S v The the Queen
[2022] NZHC 164
•11 February 2022
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT/COMPLAINANT PURSUANT TO SS 200 AND 201 CRIMINAL PROCEDURE ACT 2011. SEE PARAGRAPH [76]
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-485-89
[2022] NZHC 164
BETWEEN MR S
Appellant
AND
THE QUEEN
Respondent
Hearing (by VMR): 3 February 2022 Counsel:
N Levy QC for the Appellant
R K Thomson for the Respondent
Judgment:
11 February 2022
JUDGMENT OF GWYN J
Introduction
[1]The appellant appeals against two decisions of the District Court:
(a)On 17 June 2021 to refuse the application for dismissal of charges for offending when the appellant was within the Youth Court’s jurisdiction (pursuant to s 322 of the Oranga Tamariki Act 1989).1
1 R v S [2021] NZDC 11439.
S v R [2022] NZHC 164 [11 February 2022]
(b)On 12 November 2021 on conviction and sentence of eight months and two weeks’ home detention.2
[2]On 12 November 2021 the appellant pleaded guilty to:
(a)one representative charge of indecent assault on a girl aged 12-16 for offences during the period 1 January 1980 to 2 August 1984;3 and
(b)one charge of incest relating to offending in December 1984.4
[3]The appellant was initially charged with:
(a)five charges of indecently assaulting a girl between 12 and 16 years of age pursuant to s 134(2)(a) of the Crimes Act 1961;
(b)one charge of sodomy pursuant to s 142(1)(a) of the Crimes Act 1961; and
(c)one charge of rape pursuant to s 128(1)(a) of the Crimes Act 1961.
Background
[4] Some of the facts remain disputed. What follows is a summary of the facts on the basis of which S pleaded guilty and was sentenced.
[5] S is now 56 years old. The victim, S’s sister, is two and three quarter years younger than S. The charges, laid in July 2020, relate to offending which occurred between 1 January 1980 and 31 December 1984, when S was 14 to 19 years old and the victim was 11 to 16 years old.
[6] The representative charge of indecent assault relates to four incidents, including instances of S touching the victim on her vagina; anal penetration of the
2 R v S [2021] NZDC 22276.
3 Crimes Act 1961, s 134(2)(a): maximum penalty of 7 years’ imprisonment. This is now s 134(3) and carries the same maximum penalty.
4 Section 130: maximum penalty of 10 years’ imprisonment.
victim by S; S performing oral sex on the victim; and S making the victim perform oral sex on him. The charge of incest relates to an incident in 1984 when S climbed into bed with the victim and began to digitally penetrate her vagina and climbed on top of her and penetrated her vagina with his penis.
Lower Court’s decisions
Judgment of 17 June 2021
[7] S made an application for dismissal of four charges of indecent assault and the charge of sodomy, pursuant to s 322 of the Oranga Tamariki Act, on the grounds that the time elapsed between the date of the commission of the alleged offending and the hearing has been unduly protracted.
[8]Judge Kelly declined the application.
[9] The Judge did not find the delay of 37 years to be unduly protracted from the perspective of S, who is now 56 years old. This was because there was a valid explanation for the delay; S’s age at the time the charges were laid did not engage the principle that decisions should be made in a timeframe appropriate to a young person’s sense of time; and S’s offending continued when he was 19 years old.
[10] The Judge found that, even if the delay had been unduly protracted, she would not have exercised her discretion under s 322 to dismiss the charges. This was because the offending was serious; the offending continued until S was older, including once he was an adult; S provided cogent corroboration of the offending by making admissions/partial admissions; there is public interest and strong policy support in trying historical sexual offences; and because of the complainant’s personal interest in the case proceeding. The Judge balanced these factors against the factors in favour of dismissal, which were that S had not subsequently offended and had undertaken extensive counselling. The balancing exercise resulted in the outcome that the charges should not be dismissed.
Judgment of 12 November 2021
[11] Subsequently the charges were amended and on 12 November 2021 S pleaded guilty to one representative charge of indecent assault and one charge of incest.
[12] S applied for a discharge without conviction in relation to that offending5 and permanent name suppression.
[13] The Judge declined S’s application for a discharge without conviction. The Judge considered that although the consequences of conviction were serious, they were not out of all proportion to the seriousness of offending.
[14] In sentencing S, the Judge began with a starting point of four years’ imprisonment: three years for the indecent assaults, uplifted by one year for the incest charge. The Judge then gave a 65 per cent reduction for the substantial mitigating circumstances, as follows:
·25 per cent for S’s guilty plea;
·20 per cent for S’s youth at the time of offending;
·15 per cent for rehabilitation; and
·Five per cent for remorse.
[15] This would have led to a prison sentence of just less than 17 months’ imprisonment. However, the Judge considered home detention appropriate and sentenced S to eight months and two weeks' of home detention with standard conditions.
[16] On the issue of name suppression, the Judge found that publication would lead to extreme hardship for S on mental health grounds. Accordingly, permanent name suppression was granted.
5 Sentencing Act 2002, s 106.
Grounds of appeal
[17] The grounds of appeal are that there has been a miscarriage of justice in the imposition of a conviction for the offending as a s 322 Oranga Tamariki Act discharge and/or a discharge without conviction should have been granted.6
[18] Alternatively, if the conviction was not a miscarriage of justice, there has been an error in sentencing and a different sentence should be imposed.7
Submissions
For the appellant
[19] The central submission for the appellant is that on both occasions the District Court failed to give appropriate weight to the breadth and depth of S’s acceptance of guilt, remorse, and rehabilitation since offending. This is relevant to the appeal against conviction and sentence.
Appeal against conviction (refusal of s 322 application for dismissal of youth charges)
[20] First, the appellant submits that the delay between the offending and date of hearing, of 37 years,8 is unduly protracted, from S’s perspective. This is because S has been dealing with the guilt, contrition and worry as consequences of the offending since it occurred. He has made himself accountable for the offending, including by early admissions of guilt and steps taken in rehabilitation. The victim is not therefore dependent on the criminal justice system for vindication of the harm that has been done to her.
[21] Second, the appellant submits that because the delay was unduly protracted, the Judge should have exercised her discretion to dismiss the charges of youth offending. The appellant’s submissions emphasise S’s rehabilitation efforts, including admissions made by S and his commitment to therapy. In particular, the youth justice
6 Criminal Procedure Act 2011 s 232.
7 Section 250.
8 Above n 1, at [72].
principle of considering the wellbeing and best interests of the young person is invoked as support for dismissal under s 322.
[22] The appellant’s submissions describe S as a sensitive young person with developing mental health problems who was not supported by his parents or teachers, and, came to develop an obsession with sexual activity. This context is used to explain S’s offending.
[23] Under this aspect of the appeal, the appellant finally submits that if the youth charges are dismissed pursuant to s 322, the single charge of incest would not have come to court and could not require a prison sentence. Instead, an emotional harm payment and/or community work would be an appropriate sentence.
Appeal against sentence (if charges not dismissed under s 322)
[24] The appellant argues that, when viewed in context, the offending was of minor to moderate seriousness only, rather than the “moderate to moderately serious” label Judge Mill adopted or Judge Kelly’s description of the offending as “serious”. The context includes a difficult upbringing for S; S’s youth at the time of offending; and S’s honest belief that the victim was consenting. Furthermore, the appellant argues that the offending was considered more serious than it should have been by the sentencing Judge because he was unduly influenced by the victim impact statement which went “far beyond” the effects of the offending S was being sentenced for.
[25] The appellant submits that a starting point of imprisonment was not appropriate and led to a sentence that was manifestly excessive. Additionally, the available and appropriate discount for mental health (of 20 per cent) was not included and a further discount (of five per cent) should have been applied for youth (instead of the 20 per cent already applied). Failing to do so also made the sentence manifestly excessive.
[26] Finally, home detention was an inappropriate sentence because of S’s mental health issues.
Composite appeal against conviction and sentence (refusal of s 106 discharge without
conviction application)
[27] The appellant submits that the test for discharge without conviction was made out here because the consequences of conviction would be out of all proportion to the seriousness of the offending.
[28] The appellant submits the seriousness of the offending was overstated in the sentencing judgment. And the serious adverse consequences of conviction, particularly on S’s employment prospects, were not fully appreciated. Considered together with the internal guilt S has already punished himself with, the conviction is out of all proportion to the offending.
For the respondent
Appeal against conviction (refusal of s 322 application for dismissal of youth charges)
[29] The respondent submits that the Judge was correct in concluding that the delay of 37 years in this case was not unduly protracted: there was a reasonable explanation for the delay, and, importantly, S was not blindsided by the charges, having known for most of his adult life that the victim considered he had sexually abused her. Moreover, the offending was not a one-off; rather it was a pattern which started when S was a young person and continued into young adulthood.
[30] Even if the delay had been unduly protracted, the respondent submits that the Judge’s exercise of discretion not to dismiss the charges was not an error of law as the Judge considered all relevant principles and did not rely upon any irrelevant principles. The respondent submits that although the “best interests of the young person” is one relevant youth justice principle, as noted by the appellant, other principles include public interest, the interests of the victim and accountability of the young person, all of which support not dismissing the youth charges.
[31] Finally, the respondent submits that S’s offending at the time when he was 19 years old shows that his offending was not an impulsive error of judgement or a brief phase — the kind of offending s 322 is aimed at. Rather, it was compulsive when he knew responding to the compulsion was wrong.
Appeal against sentence (if charges not dismissed under s 322)
[32] The respondent submits that a sentence appeal must focus on the end sentence rather than the process by which it was reached. When this is considered, the end sentence S received of eight and a half months’ home detention is not manifestly excessive for his moderate to moderately serious offending. Further, the 65 per cent discount is irreproachable, if not generous.
[33] The respondent submits that S has the resources and family support to better manage boredom and loneliness during the home detention sentence compared to many other offenders.
Composite appeal against conviction and sentence (refusal of s 106 discharge without
conviction application)
[34] Under this head, the respondent submits that the appellant must show an error in the sentencing assessment such that the consequences of conviction would be out of all proportion to the gravity of the offence.
[35] The respondent submits that the Judge was correct to conclude that the offending was moderate to moderately serious. Further, the respondent disputes the appellant’s allegation that the sentencing Judge used the victim impact statement in an illegitimate way.
[36] As a matter of jurisdiction, the respondent notes that the appellant’s appeal against the refusal to grant a s 322 dismissal must also pass through the gateway of seeking to vacate his guilty plea. The orthodox position is that this is permitted only in exceptional circumstances. However, the Crown concedes that the best way to approach this aspect of the appeal is that the s 322 decision affected the trial outcome, because S would not have pleaded guilty if the charges had been dismissed. If that decision was in error, a miscarriage of justice would have occurred and S must be allowed to vacate his plea to allow the appeal to proceed.
Relevant law
Issue 1: Appeal against conviction (refusal of s 322 application for dismissal of youth charges)
Vacating Guilty Plea
[36] In the normal course where an appellant has pleaded guilty, an appeal against conviction will succeed only in exceptional circumstances.9 The categories of cases where a guilty plea may be vacated after conviction are not closed.10 The appellant must show that a miscarriage of justice will result if the conviction is not overturned.11 Not every “error or irregularity” causes a miscarriage of justice.12
Section 322 two-stage test
[37]Section 322 of the Oranga Tamariki Act 1989 states:
332 Time for instituting proceedings
A Youth Court Judge may dismiss any charge charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.
[38] Section 322 applies to an offender who was a young person at the time of the offending, even if they were not a young person at the time they were charged.13
[39] A s 322 application creates a two-step inquiry. First, it is necessary to decide whether the time elapsed has been unnecessarily or unduly protracted.14 An appeal against this decision is a general appeal. If the delay is found to be unduly protracted, the second step involves considering whether the Court’s discretion should be exercised in favour of dismissing the charges.15 An appeal against the second step is an appeal against discretion.
9 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
10 Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [45]; and Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].
11 Criminal Procedure Act 2011, s 232(2)(c).
12 Matenga v R [2009] NZSC 18 at [30].
13 H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [28].
14 R v Mackinder [2020] NZCA 539 at [30].
15 At [30].
Stage 1: Unduly protracted delay
[39] Whether the time elapsed has been unduly protracted must be considered from the perspective of the accused.16 As the Supreme Court held in H v R, depending on the circumstances, even long delays may not be considered unduly protracted for an older accused.17 A finding of the delay being unduly protracted would be more likely where the alleged offending took place when the accused was very young or if the offending was not very serious.18
[40] On the other hand, youth justice principles may mean that the discretion to dismiss a charge under s 322 should be exercised even where the alleged offending was serious.19 The Supreme Court noted that “[t]his would especially be the case where there is good reason to consider the person has been rehabilitated (for example where there has been a long period without any serious offending).”20 The s 322 inquiry, therefore, requires a careful consideration of the particular circumstances of each case, and, “[u]ltimately, each case must turn on its own facts and the period of delay in itself is not determinative.”21
[41] The Supreme Court also considered relevant the fact that the accused in H v R had committed further sexual offending after fully becoming an adult.22 But the Court cautioned against viewing “youth” as ending after a person had reached 18 years of age. Instead, youth—as a period of development—is a broader concept than childhood and extends past 18 years of age.23
16 H v R, above n 9, at [44]; and Solomon v R [2019] NZCA 616 at [11].
17 At [44].
18 At [34].
19 At [34].
20 At [34].
21 Mackinder, above n 10, at [57].
22 H v R, above n 9, at [48]. Subsequent offending against one of H’s victims was described by the Court as occurring “long after he became fully adult”.
23 At [33]
Stage 2: Exercise of discretion
[42] The exercise of discretion in the second step of the inquiry to determine whether the charges should be dismissed is to be guided by the youth justice principles in the Oranga Tamariki Act.24 These are:25
(a)the well-being and best interests of the child or young person; and
(b)the public interest (which includes public safety); and
(c)the interests of any victim; and
(d)the accountability of the child or young person for their behaviour.
[43] Relevant to the exercise of the discretion are the following factors: the age of the accused at the time of laying charges;26 the age of the accused at the time of the offending;27 the seriousness of the offending;28 subsequent offending, particularly when committed in adulthood;29 and whether the offending was a continuing pattern or a one-off.30
Issue 2: Appeal against sentence (if charges not dismissed under s 322)
[44] Under s 250 of the Criminal Procedure Act 2011 an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.31 Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to sentence appeals.32 The Court cannot “tinker” with an end sentence if it is within range.33 The focus is on
24 At [46]; and Mackinder, above n 10, at [38].
25 Section 4A(2).
26 H v R at [47].
27 At [48].
28 At [48].
29 At [48].
30 Solomon, above n 12, at [26].
31 Tutakangahau v R [2014] NZCA 279.
32 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
33 Ripia v R [2011] NZCA 101, at [15].
the final sentence and whether that was in the available range, rather than the exact process by which it was reached.34
Issue 3: Composite appeal against conviction and sentence (refusal of s 106 discharge without conviction application)
[45] Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, a Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.35 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.36
Analysis
Issue 1: Appeal against conviction (refusal of s 322 application for dismissal of youth charges)
Vacating Guilty Plea
[46] S’s appeal against the s 322 decision will be considered, notwithstanding his guilty plea, on the basis that the decision affected the trial outcome, as S would not have pleaded guilty had the charges been dismissed. Accordingly, if the s 322 decision had been made in error, a miscarriage of justice would have occurred, and therefore, the guilty plea must be vacated under s 232 of the Criminal Procedure Act.37
[47]I turn now to assess the merits of the two-stage s 322 decision.
Stage 1: Unduly protracted delay
[48] There is no doubt that 37 years is, objectively, a very long period. In addition, this case is highly unusual in the way in which the aftermath of the offending has been dealt with. This is not a case where the facts of the abuse lay dormant for 37 years. Rather, both the victim and S have made extensive efforts to work through the adverse
34 Ripia v R [2011] NZCA 101 at [15].
35 Sentencing Act 2002, s 106.
36 Section 107.
37 Criminal Procedure Act, s 232(2)(c) and s 232(4)(a).
consequences of the offending. The appellant first took responsibility for his offending in 1984 when he informed his and the victim’s mother about the sexual abuse and promised that it would not happen again. In 1988, the appellant shared his feelings of guilt with his sister. He disclosed the fact of his offending to both his long- term partners early on in the relationships. In 1992, after he was told his sister attempted suicide because of the sexual abuse, the appellant—in accordance with his sister’s wishes—sought professional help, which included joint counselling with his sister. At this point the appellant again took responsibility for the abuse and apologised for it. Since 2003, the appellant has continued his engagement with therapy. During this time, there was a period of reconciliation which suggests some form of closure had been achieved between the appellant and his sister. However, the relationship deteriorated in 2012.
[49] Focusing on the perspective of the appellant only, as required by H v R, I see significant evidence of genuine efforts by S towards rehabilitation. He has not let the 37 years simply pass by. Rather, during that time he has attempted to actively hold himself accountable and responsible for the offending, including through his engagement with counselling—both jointly with his sister, and, separately as an individual. He has managed to overcome the difficulties he himself faced in childhood to contribute positively to society. Significantly, there has been no further offending during that 37 year period.
[50] The offending that is the subject of the incest charge took place when S was 19 years of age, and therefore, outside of the jurisdiction of the youth justice principles. However, it would be artificial to draw a line between that incident and the offending that falls within the s 322 inquiry. It is clear that both sets of offending are part of the same continuing pattern—a pattern during which the accused was a developing young person. In my view, the incest offending does not count as a factor against dismissal of charges under s 322 as it is not an example of reoffending once S had gained the maturity of an adult. Rather, consistent with the research cited by the Court of Appeal in Churchward v R and approved by the Supreme Court in H v R, S’s later offending was a part of the continuing pattern that started in his youth.
[51] In these circumstances, when assessed from the perspective of the appellant, I find that the delay between the offending and date of hearing was unduly protracted. In reaching this view, I have had the benefit of having before me S’s affidavit explaining his perspective of the delay and the Victim Impact Statement, neither of which was before Judge Kelly in the District Court.
Stage 2: Exercise of discretion
[52] Having found that the delay of 37 years between the offending and date of hearing was unduly protracted from the perspective of the accused, I turn now to the exercise of the residual discretion in the second stage of the s 322 test.
[53] An important reason for the existence of the s 322 discretion to dismiss charges for youth offending is to enable rehabilitation to occur in line with the general object in s 208(2)(f)(i) of the Oranga Tamariki Act. In this case, that rehabilitation has been underway for much of S’s adult life. S has admitted the offending; recognised the harm his offending has caused; and taken active steps to acknowledge the harm he has caused to his sister. I do not mean to suggest that S’s steps at rehabilitation can erase the consequences of the offending for the victim, but an offender who takes responsibility for those consequences exemplifies the kind of genuine rehabilitation s 322 is intended to enable. I consider S’s admissions to the offending count as a factor in favour of dismissal of the youth offending charges. An offender who admits and accepts responsibility for his offending receives greater credit under s 322 than an offender who continues to deny his offending. S admitted the incest offending to his mother, the day after it occurred. Subsequently he has admitted the conduct to which he pleaded guilty to the victim, her psychologist and the Police. It would not, in my view, be consistent with the youth justice principles in the Oranga Tamariki Act to weigh S’s admissions against the exercise of the discretion as the District Court did. An acceptance of guilt helps to meet the public interest in resolving complaints, holding the offender accountable for their offending and the interests of the victim. I accept the appellant’s submission that it meets the public interest to give credit for accountability and acceptance of responsibility.
[54] That is particularly so where there is no ongoing public safety issue. The District Court Judge pointed to the incest offending, when S was 19 years of age, as a factor weighing against the exercise of the discretion. However, it seems to me that offending was in reality part of the continuing pattern of S’s offending that began in his youth. At 19 he was not yet a mature adult and I do not think it is appropriate to treat that offending as an example of subsequent re-offending as a mature adult, in the way that H’s subsequent reoffending was treated in H v R. The incest offending here, therefore, does not preclude the exercise of the discretion to dismiss the youth offending charges.
[55] Finally, I note that the risk of S reoffending is very low. The extensive rehabilitation efforts S has taken to minimise his chance of reoffending and to accept responsibility for past offending are further reasons for exercising the discretion to dismiss the youth offending related charges in this case.
[56] My decision under s 322 that the youth offending related charges against S should be dismissed does not reflect any criticism of the reasons for delay in laying a police complaint. As noted by the Court of Appeal, “[i]t takes courage and emotional strength for complainants of sexual abuse to come forward”.38 Nor does it in anyway diminish the impact of that offending on the victim. Rather, the decision reflects the unique circumstances of this case.
[57] I allow the appeal against the refusal to dismiss the charges under s 322 of the Oranga Tamariki Act. Those charges are dismissed.
Issue 3: Composite appeal against conviction and sentence (refusal of s 106 discharge without conviction application)
[58] Given my decision that the youth offending charges ought to be dismissed under s 322, the only aspect of the appeal that remains before me relates to the incest conviction, and whether S ought to have been discharged without conviction for this offending.
38 At [54].
[59] Section 106 of the Sentencing Act is complemented by s 107. Under this provision, a 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.39
[60] The Court of Appeal has characterised an assessment under s 107 as a three- step test:40
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
[61] In Z v R, the Court of Appeal clarified the approach to applying each element of the s 107 assessment:41
[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[62] With regard to the assessment of direct and indirect consequences of conviction on a defendant, the Court of Appeal has stated that:42
39 Section 107.
40 Prasad v R [2018] NZCA 537 at [11].
41 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
42 DC (CA47/2013) v R [2013] NZCA 255.
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
[63]Furthermore, in relation to the final step, the Court of Appeal has affirmed in
R v Smyth that: 43
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
[64] First, I consider the gravity of the offence. Removing the youth justice offending from the sentencing exercise changes the gravity of the offending compared to the analysis undertaken by Judge Mill in the District Court and reduces the overall seriousness of the offending.
[65] Factors specifically relevant to the incest offending include, first, S’s honest belief that the victim was consenting. S accepts now that she was not and says he now understands the factors that shaped her responses, but he says that at the time he honestly believed she was consenting.
[66] With the victim’s consent, S admitted the incest offending to their mother the following day. In 1992, he acknowledged it to the victim and her psychologist and subsequently admitted it to the Police. S continues to accept responsibility for the offending. Finally, as already canvassed above in detail, S’s rehabilitation efforts are a significant mitigating factor for the discharge without conviction inquiry.
[67]I conclude that the offending was moderately serious.
[68] I turn now to consider the consequences of conviction for S, and whether they would be disproportionate.
[69] S submits that the consequences would be the complete removal of his ability to work in his established field. The need to declare a conviction for sexual offending would likely end any recruitment process for employment in his profession,
43 R v Smyth [2017] NZCA 530.
appointment to a board or for the specialist services that S is known for. Apart from the professional consequences, S also faces serious mental health consequences arising from conviction. The reports from counsellors provided to the Court detail the considerable concern S is contending with based on the effects a conviction would have on him and those close to him. These concerns have led to bouts of extreme despair and suicidal thinking. Furthermore, the life-long sense of shame and guilt S carries would be exacerbated by a conviction.
[70] I accept that there is a real or appreciable risk of those consequences (both professional and personal) arising. The appellant may well be able to obtain certification from the relevant professional body, notwithstanding his conviction, as the Crown submits. However, a conviction of this nature would almost certainly exclude him completely from employment and appointment in his acknowledged fields of expertise when today’s significantly changed professional and business environment is considered. The real risks to the appellant’s fragile mental health also weigh significantly on the discharge without conviction decision. Those are not risks which can be adequately dealt with by financial resources and family support, as suggested by the Crown.
[71] Accordingly, I am satisfied that the adverse consequences discussed above would be out of all proportion to the seriousness of the offending and it is appropriate to discharge S without conviction.
[72] By its nature an assessment whether the consequences of a conviction would be out of all proportion to the gravity of the offence focuses on the offender. A conclusion that the consequences would be disproportionate does not, I emphasise, detract from the acknowledged impact of the offending on the victim.
[73] I uphold the appeal against refusal to grant the application for a discharge without conviction.
Result
[74] The appeal against the District Court’s s 322 decision is allowed and the charges are dismissed.
[75] The appeal against refusal to discharge without conviction (in relation to the remaining, incest, offending) is granted.
[76] I confirm that S has permanent suppression of name, occupation and identifying details, as granted by the District Court.
Gwyn J
Solicitors:
Mr Nisbet, Wellington Crown Law, Wellington
0
8
0