHIN WHICH THE DISPROPORTIONALITY
principle operates been changed by s 107? [25]
Onus of proof [42]
The sentence appealed [54]
Background facts [55]
Appellate approach [63]
The Judge’s reasoning [67]
Submissions for appellant [75]
Submissions for the Crown [77]
Discussion and conclusion [80]
Result [86]Introduction
[1] On 4 August 2008 this Court granted special leave to appeal on the question:
Has s 107 of the Sentencing Act 2002 created a threshold for the exercise of the discretion to discharge without conviction that is different from the test expressed in Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and in Police v Roberts [1991] 1 NZLR 205 (CA)?
[2] Both the appellant and the Crown take the position that the test is unchanged. The Crown added the rider that to the extent that Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) and Police v Roberts [1991] 1 NZLR 205 (CA) might have countenanced circumstances other than disproportionality between the gravity of the offending and adverse consequences of a conviction as properly justifying exercise of the discretion, disproportionality is the only justification under s 107.
[3] The real point of difference between the appellant and the Crown is the application of the disproportionality test in the circumstances of this case by the sentencing Judge in the District Court and by the High Court on appeal.
[4] The appellant was found guilty following a defended hearing in the District Court at Wellington on two charges under the Summary Offences Act 1981, namely following a complainant knowing that his conduct was likely reasonably to frighten her (s 21(1)(b)) and being found without reasonable excuse in an enclosed yard (s 29(1)(b)). He was convicted and ordered to come up for sentence if called upon within the next six months.
[5] On appeal, Gendall J considered the offence under s 29(1)(b) of being found without reasonable excuse in an enclosed yard, to be simply an extension of the intimidation offence. He allowed the appeal in part and discharged the appellant without conviction on that charge. He upheld the sentence for the intimidation charge: HC WN CRI 2007-485-155 18 March 2008. He declined leave to appeal to this Court: HC WN CRI 2007-485-155 16 April 2008. This Court granted special leave on 4 August 2008, on the question set forth in [1]: [2008] NZCA 275.
Sections 106 and 107 Sentencing Act 2002
[6] Section 106 of the Sentencing Act 2002 provides for discharge without conviction:
Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
(3)A court discharging an offender under this section may –
(a)make an order for payment of costs or the restitution of any property; or
(b)make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered –
(i) loss, or damage to, property; or
(ii)emotional harm; or
(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c)make any order that the court is required to make on conviction.
(3A)If the court is considering making an order under subsection (3)(b), it may order a report to be prepared under section 33 as if the court were considering imposing a sentence of reparation.
(4)Despite subsection (3)(b), the court must not order the payment of compensation in respect of any emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in section 4.
(5)Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.
(6)When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.
(7)Nothing in section 320 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 applies to sentencing proceedings.
[7] Section 107 provides:
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.
[8] Although the heading to s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.
[9] In R v Rajamani [2008] 1 NZLR 723, the Supreme Court considered a discretion under s 374(4A) Crimes Act 1961 for a trial judge to proceed with a trial with ten jurors without the agreement of the prosecutor and the accused, which could be exercised if the Court considered the trial should proceed with fewer that 11 jurors “because of exceptional circumstances”. The Supreme Court said the determination of whether there were exceptional circumstances was not a matter of discretion; it was “a matter of fact requiring judicial assessment”: at [4]. The discretion to proceed with ten jurors existed only if there were exceptional circumstances.
[10] If that analysis is applied to the provisions in issue in the present case, the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani at [5]. The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.
[12] We are of course bound by Rajamani but in the present context the factors that inform the judicial assessment under s 107 are likely to be, or at least to be included in, the factors that inform the exercise of the court’s discretion under s 106. So, in practice, a favourable exercise of the s 106 discretion is likely to follow from a decision that the s 107 test is met and the factors informing both stages will overlap to a large degree.
Turner and Roberts
[13] The question on appeal requires examination of the test expressed in Turner and Roberts.
[14] In Turner a discharge without conviction was granted for an offence under the Fisheries (General) Regulations 1950. The Crown was granted special leave to appeal, but the appeal was dismissed on the basis that the Magistrate could not be said to have exercised his discretion on a wrong principle.
[15] The empowering provision under which the Magistrate exercised his discretion to discharge without conviction was s 42 of the Criminal Justice Act 1954 which relevantly provided:
Power of Court to discharge offender without conviction or sentence –
(1)Where any person is accused of any offence, any Magistrate’s court, after inquiry into the circumstances of the case, may in its discretion discharge that person without convicting him, unless by any enactment applicable to the offence a minimum penalty is expressly provided for.
…
Section 42(4) provided that a discharge under the section was deemed to be an acquittal.
[16] Justice Richardson (as he then was) identified a three step approach to the exercise of the court’s discretion under s 42. The court must consider first, the gravity of the offending; secondly, the consequences of conviction; finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.
[17] He said (at 241 – 242):
Section 42 confers an unfettered discretion on the Court to give an absolute or conditional discharge without conviction in any case where a minimum penalty is not provided for. In the exercise of that discretion the Court must take all relevant considerations into account and must ignore all irrelevant considerations. The real question then is whether statutory consequences of a conviction may be taken into account and given appropriate weight as considerations relevant to the exercise of the discretion. Put in that way, there can be only one answer. In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42. (emphasis added)
[18] Section 42 was replaced by s 19 of the Criminal Justice 1985. The leading decision regarding the interpretation of s 19 is Roberts. Mr Roberts was convicted of possession of a small amount of cannabis. In the District Court the sentencing Judge declined to discharge without conviction. That decision was upheld on appeal but the High Court granted leave to appeal. This Court held that the case was not one in which the possible indirect consequences of the conviction were out of all proportion to the gravity of the offending in the particular circumstances, and accordingly dismissed the appeal.
[19] Section 19 was materially the same as the former s 42, however it omitted the words “after inquiry into the circumstances of the case”. Justice Bisson delivering the judgment of this Court said that Richardson J’s comments as to the exercise of the court’s discretion under s 42 was equally applicable under s 19, notwithstanding the omission from s 19 of those words: at 209. The Court cited from the judgment of Richardson J in Turner at 241 (refer [15] above) and continued (at 210):
That paragraph refers to a number of considerations which may be relevant to the exercise of the Court’s discretion but it is not exhaustive as there may be other relevant circumstances, bearing in mind that the discretion is absolutely unfettered … the public interest may require a conviction to be entered because of the nature of the offence and the particular occupation or proposed occupation of the offender. On the other hand, the offence may be so trivial that public interest does not call for a conviction to be recorded. In that case nothing of any significance is being concealed. It has been said that the discretion should be exercised sparingly and only in exceptional cases but even those expressions tend to fetter the wide discretion under s 19 and are hardly of any assistance. Obviously each case must be considered on its own merits and there would not be a proper exercise of the discretion if cases were treated one way or another depending on their category … in the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court’s discretion “if the direct and indirect consequences of the conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence”. That must be the overriding consideration. The words “out of all proportion” point to an extreme situation which speaks for itself. (emphasis added)
Has s 107 changed the justifying principle of disproportionality for a discharge without conviction?
[20] Justice Gendall in the sentencing judgment of 18 March 2008 said that s 107 of the Sentencing Act may have been enacted to reflect the judicial pronouncement in Turner, but the section had “inverted” the language of Richardson J, being expressed in the imperative: at [30].
[21] In Turner Richardson J said that if, in the court’s judgment, the test of disproportionality was met, it was “proper for a discharge to be given under s 42”: at 242. In Roberts Bisson J described the test of disproportionality as “the overriding consideration”: at 210. Both judgments infer that meeting the test of disproportionality is both essential and decisive, while not stating the requirement as an imperative in the manner of s 107.
[22] In our view, s 107 simply confirms the essentiality of the disproportionality test expressed in Turner and Roberts. Unless the court is satisfied under s 107 that the disproportionality test has been met, the discretionary power of the Court conferred by s 106 cannot be invoked.
[23] We do not consider descriptions of the disproportionality test such as “very stiff”, “exceptional”, or extreme to be helpful. While stating that the words “out of all proportion” point to an “extreme situation”, Bisson J in Roberts also said (refer [19] above) that expressions suggesting the discretion should be “exercised sparingly” and “only in exceptional circumstances” tended to fetter the wide discretion under s 19, and are “hardly of any assistance”: at 210. We agree with the latter statement. We note that Richardson J in Turner did not apply any such descriptors or qualifiers. The test is the test. Simply, under s 107 the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, before it may consider the exercise of the discretion conferred by s 106 to discharge without conviction.
[24] We also see the references in Turner and Roberts (refer [17] and [19] above) to the discretion being “unfettered … absolutely unfettered”, as inappropriate in the context of ss 106 and 107. The Court must take into account all relevant factors, including those described in [41] below which must inform the Court’s assessment under s 107, and there may be other factors which, in the circumstances of the particular case, are also relevant to the exercise of the Court’s discretion under s 106. The exercise of the discretion is informed by all these relevant factors; it is not “unfettered”.
Have the parameters within which the disproportionality principle operates been changed by s 107?
[25] Counsel for the appellant submitted that recent authorities have interpreted s 107 “as a lower threshold than that enunciated in Turner and Roberts”.
[26] In support of this submission Ms Gould referred to a number of recent cases in which the discretion under s 106 has been applied, and particularly to the judgments of Miller J in Delaney & Ors v Police HC WN CRI 2005-485-22-28 22 April 2005 and Montgomery v Police HC PN CRI 2005-454-70 11 April 2006.
[27] In Delaney Miller J commented, in relation to what he described as “a prohibition” created by s 107, that it is a reasonable inference from the use of Richardson J’s language in Turner that the drafter of the Sentencing Act simply intended to adopt the standard developed by the courts: at [27]. He continued (at [28] - [29]):
Section 106(1) also provides that section 10 of the Sentencing Act must also be taken into account. That section provides that when sentencing “or otherwise dealing with” an offender, the Court must take into account offers of amends, remedial action, or apologies. Section 106(6) provides:
When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.
Against that background, I consider that “the gravity of the offence” should be read as including not only the offence itself but also anything that may affect the Court’s subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court’s assessment of how likely it is that the offender will reoffend, the victim’s perspective, and any consequence already suffered by way of reparation, community work, or publicity.
[28] In Montgomery Miller J confirmed that approach stating (at [10]):
In Delaney, I held that considerations such as attendance at a restorative justice conference, community work undertaken, and willingness to make reparation are relevant considerations under s 106 and s 107. The phrase “the gravity of the offence” in s 107 includes not only the offence but anything that may affect the Court’s subsequent assessment of overall culpability”.
[29] Counsel referred to other recent cases which she contended reflected “this broader interpretation of the Act in discharge applications”, namely R v Walker HC HM CRI 2008-072-711 15 July 2008, Pile v Police HC DN CRI 2007-412-000048 7 September 2007, Harvey & Ellen v Police HC CHCH CRI 2007-409-000235 13 February 2008. She accepted that a divergence of view had been noted by Heath J in Hsu John Cheng Chung v Police HC AK CRI 2008-404-60 28 July 2008 at [18], as to the breadth of the s 106 discretion having regard to the “guidance” provided by s 107.
[30] The principal position of the Crown advanced by Mr Allan, is that the Sentencing Act has not altered the scope of the factors relevant to the discretion under Turner. He said that must be so particularly in light of the comments of Woodhouse J in Turner that the discretion (at 236):
… could be properly and fairly exercised only when every legitimate interest of the offender has been taken into account as well as the relevant considerations affecting the wider interests of the community as a whole.
[31] The Crown accepted that s 106 offers a mechanism of “otherwise dealing with an offender” and that the discretion to discharge without conviction is therefore subject to the guiding purposes and principles of sentencing mandated by the Sentencing Act, as well as other relevant considerations.
[32] Counsel referred in particular to the purpose in s 7 of holding an offender accountable for harm done to the victim and the community. Also the principle in s 8(h) that requires a court in sentencing to take into account:
… any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe
[33] He said that other principles of sentencing set forth in s 8 reflect the need stated in Turner, for a sentencing court to take into account all legitimate interests of the offender and relevant considerations affecting the wider interests of the community. Counsel identified the gravity of the offending and the culpability of the offender (s 8(a)); the seriousness of the type of offence in comparison with other types of offences (s 8(b)); effects of the offending on the victim (s 8(f)); any outcome of restorative justice processes (s 8(j)). Counsel further submitted that the list of aggravating and mitigating factors in s 9 are also matters relevant to the test expressed in Turner and Roberts. Likewise an offer or agreement to make amends was made specifically relevant by s 10.
[34] Mr Allan submitted that the various cases referred to by the appellant simply exemplify the application by the courts of the continuing relevance, under the statutory scheme of the Sentencing Act, of factors previously considered relevant under the test in Turner and Roberts.
[35] We agree with the thrust of the Crown’s submissions.
[36] Section 4(3) of the Sentencing Act provides that:
(3)For the purposes of this Act, otherwise dealing with an offender or other means of dealing with an offender—
(a)means dealing with the offender in relation to an offence following a finding of guilt or a plea of guilty, instead of imposing a sentence; and
(b)to avoid doubt, does not include dealing with a person for non-payment of a sum of money, disobedience of a court order, or contempt of court.
Section 11 requires the court, before entering a conviction and imposing a sentence, to consider whether the offender would be more appropriately dealt with under any of the provisions of ss 106, 108 and 110.
[37] It follows that “in sentencing or otherwise dealing with an offender”, the purposes and principles of sentencing set out in ss 7 and 8, the aggravating and mitigating factors which apply under s 9 and taking into account offer or agreement to make amends under s 10, are all factors relevant to the application of the disproportionality test under s 107.
[38] Sections 8, 9 and 10 all use the term “must” as s 107 does. This appears to be a feature of the drafting style used in the Sentencing Act: even where provisions are mutually exclusive, they “must” be taken into account. It may be questionable whether the Legislature really meant that a large number of different factors which may or may not be relevant to a particular sentencing decision all “must” be taken into account or otherwise applied. Be that as it may, the approach taken by Miller J in Delaney and Montgomery is supported by the application of the factors in ss 8, 9 and 10 (which “must” be applied) to decisions to “otherwise deal with” an offender (including under s 106). His inclusion within the concept of “gravity of the offence” of matters affecting overall culpability is also supported by the similar wording in s 8(1) where “gravity of offending” is said to be inclusive of “the degree of culpability of the offender”.
[39] Sentencing Judges are now required to follow the approach mandated by the Sentencing Act so comparison with cases under earlier Acts is not necessarily helpful. But, in order to address the question for which leave was given, we comment that, looked at in broad terms, the fact that the criteria discussed above are now embodied in the Sentencing Act and mandated for consideration by the court in dealing with an offender does not expand the factors relevant to the disproportionality test as enunciated in Turner and Roberts, nor lower the threshold for the test. Given the broad approach to the application of s 42 of the Criminal Justice Act as enunciated by Woodhouse J, that “every legitimate interest of the offender” and “relevant considerations affecting the wider interests of the community as a whole”, must be taken into account before the discretion could be properly and fairly exercised, it is difficult to conceive that the statutory scheme and the express provisions of the Sentencing Act, could in any way limit or lower the threshold established by Turner and Roberts.
[40] Indeed, given the broad parameters for the application of the disproportionality test established by those cases, it is possible that in any particular case there would be relevant factors to be taken into account in the application of the disproportionality test under s 107, which are not expressly referred to in the Sentencing Act, though the Act must be the first point of reference for the sentencing Judge.
[41] In summary, the parameters within which the disproportionality principle operates have not been changed by s 107. Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of those factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
Onus of proof
[42] Neither Turner or Roberts recognised a positive onus on the defendant to establish that the test of disproportionality had been met.
[43] The Sentencing Act now makes the situation clear. Section 11 requires the Court before entering a conviction and imposing a sentence to consider the alternatives available under ss 106, 108 and 110.
[44] Subpart 5 of the Sentencing Act which includes s 106, also provides to the sentencing court discretions by s 108 to convict and discharge an offender (but only if the Court is satisfied that a conviction is sufficient penalty in itself: s 109), and by s 110 to order an offender to come up for sentence if called on, instead of imposing a sentence. (This was the provision under which the order was made by the sentencing Judge in the District Court in relation to the appellant.)
[45] Section 11(1) directs the court, before entering a conviction and imposing a sentence, to consider whether the offender would be more appropriately dealt with under ss 106, 108 and 110. This requirement is subject under s 11(2) to any presumption in favour of a particular sentence specified by any other enactment for a particular offence.
[46] The court is further mandated by s 8(g) to impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and orders set out in s 10A of the Act. In s 10A, discharge or order to come up for sentence if called upon, is the least restrictive sentence in the hierarchy.
[47] Because s 11 places on the court the onus of considering the alternative ways of dealing with an offender under ss 106, 108 and 110 before entering a conviction and imposing a sentence, whether or not application is made for discharge without conviction (or for either of the other options referred to in s 11), the court must consider these alternatives before entering conviction and sentence.
[48] Obviously in order to ensure that all relevant matters are before the court for consideration, and to facilitate judicial consideration of any of the options referred to in s 11 including the option of discharge without conviction under s 106, an offender will raise for the consideration of the court the alternative for discharge without conviction where all the circumstances of the case may justify the Court in exercising the discretion conferred by s 106.
[49] But there is no onus on the offender to establish that the disproportionality test has been met. Rather, in terms of s 107 the requirement is that “the court … is satisfied” it has been met. In R v Leitch [1998] 1 NZLR 420 at 428, this Court said the need to be “satisfied” calls for the exercise of judgment by the court, and that it is inapt to import notions of the burden and standard of proof.
[50] In similar vein, this court said in R v White (David) [1988] 1 NZLR 264 at 267:
The phrase “is satisfied” means simply “makes up its mind” and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification to “is satisfied”: Blyth v Blyth [1966] AC 643. In that case the House of Lords rejected the view of the Court of Appeal that “it is satisfied” means “satisfaction beyond reasonable doubt”.
[51] In the context of s 107, Ronald Young J said in “BC” v Police CRI 2003-485-101 2 June 2004 at [8]:
I do not see the use of the word “satisfied” identifies a need for an analysis of onus and standard of proof. I do not consider it is helpful to approach s 107 by suggesting that the onus is on the perpetrator of a crime to establish on the balance of probabilities the statutory imperatives. I think the proper course is for the Court to assess all the relevant evidence and decide whether it is satisfied that the statutory test is made out.
[52] This approach has been approved and adopted by Randerson J in Iosefa v Police HC CHCH CIV 2005-409-64 21 April 2005 at [34] and by Asher J in Alshamsi v Police HC AK CRI 2007-404-000062 15 June 2007 at [13]. A different view was expressed by Heath J in Police v Devereux HC AK A03/02 27 June 2002 at [64](b), where he observed, obiter, that the provisions of s 107 would require an offender to establish the direct and indirect consequences of the conviction would be out of all proportion to the gravity of the offence. That observation preceded the coming into effect of the Sentencing Act.
[53] We consider the principles are correctly stated in “BC” v Police, though we would substitute the phrase “all relevant material before it” for “all the relevant evidence” in the passage cited at [51] above, to make it clear that the sentencing Judge can assess all information that is relevant to the disproportionality analysis. Section 107 imports no onus of proof. The requirement is simply for the court to be satisfied that the disproportionality test has been met. But, as noted earlier, it could be expected in the normal run of things that an offender seeking a s 106 discharge would put before the court information, or draw the Judge’s attention to information in reports before the court which, if accepted, would provide a basis for the sentencing Judge to be satisfied that the s 107 test was met and that a decision in his or her favour under s 106 was appropriate.
The sentence appealed
[54] We turn to consider the sentence imposed in this case. The appellant contends that he should have been discharged without conviction under s 106, and that the Judges in the District Court and High Court were wrong not to do so.
Background facts
[55] The background facts in relation to the offending were set out by Judge Harrop in his sentencing notes and adopted by Gendall J in the judgment on appeal against sentence:
At about 11.30 p.m. on 4 May, [the complainant] was driving up Cortina Avenue in Johnsonville and noticed Mr Hughes’ car come up fast behind her. She decided to move over, but Mr Hughes’ car, as she put it, “hovered quite a bit” alongside her, being parallel with her vehicle at that point for a few seconds. She was not able to see who was in the car, because it was dark. Having pulled over she waited for the other car to go ahead of her, which it did. Shortly afterwards she passed a side street and notice that Mr Hughes’ car was parked with its lights off, having apparently done a U-turn at the entrance to that street, so that it was parked facing towards her. The lights were then turned on and the car began to follow her again. The car sped up to catch up to her. She noticed that the lights in the following car were flicked on to high beam and back to low or normal beam again. That happened several times over the next few minutes. [The complainant] became quite concerned at what was going on and, because she was scared, she drove a little faster than normal wanting to get home. When she turned right, from the road that leads out to Makara Beach, along Ohariu Valley Road, she was very concerned to see that the vehicle turned and followed hers. There were no other vehicles around and she wished there was one.
She first tried to ring her father on his cellphone but there was no reply, so she rang his home and spoke to his partner, … By this time she was screaming and crying and the vehicle continued to be travelling right up behind her. When she reached her farm, she turned up the long driveway and kept her hand on the horn. She was relieved to see her father coming down the driveway towards her and pass her. She kept going to the house where she felt safe.
[56] Judge Harrop, who presided at the defended hearing in the District Court, found that the vehicle driven by the appellant progressed up the driveway for about 30 metres past the cattle-stop entrance and then began reversing out, and he accepted the father’s evidence:
That the pursuit effectively continued on to the property. I’m sure that if it had not been for his arrival on the scene, Mr Hughes’ vehicle would not have stopped and reversed as it did but continued the pursuit. The reversing was a reaction to seeing the [father’s] vehicle coming the other way … they thought they had “better get out of here”.
[57] The appellant and his girlfriend gave evidence to the effect that they thought a male they knew was in the complainant’s car and that was the reason they had taken an interest in it. But when it was clear it was not that man, they had continued to drive because the appellant’s girlfriend thought it may have been one of his sisters, so they followed the vehicle to Ohariu Valley Road because that was where they understood she lived. The appellant’s girlfriend’s evidence was that there was no intention to frighten the driver and that the bumpy road was the cause for variation in the headlights, and that they were simply reversing in the property’s driveway in order to turn around.
[58] The Judge, having heard from the complainant, her father, and the accused and his girlfriend and seeing them cross-examined said:
I am entirely satisfied that this was a deliberate pursuit of [the complainant] with at least the requisite level of knowledge on the part of Mr Hughes that she would be scared by what he did. I do not accept the denials that he and Ms Turner provided and I find that their innocent explanations for the pursuit unbelievable.
[59] The Judge said that the evidence indicated clearly to him that:
They decided to play a form of foolish prank to try to scare [the complainant]. They certainly had that effect. I do not accept that the way they followed her vehicle is consistent with what they say they were doing. Instead they were deliberately and for a significant distance “right up her backside” as her father saw.
[60] The Judge said that the other explanation concerning a belief as to the appellant’s sisters living in the area was:
Just too incredible for belief. The turning down the side street, doing a U-turn, switching the lights off, then resuming the pursuit is entirely consistent with a deliberate pursuit and entirely inconsistent with an innocent following … I find that the headlights were, on several occasions, deliberately flashed at [the complainant], which can only have been done to scare here.
[61] In finding the frightening charge proved beyond reasonable doubt, the Judge said:
I am satisfied that [the appellant] must at the very last have been aware of the real risk that the way he drove would be likely to frighten the female who was driving the car he pursued. Indeed, the manner of his driving suggests he intended that she be frightened – a result that he certainly achieved.
[62] Judge Harrop also found proved the second offence under s 29(1)(b) of the Summary Offences Act 1981 but on appeal Gendall J regarded that offence as simply an extension of the intimidation offence, and while correctly found to be proved, was of minimal seriousness. He accordingly discharged the appellant on that count.
Appellate approach
[63] Gendall J referred to the judgment of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141, which modified the traditional approach on appeal that the appellant bears the onus of satisfying the Court that it should differ from the original decision and that any weight given by the appellate court to the original decision is a matter of judgment: at [33] – [35]. He cited the following excerpt from the judgment (at [16] in Austin, Nichols):
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[64] Gendall J therefore approached afresh the assessment of the disproportionality test. He observed, however, that caution is appropriate where an appeal is against the exercise of a discretion, “as in this case”: at [35].
[65] As we have discussed above (refer [8] - [12] above), the appeal in this case was not against the exercise of the court’s discretion, but against the decision of the District Court Judge that the adverse consequences of a conviction for the appellant were not out of all proportion to the gravity of the offending; in other words that the threshold test in s 107 had not been met.
[66] However, Gendall J appropriately approached the appeal, applying ordinary appellate principles. He concluded (at [43]):
I have independently come to the same view as Judge Harrop that in undertaking the balancing exercise and accepting some adverse consequences to the appellant, such as is, they are not out of all proportion to the gravity of the offence under s 21(1)(b) of the Summary Offences Act 1981.
The Judge’s reasoning
[67] In reaching that conclusion, Gendall J referred to the three step approach in Turner, requiring consideration of the gravity of the offending, then the consequences of conviction, then finally whether those consequences are out of all proportion to the former. He cited from Roberts at 210 and from Turner at 241 (refer [19] and [17] above). He then turned to s 107 of the Sentencing Act and said that it has “inverted the language of Richardson J. It is expressed in the imperative”: at [30]. He said (at [30]):
Whilst the exercise of the discretion is to be based upon whether all the relevant circumstances, relating to the offender, as well as the public interest, result in the consequences of the conviction outweighing to a large extent (is out of all proportion to) the gravity of the offence, unless the Court is satisfied that the last (s 107) feature exists it cannot discharge without conviction.
[68] He continued (at [31]):
There will be infinite circumstances which may justify a Judge exercising the discretion to discharge without conviction. They are limitless. They may relate to the personal circumstances of an offender, his or her family, work considerations, past behaviour or actions, future travel or career aspirations, whether the offence is trivial or not; the type of the offence; the degree of gravity; and there will be others.
[69] He stated that there remained the statutory prohibition against granting a discharge unless the appellant can pass through the gateway of s 107. He did not differ from Judge Harrop that this was a “very stiff test”: at [32].
[70] Gendall J turned to consider the gravity of the offence under s 21 of the Summary Offences Act 1981. He said it involves a deliberate act of following, intending to frighten or intimidate, knowing that the conduct is likely to cause another person to be frightened. He noted it was not an ingredient of the offence that the victim of the behaviour is actually frightened or intimidated but said that in this case it was abundantly clear that the victim was seriously frightened. He said Judge Harrop’s findings that the actions were deliberate on the part of the appellant with the knowledge that he was frightening the victim, took the behaviour “outside a youthful prank”: at [37].
[71] He rejected submissions from counsel for the appellant that the Judge had regarded the defending of the charges as “something which adds to the gravity of the offence in reality”: at [38]. He said this was simply the absence of a mitigating factor, namely a guilty plea which can be treated in exercise of the sentencing function under s 106, as an expression of remorse and signifying insight and contrition: Delaney & Ors v Police. He considered the Judge had made this quite clear.
[72] He said the offence was not trivial nor technical; it was aimed at scaring the complainant by pursuing her. He concluded on the issue of the gravity of the offending, that it was reasonably serious (confirming the conclusion of Judge Harrop on this point): at [39] and [40].
[73] He then considered the consequences of conviction for the appellant. He said that nothing had been advanced by way of specific consequences other than those which usually might follow from the entry of conviction, which would establish or persuade the Court that the consequences were out of all proportion to the gravity of the offending for the appellant. He described potential difficulties for the appellant of “possibly” joining the Police and “possibly” arising in relation to travel as speculative, and as being “legitimate prejudice”, meaning normal consequences to be expected from the entry of a conviction: at [42].
[74] Having weighed all these factors, Gendall J reached the conclusion set out at [65] above. He said the appellant had “failed by a wide margin” to satisfy the Court that he should be discharged without conviction in respect of the s 21(1)(b) offence, and dismissed the appeal: at [45].
Submissions for appellant
[75] The appellant submitted that the Judge misdirected himself in the following respects:
(a)In reading the changed language of s 107 as altering the meaning of the test;
(b) In failing to read s 107 in conjunction with ss 10 and 11;
(c) In failing to consider the Act as a whole; and
(d)As a result of the above, failing to consider relevant aspects of the appellant’s case as part of the exercise of the discretion.
[76] The appellant criticised the Judge’s reliance on Roberts and submitted that both Judges erred in failing to have regard to the recent cases on s 107 and wrongly elevating the threshold test (emphasis added). Counsel submitted that where, as in the present case, the offender is young, otherwise well-intentioned and law-abiding and without anti-social tendencies, particular care is frequently taken by the Courts to prevent the result of a single night’s poor judgment unnecessarily blocking future prospects. Ms Gould emphasised that the appellant was both remorseful and desirous of making amends for his bad behaviour, that he had excellent references and had excelled at school particularly in cricket, that the offending was out of character and unlikely to recur, that he has continued to be employed and enjoys the support and commendation of his friends and family.
Submissions for the Crown
[77] Mr Allan submitted that Gendall J did not apply an incorrect test in relation to s 107 and that he considered all relevant factors.
[78] As to the test applied, counsel submitted that while describing s 107 as having been enacted to give effect to the “judicial pronouncement” in Turner but as having “inverted the language of Richardson J”, Gendall J did not use those observations as a platform to re-craft the test or restrict its scope. He correctly described the effect of s 107 as a “gateway” to the discretion to discharge without conviction: at [32]. He submitted that Gendall J was mindful that it is the test itself that is determinative, rather than endeavours to describe it.
[79] Counsel submitted that in the final result, Gendall J identified that the crux of the issue lay not in the gravity of the offending but in the “speculative” nature of the alleged consequences of a conviction. Because of the uncertainty attaching to the alleged consequences for the appellant, Gendall J concluded that the appellant “failed by a wide margin” to satisfy the Court that he should be discharged without conviction because the consequences of the conviction were not out of all proportion to the gravity of the offence. Counsel submitted that conclusion was reached by the orthodox application of the orthodox test, and should stand.
Discussion and conclusion
[80] In approaching the balancing exercise he was required to undertake in assessing whether the disproportionality test in s 107 was satisfied in the circumstances of this case, Gendall J noted that s 107 is expressed in the imperative and creates a “gateway” through which the appellant must pass. While he referred to the court “exercising a discretion”, adopting the dicta in Turner and Roberts, he approached the assessment on the basis that all relevant circumstances relating to the offender as well as the public interest, were relevant: at [30] - [32].
[81] He correctly considered the gravity of the offence under s 21 of the Summary Proceedings Act, and the nature of the offending in this case, concluding that it was “not trivial, nor technical”: at [39].
[82] He then considered the consequences for the appellant of a conviction, and appropriately weighed those consequences in the balance. For as Randerson J observed in Iosefa, the nature and seriousness of the consequences and the degree of likelihood of their occurring would be material to the court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence: at [35]. The higher the likelihood and the more serious the consequences, the more likely it is that the statutory (disproportionality) test can be satisfied.
[83] Finally, Gendall J concluded that the disproportionality test in s 107 was not satisfied in the circumstances of this case: at [43].
[84] We have no reason to criticise the manner in which the Judge undertook the required assessment, which was logical, reasoned, and took account of all relevant factors. We agree with the conclusion he reached.
[85] Accordingly, we dismiss the appeal.
Result
[86] The question in respect of which special leave to appeal is granted, as set out at [1], is answered:
The wording of s 107 clearly adopts the test applied in both Turner and Roberts and we do not believe s 107 was intended to materially alter the threshold. But in considering whether the threshold test in s 107 has been met and in the exercise of the discretion under s 106, Judges should focus on the requirements of the Sentencing Act 2002, rather than on cases under statutory provisions that have now been repealed.
[87] The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
332