R v Osuji HC Auckland CRI-2010-404-000353

[2011] NZHC 1857

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000353

CRI-2010-404-000354

THE QUEEN

Appellant

v

FERNANDO OSUJI

First Respondent

CRAIG ETHAN AUGUST

Second Respondent

Hearing:         11 April 2011

Counsel:         B M Finn for the Appellant

J W Mackey for the First Respondent
N C Wintour for the Second Respondent

Judgment:      15 September 2011

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 15 September 2011 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

R v OSUJI and AUGUST HC AK CRI-2010-404-000353 15 September 2011

[1]      The  Crown  appeals  by  way  of  case  stated  against  a  decision  of  the District Court  discharging  the  respondents,  Fernando  Osuji  and  Craig  August, without conviction.   Mr Osuji opposes the appeal and Mr August has advised the Court that he adopts a neutral stance to the appeal, which I understand to mean that he abides the decision of the Court.

[2]      The  case  stated  on  appeal  records  that  Messrs  Osuji  and  August  were separately and indictably charged that each had committed the following offences: burglary (s 231(1)(a) and s 66(2) of the Crimes Act 1961); and injuring with reckless disregard for the safety of others (s 189(2) and s 66(2) of the Crimes Act).  They each pleaded guilty to the offence.  The Judge’s sentencing notes refer to Mr August having committed a further offence of unlawfully taking a motor vehicle.   This offence is not mentioned in the case stated on appeal.  Accordingly, I do not propose to treat it as forming part of the appeal.

Facts

[3]      Messrs Osuji and August were 17 years old at the time of the offending. According to the police summary of facts, on a night in January 2009, a group of between 12 and 15 young persons, including Messrs Osuji and August, went to the house where the victim lived.  Once there, they began causing damage to the house and other property.

[4]      Mr Osuji and his younger brother forced their way into a bedroom occupied by the victim and his girlfriend. They punched and kicked the victim and forced him and his girlfriend into a closet.  Mr August entered the room during the altercation with a knife, which he swung over the victim while he was on the ground.   The victim was stabbed on the left side of his neck, although neither respondent was entirely clear as to how this occurred.   At some point, they also stomped on the victim.  Mr Osuji’s younger brother was dealt with in the Youth Court.

[5]      At the appeal hearing, Mr Osuji stated that he did not accept the police summary of facts in its entirety when he entered his guilty plea.   Mr Osuji then proceeded  to  outline  facts  that  diminished  the  seriousness  of  the  offending  as

described in the police summary of facts.  Mr Osuji asserts that he and the victim know  each  other,  as  both  are  recent  immigrants  to  New  Zealand  from  Brazil. Mr Osuji  contends  that  the  prelude  to  the  offending  was  the  victim  breaking  a window of Mr Osuji’s family home the previous day.   He says that later that day there were a series of text messages from the victim stating that if Mr Osuji wanted to fight, he should go to the victim’s home.  Mr Osuji contends that he accepted the victim’s challenge and went to the victim’s home with two other persons and that the other group of people, who he accepts were present, were unknown to him.   He contends that he did no more than punch the victim two or three times and to kick him once.  He also contends that he had no idea that Mr August had a knife with him, and that it was the other group of people who carried out the extensive damage to the victim’s home.

[6]      Mr  Osuji’s  counsel  submits  that  he  brought  Mr  Osuji’s  account  of  the offending to the attention of the police and that they had sufficient time to confirm this.  Whilst this may be so, there is no record of the police agreeing to amend the police summary of facts to reflect Mr Osuji’s account of events.   In such circumstances, it was for Mr Osuji to seek a disputed facts hearing if he was to maintain  his  stance  on  his  involvement  in  the  offending.    Section  24  of  the Sentencing Act 2002 sets out the process for when the offender accepts he is guilty of the offence with which he has been charged but does not accept all the facts supporting the charge as outlined in the police summary of facts.  However, there is nothing to show that Mr Osuji followed this process.

[7]      A sentencing judge who is confronted with an offender who does not accept the police summary in regard to the seriousness of the offending conduct should require  the  offender  either  to  elect  a  disputed  facts  hearing,  or  abandoning  the dispute.  When this does not occur, an offender should seek a disputed facts hearing, or abandon the dispute.   Here, as Mr Osuji neither resolved the dispute with the police, nor sought a disputed facts hearing, he cannot expect to have his version of the offending form the basis of how the court sees the offending.

[8]      Furthermore, Mr Osuji appears to have overlooked the nature of the charges to which he has pleaded guilty.  He was charged as a principal and as a party.  As a

party charged under s 66(2) of the Crimes Act, all the police had to establish was that Mr Osuji formed part of a group of persons who had formed a common intention to carry  out  an  unlawful  purpose  and  to  assist  each  other  therein.     In  such circumstances, each member of the group is guilty as a party to every offence/s carried out by other members if the commission of such offences was known to be a probable consequence of the common purpose.  The pleas of guilty to burglary and injuring with reckless disregard for the safety of others, in this case, mean that Mr Osuji accepts that all the elements of s 66(2) are present and so he is culpable of the offending by other members of the group as well as offences committed by him.

[9]      If Mr Osuji wanted to distance himself from Mr August’s use of a knife on the victim on the ground by claiming that he did not know Mr August had a knife with him or intended to use it on the victim, then Mr Osuji should have pleaded not guilty to the injuring charge.  Mr Osuji argues that his plea of guilty was appropriate because he entered the victim’s home intending to fight him (which fits with the burglary charge) and he accepted he had assaulted the victim (which fits with the injuring with reckless disregard charge).   However, it is clear from the police summary that the burglary charge is directed at the unlawful entry of the victim’s home and the injuring with reckless disregard charge is directed at both the use of a knife to stab the victim in the neck as well as the punching and kicking of the victim. It is not open to Mr Osuji to fit the charges to his version of events by arguing that the injuring with reckless disregard fitted his assault of the victim.  The laying of the charge under s 66(2) and Mr Osuji’s guilty plea meant that he must be taken to have foreseen that all that occurred was a probable consequence of the common unlawful purpose that he had formed with others.

[10]     The charges were laid indictably.  If Mr Osuji considered that the charge of injuring with reckless disregard covered disparate offending, he should have raised with the Crown the need for it to lay separate charges to cover the various offences in accordance with the principles established in Mason v R [2010] NZSC 129, [2011]

1 NZLR 296 at [9] and R v Qiu [2008] [2007] NZSC 51, [2008] 1 NZLR 1 at [8].

[11]     I consider that at the appellate stage, it is no longer open to Mr Osuji to contest the version of events set out in the police summary of facts.  He has failed to

take advantage of the opportunity given in s 24 of the Sentencing Act to dispute those facts and to complain about the charge of injuring with reckless disregard being used to cover more than one form of physical assault on the victim. Accordingly, he must now be viewed as someone who has not contested the facts of the offending.

[12]     However, as matters have turned out, the omission to follow the procedure provided in s 24 does not affect the view I have reached on the outcome of this appeal.  For reasons set out below, I consider that the sentencing Judge erred in law by discharging Messrs Osuji and August without conviction.  I propose to allow the appeal to the extent that the discharge without conviction will be set aside and replaced with a discharge with conviction.   Whilst I consider that, in principle, offending of this nature, even if of the lesser seriousness contended for by Mr Osuji, warrants a conviction and sentence, the process followed in the District Court makes the imposition of any sentence now contrary to the interests of justice.

[13]     With   an   informant’s   appeal   against   sentence   under   s   115A  of   the Summary Proceedings  Act  1957,  even  if  the  sentence  imposed  is  found  to  be manifestly inadequate or wrong in principle, an appellate court may find there is good reason not to interfere with the sentence if it is satisfied that to do otherwise would cause injustice to the offender.  An appellate court is more likely to take this approach where a community-based sentence has been imposed, where the offender has complied with the conditions that were ordered: see: R v Wihapi [1976] 1 NZLR

422 (CA) and R v Donaldson (1997) 14 CRNZ 537 (CA).   I consider that this approach  helpfully informs the determination of this appeal under s 107 of the Summary Proceedings Act.   This is because here, the District Court delayed the formal sentencing, which was when Messrs Osuji and August were each discharged without conviction, until they had voluntarily completed 200 hours of community work and paid $1,500 in emotional reparation to the victim.   They had also been subjected to a bail curfew from 7.00 pm to 7.00 am, as well as prohibitions on consuming drugs and alcohol.   The curfew and the restriction on consumption of alcohol, once they reached the age of 18 years, would have interfered with their liberty.  Thus, Messrs Osuji and August have undergone what in effect were de facto

community-based sentences that had a substantial impact on their liberty.  In these circumstances, I consider it would be unjust to impose further sentences.

What occurred in the District Court

[14]     Messrs Osuji and August were due to be sentenced for the offences in mid

2009.  The sentencing was adjourned a number of times because it was not ready to proceed.     Then  on   3   September  2009,  they  appeared   for  sentence  before Tremewan DCJ.   The Judge considered the sentence to be imposed might well be less than two years’ imprisonment and, accordingly, she ordered a home detention report.   Sentencing was  adjourned so  that a home detention appendix could be prepared.    Messrs  Osuji  and August  were  remanded  to  appear  for  sentence  on

19 November  2009.    On  that  date,  the  home  detention  appendix  had  not  been prepared and so their sentencing was further adjourned to 28 January 2010.

[15]     On that day they appeared for sentence before Recordon DCJ.   The Judge indicated that the appropriate starting point for the offending was one of two and a half years’ imprisonment.  He then indicated that a sentence of community detention, community work, supervision and reparation could be available.   In preference to such  a  sentence,  the  Judge  adjourned  the  sentencing,  whilst  at  the  same  time directing Messrs Osuji and August each to complete 200 hours’ community work and to pay $1,500 in emotional harm reparation.   The Judge also continued their bail conditions, including imposing a curfew from 7.00 pm to 7.00 am.  He indicated that if Messrs Osuji and August completed these impositions to his satisfaction, he would consider discharging them without conviction.

[16]     The  Crown  requested  an  opportunity  to  file  written  submissions,  if  a discharge without conviction was to be considered.  The matter was adjourned and set  down  for  judicial  monitoring  on  29  April  2010  to  assess  the  progress  of Messrs Osuji and August.  They appeared on 29 April 2010.  By then, Mr Osuji had completed 75 hours’ community work; Mr August was yet to commence community work.   Messrs Osuji and August had paid $750 and $300, respectively, towards emotional harm reparation.  The sentencing was further adjourned and set down for mention on 3 June 2010 to assess progress.  On that day, the sentencing was again

adjourned to 2 September 2010.   Throughout this time, the Crown opposed discharging Messrs Osuji and August without conviction.

[17]     When Messrs Osuji and August appeared on 2 September 2010, they had each completed 200 hours’ community work; Mr Osuji had paid $1,500 in emotional reparation, and Mr August was paying his outstanding reparation to the victim at the rate  of  $20  per  week.     Against  this  background,  Recordon  DCJ  discharged Messrs Osuji and August without conviction.   At the same time, he made formal orders of reparation of $1,500 against each of them.

[18]     The Judge accepted that the offending was very serious and that it was rare for prison not to be the end result, though he noted the Crown’s concession that a non-custodial sentence was always a possibility, given the offenders’ ages.   The Crown continued to maintain that the offending warranted the entry of convictions.

[19]     The  Judge  considered  that  any  decision  regarding  a  discharge  without conviction was a balancing act, the assessment of which began with the gravity of the  offending,  the  type  of  offending  and  the  circumstances  of  the  particular offending.   With respect to the injuring charge, the Judge accepted that the knife swinging by Mr August was not directed at the victim but that there was certainly a possibility that injury would result.   The Judge concluded his assessment by describing the offending at [25] of the sentencing notes as “extremely serious”. Nonetheless, the Judge considered that the circumstances of the case were such that a discharge was justified, including:

(a)      The personal future of the offenders.   Mr Osuji has ambitions to become a doctor and Mr August has a promising sporting career.  The Judge concluded the career prospects of each would suffer if a conviction was entered against each of them;

(b)      Early guilty pleas;

(c)       Their   youth,   as  both   fell  just  outside  the  jurisdiction  of  the

Youth Court;

(d)Both  of  the  offenders  had  worked  hard  during  their  community service and paid (or for Mr August, was in the process of paying) reparation;

(e)      Both had good references testifying that the offending was entirely out of character;

(f)      Mention was made in the judgment of good family support, especially for Mr Osuji;

(g)      Willingness to undergo restorative justice (which was not convened,

due to the victim’s refusal); and

(h)Lack of previous convictions for Mr Osuji, and a single previous conviction for Mr August.

[20]   The Judge concluded that convictions would have direct and indirect consequences out of proportion to the gravity of the offending.  He considered that both offenders were people worth persevering with and saving from a conviction, if possible.

Arguments for the Crown

[21]     The Crown appeals on the grounds that the District Court Judge has made an error of law.  The Crown contends that the mitigating factors may have reduced the appropriate  sentence  from  imprisonment  to  community-based  sentences  but  that there was nothing disproportionate about the entry of convictions.

[22]     The Crown argues that little consideration was given to the third charge against Mr August alone concerning the unlawful taking of a motor vehicle.  Whilst accepting that the charge was minor, it submits that the charge was not inconsequential  and  it  occurred  while  Mr  August  was  on  bail  for  the  earlier offending.  The Crown also submits that Mr August had a previous conviction for fighting in a public place on 1 January 2009.   It appeared that he committed the burglary and reckless injuring offences while he was on bail for the earlier offending.

[23]     One of the decisive factors relied upon by the Judge in his decision was the negative effect on the career aspirations of Messrs Osuji and August.  The Crown argues that these aspirations were vague and that it was unclear that a conviction would jeopardise them.   Thus, the Crown contends that there is no evidence to support the Judge’s assessment that the consequences of a conviction would be out of all proportion to the gravity of the offending.  Furthermore, Mr August already had a previous conviction involving violence.

Arguments for Mr Osuji

[24] Mr Osuji argues that a s 106 discharge was appropriate in the circumstances, given the unusual factual background of the case, summarised at [5]. Mr Osuji argues therefore that although serious, on the basis of this factual background and the contribution of the victim, the offending can be seen as much less serious. Furthermore, Mr Osuji submits that he is intent upon a career in medicine and that his vague earlier statement that he may alternatively pursue “something in that field” merely reflected the fact that it is difficult to gain admission as a medical student. It is submitted a conviction would entirely preclude this possibility, along with a variety of other professional careers. It is submitted that following a prolonged sentencing process, Mr Osuji has complied with all of the requirements of Recordon DCJ. Moreover, the Crown failed to challenge the Judge’s approach throughout this period.

Arguments for Mr August

[25]     Mr August has referred the Court to the settled principles in relation to a discharge under s 106.   He concludes by noting that he did not seek a discharge without conviction as was recorded in [8] of the sentencing notes, but he did agree to participate in the programme on the terms that the Judge required, including the continuation of the curfew, voluntary community work, participation in restorative justice, and reparation.   He submits that at the sentence on 2 September 2010, he sought a conviction and discharge (s 108 of the Sentencing Act) for the following reasons:

(a)       He had two previous convictions, one of which the offending occurred whilst on bail for the present offences;

(b)He carried a knife on to the property and there were injuries sustained by the victim as a result (minor cuts);

(c)      The  co-offenders  repeatedly  kicked  and  punched  the  victim  after

Mr August had left the property; (d)     The age of Mr August;

(e)      Self-referral to a drug and alcohol programme; and

(f)      Completion of voluntary community work.

[26]     He now submits, however, that principles of parity may apply in relation to the outcome of the appeal against Mr Osuji.  He submits that if the Court is satisfied that the Judge erred in exercising his discretion in granting a discharge without conviction, then an appropriate sentence in all the circumstances may be that of a community-based sentence or, given the compliance with the Judge’s programme, a conviction and discharge pursuant to s 108 of the Sentencing Act.

Appellate principles

[27]     The appeal is brought under s 107 of the Summary Proceedings Act.  This section deals with appeals and questions of law.  The jurisdiction is narrowly defined in s 107(1):

If dissatisfied with the determination as being erroneous in point of law, appeal to High Court by way of case stated for the opinion of that court on a question of law only.

[28]   In principle, a decision can be erroneous in point of law due to a misunderstanding  of  the  statutory language;  or  secondly,  having  understood  the statutory language, the decision-maker makes a perverse finding without supporting evidence, or which is inconsistent with the evidence and contradictory of it: see

Edwards v Bairstow [1956] AC 14 at 31. In the latter situation, the decision-maker is said “to have come to a conclusion which on the evidence no reasonable person could arrive at”: see Edwards v Bairstow at 35. Similarly, in Auckland CC v Wotherspoon [1990] 1 NZLR 76 at 83, it was stated that an appeal based on the assertion that there was no evidence to support a finding of fact raises a question of law.

[29]     At [24] of the case stated on appeal, the question of law is defined as whether the Judge was “correct to decide the direct and indirect consequences of the convictions were out of all proportion to the gravity of the offending”.  Answering this  question  entails  the  application  of  the  principles  expressed  in  Edwards  v Bairstow to the steps the sentencing Judge took, including the balancing exercise under s 107 of the Sentencing Act.  Only if the sentencing Judge has misunderstood the relevant provisions of the Sentencing Act, or, having properly understood them, has reached an unreasonable conclusion, as identified in Edwards v Bairstow, will his or her decision be susceptible to appeal under s 107 of the Summary Proceedings Act.

Discussion

[30]     Section 107 of the Sentencing Act sets out guidance for the exercise of the power in s 106 to discharge without conviction.  Section 107 provides as follows:

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.

[31]     The leading authority on ss 106 and 107 of the Sentencing Act is R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222. At [10], the Court of Appeal held that a sentencing Judge must first consider whether the s 107 test is met, before considering the discretion conferred by s 106. At [11], the Court said that the decision under s 107 is a matter of fact requiring judicial assessment, and not a matter of exercising a judicial discretion. The assessment was said to require a three-step process:

(i)Identifying the gravity of the offending by reference to the facts of the individual case;

(ii)Identifying   the   direct   and   indirect   consequences   of   a conviction; and

(iii)Determining whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[32]     Hughes makes it clear that it is only when the Court is satisfied that the disproportionality test is met that the discretionary power under s 106 should be considered: see [22].

[33]     There is no onus on the offenders, here Messrs Osuji and August, to establish that the disproportionality test has been met: see Hughes at [49]. Nor do they carry any onus to prove the factors relied on to support a discharge without conviction: see Hughes at [53]. The requirement under s 107 is for the sentencing Judge to be satisfied, taking into account all relevant material before him or her, that the disproportionality test has been met: see Hughes at [49]-[53]. I understand this to mean that the sentencing Judge must make his or her decision based on all the relevant material.

[34]     In accordance with Hughes, the Judge followed a three-step process.   I am satisfied that he properly understood ss 106 and 107 of the Sentencing Act.  The next question is to consider whether the Judge’s findings are perverse in the sense recognised in Edwards v Barstow.  This entails examining each step of the process he followed.

Gravity of the offending

[35]     The first  step  is  for the sentencing Judge to  consider the  gravity of  the offending.  This expression includes both the facts of the offending, as well as wider matters that are relevant in assessing the offender’s overall culpability: see Delaney v

Police  HC  Wellington  CRI  2005-485-22,  22 April  2005  and  Lee  v  Police  HC Auckland CRI 2005-404-28, 27 July 2005.   Such factors may include a prompt guilty plea, expression of remorse, attendance at a restorative justice conference, reparation and community work (Delaney v Police); and/or promptly acknowledging responsibility to  the victim  and  confessing to  the offending (Lee  v Police;  R  v Hughes at [38]-[41]).

[36]     In this case, in preliminary comments, the sentencing Judge noted it would be rare to avoid prison in cases involving home invasion and serious assault (at [4]) but that as Messrs Osuji and August were facing a potential prison sentence of approximately two years, a community-based sentence was possible (at [10]).  The Judge referenced the s 107 test, stating that he had to assess the gravity and type of offending, then to consider the individual facts (at [11]).  At [14]-[19], he noted the following aggravating factors: high level of violence involving a weapon, revenge attack, multiple people involved, damage to property, home invasion at night, terrorising of the victims and significant victim impact.  Though not at the upper end of offending of this type, the offending was very serious, which was recognised by the Judge. This assessment is supported by the evidence.

[37]     The Judge did not, as is envisaged in Delaney, expressly take into account wider matters relevant to assessing culpability.  If he had, the offenders’ early guilty pleas, willingness to participate in restorative justice, payment of reparation and performance of 200 hours of community work would have reduced the gravity of this offending.

Consequences of a conviction

[38]     The second step is for the sentencing Judge to consider the direct and indirect consequences of a conviction; the offender’s future employment or career prospects are a relevant consideration.

[39]     For example, in Waight v Police HC Auckland CRI-2006-404-465, 24 May

2007,  it  was  held  that  a  lengthy  stand  down  period  on  top  of  the  loss  of  the

offender’s existing position was a disproportionate consequence to a conviction for

driving with an excess breath alcohol.

[40]     Another common scenario where a discharge may be appropriate is where a conviction is an absolute bar to an offender gaining entry to a profession or occupation.   However, the courts have been reluctant to grant a discharge on this ground where the consequences are unclear.   In addition, where a statutory body screens applicants for admission to an occupation, the risk to a person’s career is unlikely to justify a discharge, as there is a public interest in the statutory body knowing about the conviction and exercising its discretion accordingly: see Roberts v Police (1989) 5 CRNZ 34; Dillon v Police (1993) 10 CRNZ 504; DSW v Patea (1994) 12 CRNZ 212; R v Foox [2000] 1 NZLR 641 at 649-650. In Vermeulen v Police  HC Wellington  CRI 2010-485-141,  11  March  2011,  a  discharge  without conviction for a charge of theft was denied for a law student who was concerned that a conviction might prevent her admission as a barrister and solicitor.  In coming to that conclusion, the Judge referenced the discretion available to the New Zealand Law Society.

[41]     Regarding the consequences of a conviction, at [19]-[24], the Judge noted that Mr Osuji wanted to study to become a doctor, and that Mr August has a sporting career.  Mr August had references from a Special Olympics’ coach and others in the Institute of Sports, and Mr Osuji’s academic abilities were set out in detail.   The Judge described both as being very young and having support from their parents. The Judge appears to have overlooked the fact that Mr August was not seeking a discharge without conviction, but rather a conviction and discharge under s 108.  The evidentiary basis for the direct and indirect consequences of a conviction on the offenders’ future careers was as follows.

[42]     For Mr Osuji, there were letters confirming that Mr Osuji had applied and been  accepted  for study for the Bachelor  of Applied  Science (Human  Biology) programme at Auckland Unitec.   There is also  a letter from Michael Williams, Principal at Pakuranga College.  In this letter, Mr Williams described Mr Osuji as a “focused learner who has worked reasonably well throughout the year to achieve his potential in his subjects”.  He was said to have done well in chemistry and physics at

a tertiary level.  He was described as likeable, polite and friendly.  The pre-sentence report recorded that Mr Osuji’s final year at Pakuranga College had been spent studying.  There was also a letter from a Mr Payne from the Sowers Trust, where Mr Osuji completed his community service hours.  Mr Payne described Mr Osuji as a good and trusted worker.

[43]     For Mr August, there was a letter from Dave Beattie (Special Olympics New Zealand).  Mr August had volunteered for six weeks for the Special Olympics. He was involved in coaching special needs students.  Mr Beattie was very impressed with the way Mr August engaged with students, and his organisational skills and commitment.   There seem to be no further documents that referred specifically to Mr August’s chosen career paths, whether they were likely to succeed and/or the likely impact of a conviction on these paths.   This is consistent with the fact that Mr August’s counsel did not seek a discharge without conviction.

[44]     Neither offender was advanced in his progress towards his prospective career. Because Mr August did not seek a discharge without conviction, I propose to focus on Mr Osuji.

[45]     Mr Osuji is not enrolled in a medical course at a New Zealand university such   as   is   available   at   the   Otago   School   of   Medical   Sciences   or   the Auckland University Faculty of Medical and Health Sciences.  His enrolment in and successful completion of the Unitec degree may enable him to be enrolled in a university’s medical teaching programme.  However, this is some way in the future. The evidence suggests that Mr Osuji’s plan to become a doctor is no more than a vague aspiration.

[46]     Further, there is no evidence to suggest that the universities that provide medical teaching would not enrol someone with a conviction.   Indeed, there is no evidence  to  show  that  those  universities  ask  aspiring  entrants  if  they  have convictions.  If Mr Osuji successfully enrols in and completes a medical degree, the Health Practitioners Competence Assurance Act 2003, s 16, provides a discretionary power similar to that found in the Lawyers and Conveyancers Act.   Section 16 provides:

16       Fitness for registration

No applicant for registration may be registered as a health practitioner of a health profession if—

…

(c)       he  or  she  has  been  convicted  by  any  court  in  New  Zealand  or elsewhere of any offence punishable by imprisonment for a term of 3 months or longer, and he or she does not satisfy the responsible authority that, having regard to all the circumstances, including the time  that  has  elapsed  since  the  conviction,  the  offence  does  not reflect adversely on his or her fitness to practise as a health practitioner of that profession …

This suggests that anyone who successfully completes his or her tertiary education in a health profession, including medicine, may be permitted to practise as a health professional if the authority responsible for registration exercises its discretion in the applicant’s favour.  In addition, it may be important, for public policy reasons, that the authority is able to consider the application with knowledge of the offending (Vermeulen at [29]).

[47]     Thus, there was no reliable evidence before the sentencing Judge to show him that a conviction for the offending would cause Mr Osuji to be excluded from a career in any of the health professions.  Furthermore, the idea that Mr Osuji has a potential career available to him in any of the health professions is no more than an aspiration  on  his  part.    This  is  not  a  case  where  someone  who  has  studied successfully for many years and who is about to complete a medical degree faces a risk of refusal to gain entry to the medical profession if a conviction is entered against him.

The balancing assessment

[48]     The third and final step under s 107 is the balancing assessment of whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  Here, at [25], the Judge considered that the offending was extremely serious and sat at the mid range of this sort of offending.  Nonetheless, the Judge decided at [25]:

On the balance as far as you are both concerned having regard to all the factors  including  what  has  happened  over  these  last  19  months  and especially your ages at the time, the stupidity of what happened, I am going to discharge with no conviction.

[49]     He concluded at [27] that the careers of Messrs Osuji and August would suffer considerably if there was a conviction and that they had demonstrated they were “people worth persevering with and saving from a conviction”.

[50]     The Judge’s reference to what had happened over the last 19 months suggests to me that here, as part of the balancing exercise, he was taking into account factors which in Delaney and Hughes were recognised as reducing the culpability of an offender.  Seen in this way, his assessment of the consequences of a conviction as against the gravity of the offending needs to be understood in terms of the diminishing  impact  the  offenders’ conduct  over  the  last  19  months  had  on  the otherwise serious nature of the offending.

[51]     Even so, I consider that in carrying out the balancing exercise required by s 107,  the  Judge  failed  to  recognise  a  lack  of  evidence  regarding  a  specific, disproportionately detrimental  impact  on  Mr Osuji’s  career aspirations,  with  the result  that  the  Judge  made  a  perverse  unreasonable  decision  unsupported  by evidence.    No  additional  supporting  evidence  has  become  available  since  the decision was made that might have provided a reason for not interfering with the decision.   Accordingly, I consider that the balancing exercise involved reveals an error of law.

[52]     As the offending was serious, even considering the wider Delaney factors, exceptionally significant counter-balancing factors were required to make the consequences of a conviction out of proportion to the gravity of the offending.  Here, though the consequences of a conviction are grave, they are no more serious than they would be for any young offender.

Conclusion

[53]     In the case of Mr August, he did not seek a discharge without conviction.  He did not put forward material to support a discharge without conviction.  Whilst in

circumstances where there are co-offenders issues of parity become relevant, here there were good reasons for treating Mr August differently from Mr Osuji.  First, the police summary of facts identified Mr August as being the person responsible for stabbing the victim.  Mr August can therefore be seen as a principal for the charge of injuring with reckless disregard, whereas Mr Osuji’s role is that of a party under s 66(2).  The present offending occurred while Mr August was on bail for an earlier offence that led to a conviction.   Furthermore, whilst on bail for this offending Mr August re-offended in March 2009, when he unlawfully took a motor vehicle. The mix of the gravity of the present offending and the additional offending weighs against a discharge under s 106.  When the fact Mr August did not seek a discharge without conviction is added to this mix, the outcome is perverse and unreasonable. The evidence did not support a discharge without conviction.  Parity issues do not affect this reasoning because Mr August’s offending can be distinguished from that of Mr Osuji.  For these reasons, I am satisfied that the discharge without conviction regarding Mr August should be set aside and replaced with the entry of a conviction under s 108 of the Sentencing Act.  I consider that since Mr August has fulfilled the requirements imposed by the Judge that, in these circumstances, it would be unjust to impose a further sentence on him.

[54]     Regarding Mr Osuji, it is clear that the decisive factor weighing in favour of a discharge was the impact of a conviction on Mr Osuji’s future career.   However, there was no evidence to support the Judge’s conclusion that Mr Osuji would “suffer hugely”.  Clearly the stigma of a conviction is detrimental to future career plans.  But there was no evidential foundation for holding that Mr Osuji would suffer additional serious consequences out of proportion to the gravity of the offending.  This is so even when his role in the reckless injuring offence is seen as being more that of a party to the stabbing of the victim than as a principal.  It needs to be remembered that he has admitted punching more than once and administering one kick to the victim.

[55]     Further, though this was not referred to at the sentencing hearing, it appears that the Medical Council is able to exercise discretion in accepting applications for registration.  Following similar cases involving the New Zealand Law Society (for

example, Vermeulen), this is a factor that would weigh against the exercise of the discretion for Mr Osuji.

[56]     When it comes, therefore, to any tertiary institution considering whether or not to  enrol  Mr  Osuji  in  a degree  that  would  permit  him  to  work  as  a health professional, I consider that any such institution is likely to be guided by the fitness for registration provisions contained in s 16 of the Health Practitioners Competence Assurance Act 2003.   Certainly there is nothing to suggest otherwise.    In circumstances where the entrance requirements for acceptance to a medical course or other health professional course at a university in this country are not in evidence, it should not be assumed that disclosure of convictions is required.

[57]     Whilst  Mr  Osuji  carries  no  burden  of  proving  the  consequences  of  a conviction are out of all proportion to the gravity of the offending, I consider that some evidential foundation to support the concerns he raises must be established. Without that, the sentencing Judge has insufficient before him or her to be “satisfied” there will be a disproportionate outcome.

[58]     Moreover, there is nothing in the evidence to suggest that Mr Osuji is such a promising student that he would be likely to be accepted as an entrant to a medical course at a New Zealand university or to any of the other courses that result in eligibility to become a member of one of the recognised health professions.  Such places are hotly contested.

[59]     On the strength of the information available to the Judge, I consider that there was no evidential foundation to support the view that the entry of a conviction for this offending would be out of all proportion to the gravity of the offending.   I consider that, here, the vague stated aspirations of an offender have been given such excessive  weight  that  they  have  led  to  a  perverse  and  unreasonable  outcome. Further,  I consider  that  if  such  aspirations  are  to  be  given  the  importance  that occurred here, it is difficult to see why other young persons with similar career aspirations would not be able to lay claim to like treatment should they offend. When such circumstances are compared to those in Vermeulen and Patea, it is hard to reconcile the refusal to discharge without conviction in those cases with what has

occurred here.   It is difficult to see why an offender’s career aspirations, without more in that regard, should be permitted to dictate the outcome here of the s 107 balancing exercise.

[60]     I have considered two decisions of this Court where on an offender’s appeal against a refusal of the District Court Judge to discharge without conviction, this Court has allowed the appeal and discharged the offender under s 106.  After careful consideration of those decisions, I have considered that they are distinguishable.

[61]     In MacGregor v Police HC Dunedin CRI-2010-412-45, 9 February 2011, French J discharged without conviction an architectural draftsman who was in his final year of studying at a polytechnic. The offender was charged with burglary. He and a co-offender, while intoxicated, had entered a house. The co-offender had taken something from the property but abandoned it when they were discovered. French J considered the offending was more than a student prank and that if the offenders had not been disturbed, property would have been taken. The factors that ultimately persuaded French J to allow the appeal were that in the profession of architectural draftsman, the offender would have to enter buildings. Hence, a conviction for burglary would have a severe impact on his ability to gain employment: see [23]- [25] and [38]. The Judge had evidence that such jobs were scarce. In addition, the officer in charge had been in favour of diversion, but police policy was against diversion for offences with maximum penalties of more than five years. French J acknowledged the influence the officer in charge’s attitude had in her decision: see [36].

[62]     In Mr Osuji’s case, the police do not support the approach taken in the District Court.   Also, the direct connection that French J recognised between the offender’s tertiary studies and his job prospects is not present here.  The relevance of the conviction in MacGregor is acknowledged by French J at [38].

[63]     In C v Police HC Auckland CRI 2009-404-23, 2 June 2009, Keane J allowed an appeal and discharged C without conviction in circumstances where C pleaded guilty to the offence of reckless injuring.  The injuring was less serious than is the case here.   C was employed as a health worker caring for intellectually disabled

persons. A conviction of reckless injuring would have placed his continued employment at risk: see [12]. Once again, the entry of a conviction and the impact it would have on the offender’s employment was clear and real. This is not the case for Mr Osuji, for the reasons I have already outlined.

[64]     It follows that I consider there is no basis for viewing the balancing exercise carried out in Mr Osuji’s case as being something analogous to MacGregor v Police or C v Police.

[65]     However, I also consider that given Mr Osuji’s compliance with the Judge’s directions and pre-sentence programme, it would be wrong to impose anything other than the entry of a conviction.  I propose, therefore, to set aside the discharge without conviction under s 106 and to substitute a discharge with conviction under s 108.

Result

[66]     The Crown’s appeal by way of case stated is allowed.

[67]     The discharge without conviction of Messrs Osuji and August is set aside. They are convicted and discharged under s 108 of the charges to which they each pleaded guilty.

Duffy J

Counsel:      J   W   Mackey   P   O   Box   15522   New   Lynn   Waitakere   0640   for   the

First Respondent
N  C  Wintour  P  O  Box  2978  Shortland  Street  Auckland  1140  for  the

Second Respondent

Solicitors:    Meredith   Connell   P   O   Box   2213   (DX   CP24063)   Shortland   Street

Auckland 1140 for the Appellant