SAMUEL JADE PETER THOMSON AND THE KING

[2024] NZHC 3675

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-36

[2024] NZHC 3675

BETWEEN

SAMUEL JADE PETER THOMSON

Appellant

AND

THE KING

Respondent

Hearing:	2 December 2024
Counsel:	C M Andersen for the Appellant J C Collins for the Respondent
Judgment:	5 December 2024

JUDGMENT OF GWYN J

Introduction

[1]                 Samuel Thomson appeals a decision of Judge Robinson in the Dunedin District Court declining to discharge him without conviction on one charge of indecent assault.1

1      Crimes Act 1961, s 135. The maximum penalty is seven years’ imprisonment.

THOMSON v R [2024] NZHC 3675 [5 December 2024]

Background

The offending

[2]                 On 25 February 2023 at approximately 10.15 pm Mr Thomson became involved in a violent altercation with a group of male students on Castle Street in Dunedin. Mr Thomson was shirtless and aggressive. Police supervising the Castle Street event arrested him as he advanced on the group. He struggled violently as he was being placed in the Police van.

[3]                 The indecent assault occurred on the same date. I adopt the Judge’s summary of the indecent assault:2

[7]        In summary, the complainant [Redacted] and her two friends, [Redacted], attended a student party at a flat known as the Death Star. That party was also attended by the defendant and his friend Mr Nicholson- Bertanees.

[8]        The essence of the prosecution case is that [the complainant] lit a cigarette and was smoking. The defendant came up to her and asked her to share the cigarette. She rejected that request and the prosecution says that the defendant was quite insistent and that during that interaction he was playfully punching her to the shoulder or shoulders, into the chest and also to the sternum. It is also said then that he indecently assaulted her by grabbing her vagina, placing his hand under her skirt, something that is said to have gone on for several seconds.

[9]        The defence case, as put through cross-examination, is largely one of denial. The defendant accepts that he approached a group but the defence says that the defendant put his hands on a person’s shoulders, that he did not punch, he did not touch, push or punch about the chest or sternum and that he most certainly did not push or touch the complainant’s vagina.

…

[11] After that, a fight has occurred between the defendant and an unknown party. Police have intervened and on the defendant being placed in a police van the complainant, [Redacted], had made it known to the officer in charge, Senior Constable Woodhouse, that the defendant had indecently assaulted her.

[4]                 The Judge concluded that Mr Thomson had committed indecent assault in those circumstances.

2      New Zealand Police v Thomson [2023] NZDC 27037 [October decision].

Criminal history

[5]Mr Thomson has no criminal history.

Decision under appeal

[6]                 On 9 October 2023 Judge Robinson found that the prosecution had proved all elements of the indecent assault offence beyond reasonable doubt and recorded the offence proven.3

[7]                 On 25 July 2024 Judge Robinson recorded4 that Mr Thomson pleaded guilty to one charge of behaving in a disorderly manner, but no conviction was entered at that time as he indicated that he wanted to make an application for discharge without conviction. The Judge recorded that he had found the indecent assault charge proved following a Judge-alone trial on 9 October 2023. Although the charge was proven, a conviction was not entered at the time of the October trial result because the application for discharge without conviction had been foreshadowed.

[8]                 Applying the three-step test for assessing applications for discharge without conviction, the Judge concluded:

(a)The gravity of the offending was low to moderate. The offending was not planned or premeditated. The appellant was highly intoxicated, but the Judge noted that voluntary intoxication does not reduce the gravity of the offending. Mr Thomson’s good character, genuine remorse, offer of emotional harm reparation and assessment as being unlikely to reoffend were also noted by the Judge.

(b)The general consequences included the stigma of conviction, impact on the appellant’s ability to rent property and secure insurance and the like. The Judge considered a potential impact on the appellant’s employment, although noting it is not generally for the Court to hide

3      October decision, above n 2.

4      New Zealand Police v Thomson [2024] NZDC 17509.

potentially relevant information from prospective employers.5 The Judge considered letters produced in Mr Thomson’s affidavit, from the forest manager of Mr Thomson’s current employer and another from the forestry supervisor of another forestry company, who had previously worked with Mr Thomson,, suggesting that a conviction on Mr Thomson’s record would affect his ability to obtain supervisory and management roles in the forestry industry (he has already worked his way up to the role of foreman). The Judge accepted that evidence indicated a potential for there to be adverse consequences, but considered that needed to be balanced against Mr Thomson’s demonstrated capability in his current role. The Judge put some weight on the fact that Mr Thomson already has a proven track record in the forestry industry and noted that prospective employers would likely look  at  his  record  as  a  whole.  That  established  reputation  put  Mr Thomson in a different (better) position in terms of potential adverse consequences.

(c)The Judge concluded that the consequences of conviction are not out of all proportion to the gravity of the offences. In support of this conclusion, the Judge referred to several authorities.6

[9]                 On the charge of disorderly behaviour, the Judge entered a conviction and discharge. On the charge of indecent assault, the Judge convicted Mr Thomson and ordered him to pay emotional harm reparation in the sum of $1,500.

Submissions

For the appellant

[10]              Ms Andersen, for the appellant, submits the District Court Judge erred by disregarding the supporting letters filed with the appellant’s application which outlined the potential consequences to his career trajectory. This led to an error in assessing

5      Lawrence v New Zealand Police [2016] NZHC 148 at [24].

6      Burton v New Zealand Police [2015] NZHC 3251; Sachu v R [2023] NZCA 610; Hanley v New Zealand Police [2019] NZHC 1544; Lopati v New Zealand Police [2019] NZHC 198; and Rahim v R [2018] NZCA 182.

the consequences as being at a “relatively low level”, on the basis of the Judge’s view that employers could look past Mr Thomson’s convictions.

[11]              The appellant submits that he would not be on equal footing for employment opportunities regardless of the conviction, as the letters from the two forestry industry managers demonstrate. The appellant proved his capability in the forestry industry without a conviction. The appellant submits there was no evidential basis for the Court to conclude that the consequences raised in the support letters were not real and foreseeable consequences.

[12]              The appellant submits the Judge erred by finding B v New Zealand Police7 was distinguishable. The Judge noted8 that the case was “factually pretty similar”, but went on to say a discharge was refused on appeal. In that case, a volunteer lifeguard pleaded guilty to three representative charges of indecent assault in respect of trainees under his charge. The High Court discharged him without conviction, finding that three indecent assault convictions are likely to deter most prospective employers.9 The appellant says he is in the same position; prospective employers are unlikely to look beyond the fact of conviction, notwithstanding that his conviction arises from offending outside a work environment.

[13]              The appellant submits the Judge erred by concluding that the appellant was able to overcome his childhood circumstances outlined in the psychological report and as such the consequences of conviction would likely be low level for him. The psychological report observed that Mr Thomson suffers from generalised anxiety and post-traumatic stress which can manifest in “unpredictable behaviour, scattered thinking, and brash and impetuous actions and moods”. That indicates a lack of resilience.

[14]              Ms Andersen submits that, while the Judge did refer to the potential general consequences of a conviction, he did not engage in an assessment of those factors and was in error in failing to do so. Counsel referred to J (CA32/2021) v R where the Court

7      B v New Zealand Police [2016] NZHC 1118.

8 At [31].

9 At [30].

of Appeal observed the relevance of general consequences.10 Mr Thomson is a young man (aged 23), renting accommodation and would face exclusion from obtaining leases as a result of conviction. There is a significant stigma accompanying sexual assault convictions. Given his youth, Mr Thomson will be applying for a number of jobs throughout his career. He is less likely to obtain future employment when competing with candidates of similar experience who do not have an indecent assault conviction. Further, the appellant gave evidence as to difficulties entering a relationship with such a conviction.

[15]              The appellant submits the decisions the Judge cited in support of the proportionality conclusion are distinguishable on their facts. In Burton v New Zealand Police, the application was declined because there was no evidence of consequences, and J (CA32/2021) v R now supersedes that reasoning. In Sachu v R the Court of Appeal considered an appeal on the basis of counsel incompetence. In Hanley v R the offending involved “aggressive sexual assault” and the appellant lacked remorse and insight. In Lopati v New Zealand Police, the High Court found that the consequences for the appellant’s employment were merely speculative.

[16]              In oral submissions Ms Andersen addressed the Crown’s submission about the “employer’s “right to know”. The respondent relied on Sterjov v New Zealand Police11 which, as Ms Andersen noted, concerned the relevant liquor licensing authorities, rather than an employer, having the relevant information to determine the issue.

For the respondent

[17]              The Crown submits there was no miscarriage of justice. The Judge’s assessment of the offending was appropriate, and it was open to him to decline the application.

[18]              The Crown submits that the Judge correctly assessed the gravity of the offending as relatively low level. As the Judge noted, the Court is hesitant to usurp the role of a professional body or employer to decide the significance of a conviction.12

10     J (CA32/2021) v R [2021] NZCA 690 at [49].

11     Sterjov v New Zealand Police [2015] NZHC 3103 at [30].

12     Stewart v New Zealand Police [2015] NZHC 165 at [30].

It is not the Court’s role to prevent employers from knowing about convictions, particularly when those convictions may be relevant to assessing the appellant’s suitability for the role.   That relevance is engaged here, the Crown says, because   Mr Thomson got intoxicated to the point of losing his memory, but he wishes to obtain management positions which would inevitably involve him working in a position of authority over other staff and having responsibility for risk management. The Crown submits that the Judge was correct to consider potential employers could look past Mr Thomson’s conviction.13

[19]              The Crown observes there is no suggestion that the appellant will lose his current employment as a result of the convictions. The forestry manager of his current employer suggests that the appellant’s conviction will hinder his progression into supervisory roles but does not expand on this. The other witness from the forestry industry suggests that the conviction “may” affect the appellant’s future chances of obtaining management roles in the forestry industry.

[20]              The Crown submissions observe that the appellant himself says career progression in the forestry industry can occur through shoulder tapping. It is therefore unclear how his conviction would impact on his progression, particularly when it is also unclear if progression would be contingent on criminal history checks. The Crown submits there is no real and appreciable risk that the appellant’s career trajectory would be adversely impacted by the convictions.

[21]              The Crown agrees that the general consequences of conviction are relevant to the assessment of whether to discharge a defendant without conviction. However, the Crown submits the Judge had regard to these at [16] of his decision, namely “the stigma of conviction, the impact on your ability to rent property, and secure insurance, that kind of thing.”

[22]              The Crown submits that the Judge placed appropriate limited weight on the general consequences of a conviction. Landlords can only ask specific questions about relevant criminal history (indecent assault might be a relevant violent offence), so the Crown says it is unclear whether the appellant’s convictions would prevent him from

13     Wong v New Zealand Police [2017] NZHC 2017 at [24].

obtaining leases. In any event, there is no evidence about likely difficulties with accommodation. Accordingly, the consequences of conviction are not out of all proportion to the gravity of the offence.

[23]              The Crown submits that the cases the Judge referred to in support of the proportionality conclusion were appropriate and factually comparable. Hanley v New Zealand Police and Lopati v New Zealand Police both relate to discharges without conviction in similar circumstances. In the latter, the appellant had also demonstrated a well-regarded record of employment and the consequences were said to be speculative.

Relevant law

[24]              Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, the court “may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence”. Section 107 guides the application of s 106:

107     Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[25]About the s 107 test, the Court of Appeal said in Prasad v R:14

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.

14     Prasad v R [2018] NZCA 537 at [11] (footnotes omitted).

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.

[26]              This appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence under s 232 of the Criminal Procedure Act 2011.15 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:16

(a)by virtue of a material error by the sentencing Judge in entering a conviction; or

(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act.

[27]              The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.17 It is a matter of fact requiring judicial assessment and the discretionary power of the court to discharge without conviction arises only if the s 107 threshold has been met.18 The usual appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.19

Analysis

Gravity of the offence

[28]              I agree with the Judge’s assessment of the gravity of the offence as relatively low to moderate. The offending occurred at a student party, where the complainant should have been entitled to feel safe, relax and enjoy herself. Instead, the appellant was insistent on sharing her cigarette and then placed his hand under her skirt for

15     Datt v R [2024] NZCA 297 at [6], citing Gaunt v New Zealand Police [2017] NZCA 590 and

Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

16     Jackson v R, above n 15, at [12].

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

18 At [28].

19 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. This approach was confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New Zealand Police [2018] NZHC 2471.

several seconds without her consent. The complainant suffered emotional harm. The appellant lacks insight, denying the offending and claiming he could not remember as a result of heavy intoxication.

Consequences of conviction

[29]              While I accept  the  Crown’s  submission  that  there  is  no  evidence  that  Mr Thomson’s current rental agreement will be affected by his convictions, and no evidence from property managers or landlords about different treatment for prospective tenants with convictions, it is relevant to have regard to the general adverse consequences likely to attend conviction.20

[30]              Those include the stigma of conviction, particularly for indecent assault, which may affect Mr Thomson’s entry into relationships or ability to rent property, when the fact of those convictions is relevant information.

[31]              I accept that there are real and appreciable consequences for the appellant’s career progression as demonstrated by the evidence of the two witnesses from the forestry industry. Against that, there is no evidence that the appellant’s current employment will be affected by his convictions. He is currently in a quite senior role, supervising other workers. He has a good reputation in the forestry industry and has demonstrated capability to date. I note the Judge’s observation that having an established employment record puts Mr Thomson in a rather different position than might be the case if he were at the beginning of his career. But against that, I accept that as a 23 year old he will likely have many more job applications to make in the course of his career. I agree with Lang J’s observation in B v New Zealand Police,21 that few prospective employers are “likely to go to the trouble of asking [the appellant] to fully explain the circumstances that led to the convictions”.

Proportionality

[32]              By a fine margin, I am satisfied that the consequences of conviction — both to the appellant’s future job prospects and more generally — are out of all proportion to

20     J v R, above n 10, at [42].

21     B v New Zealand Police, above n 7, at [30].

the gravity of the offending. I accept, as Ms Andersen submitted, that this case is analogous to B v New Zealand Police in that the offending occurred outside of the work context but has the potential to affect employment prospects (and did so, in the case of B). Given that and the distinct differences with the other cases cited by the District Court, it would be inconsistent if I were to conclude otherwise.

Residual discretion

[33]              While my conclusion is sufficient to justify a discharge without conviction, I have also considered the point made by the District Court Judge, and emphasised by the Crown, that the Court should not usurp the right of future employers to make a fully informed decision. The appellant has no previous convictions (other than traffic offences) and there is nothing to indicate he has acted in this way before. The conduct did not occur at work but rather at a social event during university orientation week when he had been (as described in the psychological report provided to the District Court) “partying” for several days. That report describes Mr Thomson as having had an “en bloc” blackout as a result of his drinking. To be clear, the fact of intoxication does not amount to a mitigating factor when assessing the gravity of the offending, but the particular context in which the drinking occurred is relevant to the likelihood of reoffending.

[34]              From the factors listed above, I am prepared to conclude that Mr Thomson poses a low risk of reoffending, particularly in the workplace.

Result

[35]              The appeal is allowed. I make an order under s 106 of the Sentencing Act 2002 discharging Mr Thomson without conviction on the charge of indecent assault.

Gwyn J

Solicitors:

Crown Solicitor, Dunedin