Reid v The Queen

[2004] NZCA 320

IN THE COURT OF APPEAL OF NEW ZEALAND

CA322/04

THE QUEEN

v

SEAN EDWARD REID

Hearing:24 November 2004

Court:Chambers, Baragwanath and Goddard JJ

Counsel:P F Gorringe for Appellant

J A Farish for Crown

Judgment:16 December 2004 

JUDGMENT OF THE COURT

Appeal against conviction and sentence is dismissed.

REASONS

(Given by Goddard J)

Introduction

[1]       The appellant was convicted by a jury on two charges: wilful ill treatment of a child in a manner likely to cause him unnecessary suffering; and assaulting a child under the age of 14 years.  The first charge concerned a boy aged five years.  The particulars were that the appellant rubbed the child’s face in dog faeces.  The second charge concerned a girl aged three years.  It alleged that the appellant had pulled that child by her hair.  The appellant was acquitted on further alternative charges of wilfully ill-treating the boy or injuring him with reckless disregard for his safety.  The particulars of that alleged offence were that he had pushed the boy’s face into a toilet bowl, causing a tooth to be broken in the process.  Both children were the appellant’s stepchildren at the time.

[2]       The appellant now appeals against his conviction on both charges and against a sentence of nine months supervision.  The single ground of appeal against conviction is that the verdicts of the jury should be set aside as unreasonable or not supported by the evidence.  Alternatively, by way of appeal against sentence, the appellant seeks a discharge under s 106 of the Sentencing Act 2002 (“the Act”), on the ground that the trial Judge erred in exercising his discretion not to discharge him without conviction, and in particular erred by categorising the offending as “child abuse”.

Background

[3]       At the time of the incidents in question the appellant was living in Raglan with his wife and her two children.  He and his wife had met over an internet chat programme in 2001 when she was living in France.  In early 2002 she visited New Zealand and met with the appellant.  Their relationship developed and she returned in August with her children and commenced living with the appellant.  On
8 February 2003 they married and purchased a matrimonial home.  On 7 March 2003 the incident that became the subject of the first charge occurred.  That incident was witnessed by the appellant’s 12 year old daughter who was visiting at the time, and by the appellant’s wife, the mother of the child.  The appellant’s defence at trial was that the incident never occurred.

[4]       The relationship between the appellant and his wife began to deteriorate after this incident.  However, in early June they consulted a real estate agent about the possible sale of their home and the purchase of a small rural property.  During a visit to the real estate agent’s office in Raglan, the step-children got into the window display area and starting playing there.  The appellant asked the children to leave the area but the little girl did not.  The appellant is said to have then taken hold of the child by her hair and directed her out of the area.  That incident was the subject of the second charge of which he was convicted (count 4 in the indictment).  It was common ground that an incident of the sort had occurred but the defence advanced at trial was that the appellant had inadvertently got the child by her hair, rather than by her shoulder or collar, and had eased her slowly out of the window area.  On that basis it was contended that the appellant had not used unreasonable force in the course of carrying out parental discipline of the child (s 59 of the Crimes Act 1961).

Conviction appeal: count one

[5]       The first Crown witness to give evidence in relation to this incident was the child complainant, by then aged seven years.  His evidence was given by way of closed circuit video link.  Some relevant extracts from his evidence in chief are as follows:

A.He put me the face in the pooh of the dog.

Q.Can you tell me that again? What did he do?

A.He put the pooh in my face, all the pooh from the dog.

…

Q.Can you remember how he put your face in the dog pooh?

A.Yep.

Q.How did he do that?

A.Um, he pulled me down and put all over my face.

Q.So where did the dog pooh go?

A.All around my face and my mouth.

…

Q.Okay.  Well, you said that you got dog pooh all around your face. Okay?

A.Yeah.

Q.How did you clean that off?

A.In the shower.

Q.Okay.  Who helped you clean it off?

A.My Mum.

Q.How did you feel when you had to get all that cleaned off your face?

A.Yuck.

[6]       Under cross-examination the boy was challenged as to whether he could accurately describe where this incident had occurred, whether it was accidental, whether he had discussed the incident with his mother in Spanish before coming to Court to give evidence, and whether his complaint was fabricated.  The child withstood these challenges however and the jury were clearly not left in any reasonable doubt that the incident had occurred as he described it. 

[7]       His evidence was supported by two other witnesses.  The first was the appellant’s 12 year old daughter, who was playing nearby on a trampoline when the incident occurred.  In a pre-recorded videotaped interview, played to the jury during her evidence in chief, she described how her father had been standing next to the trampoline, looking at something on the grass, and how he had then grabbed the little boy by the back of his neck and pushed his head down “in the pooh”.  She said the boy’s mother had come out of the house when she saw the appellant “putting his head in the dog pooh” and told him to stop.  She said that the little boy then “just went off, off crying”.  She demonstrated how her father had pushed the boy’s head down to the lawn.  She said the children were just happy and were playing and her father was just behind the little boy and “then it happened”.  She did not actually see or know if faeces went onto the boy’s head and acknowledged that she had not seen any dog faeces on his head afterwards.

[8]       Under cross-examination the daughter remained firm that her father had deliberately pushed the boy’s head down to the ground and refuted any suggestion that the child had accidentally fallen into the dog faeces.  The following passage is illustrative:

Q.Now, when you say that Dad took a hold of [your brother], the back of [his] neck, did he bend down to do that?

A.Yes.

Q.As far as you can remember though, nothing was being said by anyone?

A.No.

Q.Now, is it possible … that what happened was that [your brother] was standing there and he fell over and fell with his head, the top of his head into this dog pooh?

A.He didn’t fall.

Q.He didn’t fall?  You saw no sign of the dog pooh on his head afterwards, did you?

A.No.

Q.From where you were standing how could you be sure that his head did touch the dog pooh?

A.Well, [he] was standing right in front of it.

[9]       The third witness for the prosecution was the appellant’s wife.  She said that she was in the lounge while the children were playing outside.  She saw her husband appear and saw that he appeared to be angered by her son’s attitude.  When asked what it was that made her conclude that the appellant was angry she said:

A.He was angry after the reaction of [my son] showing that he was afraid of him.

Q.And what was it about the accused that makes you say he was angry?  Was it words or attitude or what?

A.He was angry by the, by, because he was thinking that, ah, um, [my son] being afraid of him was not justify.

Q.Did he say anything that made you conclude he was angry?

A.Well, what he did means he’s angry.

[10]     Her description of the circumstances of the incident was as follows:

Q.Now, you described him coming and grabbing [your son] by the back of the neck?

A.Yes.

Q.What was [your son] doing at the time he did that?

A.Just, um, playing beside the trampoline.

Q.And can you describe how he grabbed him and how his face went into the dog faeces?

A.Well, he grabbed him by the back of the neck and he obliged him to, to, to put down his head to the ground and then he, he rub his face in the pooh.

Q.What part of his face came into contact with the faeces?

A.Ah, that was the front, the eye, the cheek and the mouth here (witness indicates).

Q.What did you say or do when you saw this happening?

A.I said to him that he is not to do something like this, that was disgusting.

Q.When you spoke to him what sort of tone or manner were you in?

A.I was, um, shouting.

[11]     The mother described how she then took the boy to the bathroom and washed his face.  She said the child was crying and that she was very upset about the matter.  Later on in the evening, when the children were in bed, the appellant had said to her that he was sorry he had lost his temper and explained that he was angry because the little boy was showing fear of him without any reason.

[12]     Under cross-examination the mother was firm that the child had faeces on his face as a result of the incident, although she acknowledged not having actually seen the faeces get onto his face.

[13]     The appellant gave evidence and denied that the incident had ever occurred.  He suggested that his wife had manipulated the children, including his own daughter, to lie about the matter.

Discussion

[14]     It is plain that the jury, by their verdict, rejected the appellant’s suggestion of fabrication and resolved the credibility issue in favour of the prosecution witnesses.  Having rejected the appellant’s evidence as not credible, an ample basis then existed on which they could find the appellant guilty on count one as charged.  Of particular significance was the eye witness evidence of the appellant’s own daughter, which confirmed the evidence given by the child complainant and his mother and rejected any suggestion that the incident was simply accidental in nature.  The fact that neither the appellant’s wife nor his daughter saw how the dog faeces got onto the child’s face did not detract from their unequivocal evidence that they saw the appellant take the child by the back of his neck and push his face onto the ground, and that afterward the child had dog faeces on his face.  Applying the test in
R v Ramage [1985] 1 NZLR 392 (CA) at 393, it cannot be said that the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the appellant.

[15]     We acknowledge that a charge of wilful ill treatment of a child in a manner likely to cause him unnecessary suffering may seem “heavy” given the facts on which it was based.  But Mr Gorringe, for the appellant, did not dispute that, if the boy’s evidence were accepted, the elements of the charge were made out.  Clearly, however, this particular case of ill treatment was at the lower end of the scale, as reflected in the sentence ultimately imposed.

[16]     This ground of appeal must fail.

Conviction appeal: count four

[17]     The second charge of which the appellant was convicted was count four in the indictment.  No issue was taken at trial that an incident of the nature alleged had occurred.  The defence was simply that the appellant’s action did not amount to an assault but was a justifiable correction of the child.  It was common ground that s 59 of the Crimes Act 1961 applied, the relevant provisions of which are:

59.Domestic discipline

(1)Every parent of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.

(2)      The reasonableness of the force used is a question of fact.

[18]      The child complainant did not give evidence at trial but the Crown called evidence from the appellant’s wife and from the real estate agent.  The appellant’s wife described the appellant’s action as:

A.… he grab her by the hair and pull her out from the place to make her come with us.

…

Q.To what extent can you describe he grabbed her and what happened to her?

A.Well, he grab her by the hair and forcing through the hair he remove her from the front shop and her reaction was she was crying, so that was certainly painful.

[19]     Under cross-examination, she described the child as “screaming and crying” while the appellant had hold of her hair and said that she would have removed the child from the area by taking her by the arm.

[20]     In her evidence, the real estate agent said that she saw the appellant grab the child either by her ear or by the hair on the left hand side of her head “fairly hard” and that the child was upset and near tears.  She said the mother calmed her down and rubbed her head, at which time the child starting crying a little bit.

[21]     The appellant gave evidence along the lines referred to in para [4] above, claiming that the hair pulling was inadvertent and that he had not removed the child from the window with any unreasonable force but was simply easing the child out “very slowly, very gradually until she stepped off the platform onto the carpet”.  He said the child looked startled but otherwise did not react.

Discussion

[22]     As the provisions of s 59(2) indicate, the reasonableness of force used by a parent towards a child is a question of fact for the jury.  If the Crown cannot exclude beyond reasonable doubt the possibility that the force used was reasonable, then the force is justified in law under s 59(1).  It is evident however that the jury in the present case were satisfied that the force used by the appellant was excessive and, in the circumstances, unreasonable.  In this regard, his explanation that he had inadvertently taken hold of the child by her hair and eased her slowly out of the window until she stepped onto the carpet was clearly rejected by the jury as a reasonable possibility.  The issue was eminently one for a jury to determine and having rejected the appellant’s version of events, the jury were then left with the evidence of his wife and the real estate agent.  Their combined evidence provided an ample basis for conviction.

[23]     This ground of appeal must also fail.

The sentencing decision

[24]     At sentencing the focus of the plea in mitigation was on a discharge without conviction under s 106 of the Act.  Mr Gorringe’s initial submission in support of a discharge was based on an assumption that it had not been proved that the boy’s face had gone into the dog faeces.  However, given the particulars specified in the charge, Judge MacLean was satisfied that the jury must have found otherwise.  Sentencing therefore proceeded on the basis that the boy’s face was rubbed in the dog faeces.  In relation to the second charge, Judge MacLean accepted that there had been a minimal degree of excess force used on the child and in a disciplinary type situation, but sufficient to amount to assault although less serious than the offending in the first charge.  He referred then to the wide range of child abuse offending, from the very serious (including murder) down to the level of offending in the appellant’s case, which he found could by no means be characterised as likely to cause physical injury.  Accepting that the appellant’s offending came at the lower end of the scale, he found nevertheless that it was child abuse, stating:

That is the reality of it. An older man, 39, taking out frustrations or concerns, or whatever it was, in a cowardly way, in a bullying way, on two vulnerable step-children. It seems inconsistent with the fact that he had willingly taken on those children and their mother for a period at least, after quite an unusual way in which they came together, and things ran quite smoothly, then the relationship turned sour. I suspect the reality was that Mr Reid was taking out his frustrations and his concerns on the children, and perhaps not facing up to getting to grips with whatever the issues were that were troubling him, in terms of the relationship;

[25]     The Judge then turned to the criteria for a discharge without conviction, as set out in s 107 of the Act, and the requirement that a discharge not be granted, unless the Court is satisfied that the direct and indirect consequences would be out of all proportion to the gravity of the offence. 

[26]     In relation to the gravity of the offending the Judge concluded that, while the offending was not in the most serious category, it was not as inconsequential as the appellant seemed to believe it was.  In relation to the consequences of conviction, he said:

Often there are occupational barrier situations arise, sometimes there can be specific travel concerns arise. Mr Gorringe has properly said neither of those apply, just that the reality of the stigma of convictions for these offences may have for future job prospects; may have in future dealings with the prisoner's own family. They are all possibilities, and I cannot see by any stretch of the imagination that the guidance criteria of s107 is met, so I do not propose to discharge without conviction.

[27]     In determining the appropriate sentence, the Judge found no particular aggravating or mitigating circumstances, noting that the matter had proceeded to a trial by jury:

… there is never any question of punishing someone for contesting the matter, simply that the discounts that might otherwise have applied for a guilty plea do not apply. In hindsight, and no doubt the prisoner may not accept at this stage, it seems to me this was a case that called out for an early and frank admission of guilt and, if that had been done, then possibly restorative justice processes could have taken place. Then possibly a reasonably lenient approach could have been taken, but sadly, for various reasons, that wasn't possible.

[28]     Concluding that a sentence of supervision, as recommended by the probation officer who wrote the pre-sentence report, was appropriate in the circumstances and that a monetary order for emotional harm reparation should also be made, the Judge said:

… the question is what the primary focus for sentencing should be. Twofold I think; One, the rehabilitative focus, which is addressed by the supervision recommendation, and that seems entirely appropriate to me. Two, the punitive aspect, simply the Court reflect then, on behalf of the community, a degree of punishment for what has been done to express society's condemnation of that and to act as both a general and specific deterrent. Victim interests very much come into play. These are very young children.

The sentence appeal

[29]     On appeal, the appellant sought leave to file two affidavits, which we received.  The first was from his employer and outlined the likelihood that the appellant’s role in servicing export customers would expand over the next 12-18 months and require him to travel overseas: to Australia, the Cook Islands, Samoa and French Polynesia.  Reference was also made to developing markets in Singapore and China.

[30]     The second affidavit was sworn by the appellant, who states that since his sentencing on 15 July 2004 it has become apparent that he may well be required by his employer to travel overseas from late 2005 or early in 2006.  He has contacted the Embassies and High Commissions of China, France, Singapore, the Cook Islands, Samoa and Australia by email to enquire as to what restrictions those countries place on travellers with criminal convictions.  By the date of the appeal he had received responses from Australia, the Cook Islands and Singapore.  The requirements for a short term visa to enter Australia for business purposes are that an applicant’s personal attributes and business background should be relevant to the nature of the proposed business in Australia and any criminal convictions must be noted and detailed for consideration by the Australian Department of Immigration and Multicultural and Indigenous Affairs.  Singapore does not require a visa for entry into Singapore for New Zealanders, but a disembarkation form has to be completed on which any criminal convictions are to be noted.  The Immigration Officer at the first point of entry into Singapore then has power to determine whether or not a visitor will be permitted to enter.  The Cook Islands Immigration requires a police document declaring any criminal offences and a clearance for those by Cook Islands Immigration is required before entry.

[31]     As is apparent from Judge MacLean’s sentencing remarks, the occupational problem now raised by the appellant on appeal was not advanced at the time of sentencing.  Thus it cannot be said that Judge MacLean erred in the exercise of his discretion by failing to give due weight to this aspect.

[32]     On examination de novo of the issue of proportionality raised by this new information, we are not however persuaded to a conclusion that the gravity of the offending is outweighed by the possible consequences of the convictions on the appellant’s ability to travel for business purposes.  The affidavit evidence does not go further than establishing that the appellant may be required to travel overseas in the course of his employment during the next two years and to countries that require disclosure and may refuse entry.  In the case of Singapore, this contingency will not be known until the point of entry to that country is reached.

[33]     Cases in which a criminal conviction may affect an offender’s ability to travel overseas come not infrequently before the Court.  In the case of Findlay v Ministry of Social Development HC HM CRI-2004-419-021 7 July 2004, Harrison J considered an appeal by a young man whose career aspirations lay in the hospitality industry and who had pleaded guilty to benefit fraud.  His employer, a major hotel, had provided a glowing character reference to the Court, which Harrison J said augured well for his career prospects.  Dismissing his appeal however Harrison J observed (at [11]) that “convictions for many defendants carry the potential to affect career and travel prospects”.

[34]     A similar issue of proportionality arose in the case of Hussain Al-Ani v
NZ Police HC AK CRI-2004-404-000113 8 June 2004.  This case involved an incident of domestic violence at the lower end of the scale, committed by a medical practitioner in poor medical health at the time.  Venning J declined to interfere with the sentencing Judge’s exercise of discretion not to discharge him without conviction, notwithstanding the appellant’s guilty pleas and the effect of a conviction on his ability to continue working in Saudi Arabia as a doctor and where he had been practising for the last several years.

[35]     Mr Gorringe referred also to three decisions of Panckhurst J (R v Jackson
HC CH CIV-2003-009-010563 11 December 2003; R v Hemard HC CH T30/03
11 April 2003; and Bell v Police HC CH A77/00 18 May 2000) in which discharges without conviction had been granted in situations where the ability of a defendant or appellant to travel overseas for business purposes might be jeopardised by the entry of a conviction.  Each of those cases turned on its own circumstances however and as this Court observed in Police v Roberts [1991] 1 NZLR 205 all cases involve particular problems. But as the Court also said:

… 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.

[36]     The correct approach is still as framed in Police v Roberts above.

[37]     Although the appellant’s offending was at the lower end of the scale, having elected to challenge the veracity of the boy complainant and his wife he was unable to claim any credit for acknowledgement of guilt or remorse.  As Judge MacLean observed, he was entitled to do so but the absence of credit for acknowledgement of guilt became a factor in assessing proportionality.  At the end of the day, the trial Judge was in the best position to carefully assess all of the merits.  He paid careful regard to every one of the factors advanced by Mr Gorringe as favouring a discharge without conviction and his decision to decline this cannot be categorised as an error of either law, principle or fact.

[38]     That leaves the additional aspect of the possible impact of the convictions on the appellant’s ability to travel overseas on behalf of his employer.  On the evidence placed before us it cannot be said with any certainty that the appellant will be prevented from carrying out this role in the future.  The only thing that can be said with certainty is that he will be required to disclose the fact of his convictions.  It will then be for the countries concerned to determine whether he should be issued with a short term business visa or, in the case of Singapore, whether he should be permitted entry to that country.  On balance, we are not satisfied that the prospect of any occupational problem resulting from this future contingency is out of all proportion to the gravity of a fleeting but degrading assault on a small boy.  If the appellant had been convicted only of the assault of one child by the pulling of her hair, the case for a discharge without conviction would have been stronger.

[39]     The Judge’s approach was correct and he acted within the scope of his discretion in declining to discharge the appellant without conviction and ordering a sentence of supervision and payment of reparation for the emotional harm done.

[40]     The appeal against sentence also fails.

Result

[41]     The appeals against conviction and sentence are dismissed.

Solicitors:

Crown Solicitors, Auckland