Savic v The King
[2025] NZCA 391
•5 August 2025 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA386/2025 |
| BETWEEN | GORAN SAVIC |
| AND | THE KING |
| Hearing: | 21 July 2025 |
Court: | Collins, Jagose and Gault JJ |
Counsel: | V C Nisbet and H R Hancock for Appellant |
Judgment: | 5 August 2025 at 3.30 pm |
JUDGMENT OF THE COURT
A The appellant’s application to adduce further evidence is granted in part.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Jagose J)
Mr Savic appeals the 23 May 2025 decision of Judge Hobbs in the District Court at Wellington,[1] declining to discharge him without conviction on his guilty pleas to charges of burglary (x 2),[2] and breaching a protection order (x 2).[3] The Judge convicted Mr Savic on each of the charges and sentenced him to four months’ community detention and nine months’ supervision and ordered him to pay a total of $1,050 in reparations on the burglary charges.[4]
Background
[1]R v Savic [2025] NZDC 12467 [judgment under appeal].
[2]Crimes Act 1961, s 231(1)(a).
[3]Family Violence Act 2018, ss 90(b) and 112(1)(a).
[4]Judgment under appeal, above n 1, at [27] and [29]–[31].
Mr Savic is 61 years of age and has no prior criminal history. At the time of his offending, he was subject to a final protection order issued by the Family Court at Hutt Valley on 9 November 2018, in favour of the protected person, his former partner.
Judgment under appeal
After outlining the approach to an application for discharge without conviction, being if the consequences of conviction were “out of all proportion” to the seriousness of the offending,[5] the Judge noted the protection order was issued in the context of “protracted and difficult Family Court proceedings” arising from Mr Savic’s separation from the complainant.[6]
[5]At [4].
[6]At [5].
The Judge summarised the relevant background in the following way:
(a)On 31 December 2021, Mr Savic entered the home of the complainant’s friend through a back kitchen window while the occupants were absent. He took a large number of items, valued between $500 and $5,000.[7] The items taken included laptops, car keys and other items that obviously belonged to the occupant.
(b)On 29 April 2002, Mr Savic entered the complainant’s home, also through a window, while she was away with their son. He disarmed the alarm, tampered with CCTV cameras and took a large number of items, again valued between $500 and $5,000. He put them in his car and left the scene, after he was seen doing so by a member of the public.[8]
The Judge noted Mr Savic had sent text messages to the complainant after the burglaries related to requests for the return and repair of personal items, and also referred to the impact of their dispute on their children.[9]
[7]At [6].
[8]At [7].
[9]At [9].
The Judge assessed the burglary offending to be “serious”, as it involved residential properties, including one forced entry, with “significant impact” on the victims.[10] He noted Mr Savic maintained he had resorted to self-help to recover “personal items of significant sentimental value”, after “having unsuccessfully exhausted all legal avenues” to have them returned. Particularly, the Judge recorded that Mr Savic said he acted “out of desperation … in a way that was out of character and now deeply regretted by [him]”.[11] Nonetheless, the Judge considered “frustration with Family Court proceedings and a sense of injustice cannot justify or excuse this offending”, which included “serious” breaches of protection orders.[12] Overall, however, with some reservation about the extent to which Mr Savic accepted responsibility,[13] the Judge considered his guilty pleas, lack of previous convictions and expressions of remorse reduced the gravity of his offending to “moderately serious”.[14]
[10]At [10].
[11]At [11].
[12]At [12].
[13]At [15].
[14]At [16].
The Judge noted Mr Savic’s concern that if he was convicted, he would lose his job, as his employer had indicated he may be in breach of an employee code of conduct. It was submitted that if Mr Savic lost his job, this would have “disastrous financial implications” for him at his age.[15] While accepting his continued employment would be in jeopardy, the Judge assessed termination of Mr Savic’s employment was not inevitable, but would be the subject of “proper consideration” of the circumstances, including Mr Savic’s employment record and his personal attributes.[16]
[15]At [17]–[19].
[16]At [21].
The Judge concluded even if Mr Savic was to be dismissed, such an outcome was not disproportionate but “the predictable and ordinary consequences for offending of this kind”,[17] and declined Mr Savic’s application for discharge without conviction.[18]
Evidence on appeal
[17]At [22].
[18]At [23].
Mr Savic has filed updating evidence including confirmation, since his convictions, that a disciplinary process has progressed with Mr Savic now being suspended from his employment on special leave. The employer has stated its preliminary view that Mr Savic’s serious misconduct justifies his dismissal. Otherwise Mr Savic’s proffered affidavit recites information available at the time of sentencing.
Discharge without conviction
Discharge without conviction is deemed an acquittal.[19] Discharge is to be considered before entering a conviction and imposing a sentence.[20] This Court has held that:[21]
[J]ustification for a discharge may emerge where the conviction attracts consequences exceeding those that ought, in the court’s judgment, to follow in the particular circumstances of offence and offender.
Another way of looking at it is whether those consequences justify deemed acquittal, given convictions have their own significance.[22]
[19]Sentencing Act 2002, s 106(2).
[20]Section 11(1); and Bolea v R [2024] NZSC 46, [2024] 1 NZLR 205 at [43].
[21]R v Taulapapa [2018] NZCA 414 at [41].
[22]Te Kahika v R [2025] NZCA 258 at [46].
Mr Savic was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction were out of all proportion to the gravity of the offence.[23] The test is a question of fact requiring judicial assessment.[24] A three‑step analysis is required which considers first the gravity of the offending;[25] secondly the direct and indirect consequences of a conviction; and thirdly whether those consequences are out of all proportion to the gravity of the offending.[26] Only then may a sentencing judge decide whether or not to exercise the residual discretion.[27] There must be a “real and appreciable” risk any given consequence will arise, recognising that the court is assessing future likelihood.[28]
Submissions on appeal
[23]Sentencing Act, ss 106–107; and Williams v R [2024] NZCA 57 at [4].
[24]Dickins v R [2012] NZCA 265 at [14], citing H (CA680/2011) v R [2012] NZCA 198 at [30].
[25]See n 40 below.
[26]Sentencing Act, s 107; and Williams v R, above n 23, at [5], citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
[27]Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
[28]Bolea v R, above n 20, at [53], citing R v Taulapapa, above n 21, at [22].
For Mr Savic, Mr Hancock accepts the Judge’s characterisation of the offending as moderately serious. He contends, however, the Judge erred in his assessments of both the risks of termination of Mr Savic’s employment and its disproportionality to that seriousness, and therefore in declining to discharge him without conviction. He argues the Judge may have conflated the issues for determination by concluding loss of employment was not inevitable, thus leaving no room for determining if such consequences might displace entry of convictions. He submits the Judge’s conclusion of predictable and ordinary consequences is irrelevant to the proportionality assessment. Mr Hancock emphasises the real and appreciable risk that at Mr Savic’s age, he will not find alternative employment, which will have significant financial consequences for him and his child support obligations.
For the Crown, Mr Williams supports the Judge’s reasoning as “orthodox”, appropriately identifying the real and appreciable risk to Mr Savic’s employment as “predictable and ordinary” but not necessarily inevitable. He submits Mr Hancock’s construction of the judgment is artificial. Separately he argues the convictions were irrelevant to the employer’s concern for Mr Savic’s conduct, while acknowledging the potential conflict in Mr Savic being employed while also having his sentence administered by his employer. Finally he submits that the ordinary consequences of Mr Savic’s convictions are proportionate to his moderately serious offending.
Approach on appeal
An appeal against a refusal to grant a discharge without conviction alone (without an appeal brought against sentence in the alternative) is correctly characterised as a conviction appeal.[29] We must allow an appeal against conviction if satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or “a miscarriage of justice has occurred for any reason”.[30] Otherwise we must dismiss the appeal.[31]
[29]A v R [2025] NZCA 322 at [2], n 3; Charteris v R [2025] NZCA 244 at [6]; and De Souza v R [2024] NZCA 637, all citing Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8].
[30]Criminal Procedure Act 2011, s 232(2).
[31]Section 232(3).
The statutory definition of “miscarriage of justice” means something has gone wrong at trial (which includes a proceeding in which the appellant pleaded guilty),[32] either creating a real risk against a more favourable outcome for the appellant or resulting in the trial itself being unfair or a nullity.[33] This is difficult to apply in appeals from refusals of discharge without conviction, which may have nothing to do with what happened at trial.[34] But:[35]
The principled basis for determining an appeal against a [refusal of] discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction, or alternatively a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction …
The threshold remains high; not every error will amount to a miscarriage of justice.[36]
[32]Section 232(5).
[33]Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
[34]Jackson v R, above n 29, at [12].
[35]Gaunt v Police [2017] NZCA 590 at [9], citing Jackson v R, above n 29, at [12].
[36]Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
If this Court is persuaded that the decision of the first instance Court was wrong, Mr Savic is entitled to a fresh assessment of the matter.[37]
Discussion
[37]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5] and [16]. See also Charteris v R [2025] NZCA 244 at [42].
New evidence adduced on appeal must be “fresh, credible and cogent”.[38] The overriding criterion is the interests of justice. Evidence should be admitted if it demonstrates a risk of a miscarriage of justice.
[38]Ellis v R [2021] NZSC 77, (2021) 29 CRNZ 749 at [30], referring to Lundy v R [2013] UKPC 28, (2013) 26 CRNZ 699 at [119]–[120]; and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25]. See also R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; and B (CA463/2018) v R [2020] NZCA 18 at [19].
We accept much of Mr Savic’s affidavit is fresh and is also generally credible and cogent (although we have reservations about the reliability of Mr Savic’s valuation of his investment property). To that extent,[39] it is admitted.
[39]Meaning paras 6–7, 12–13.2 and 18–20 and annexure 1.
We see nothing in the Judge’s decision that constitutes a miscarriage of justice.
The Judge correctly applied the relevant factors when he assessed the material consequences for Mr Savic’s continued employment were not out of all proportion to the moderate seriousness of Mr Savic’s offending (of which the seriousness is not disputed).[40] From that perspective, the Judge’s assessment that the particular detriment contended for was “not inevitable” also correctly identified any such consequences would be the result of the employer’s determination of the impact of Mr Savic’s offending on his continued employment. The Judge assessed such a result, if it occurred, was not disproportionate.
[40]Assessing the gravity of offending requires consideration of aggravating and mitigating factors relating to both the offending and the offender, amounting to an evaluative, highly fact-dependent exercise: Rahim v R [2018] NZCA 182 at [15]–[16], citing Z (CA447/12) v R, above n 26, at [27]; DC (CA47/13) v R [2013] NZCA 255 at [35]; and Waine v R [2017] NZCA 287 at [21].
We endorse the Judge’s assessment of Mr Savic’s offending as moderately serious. Crucially, it involved incursions into the safety and security the complainant was entitled to expect and that Mr Savic was bound by the protection order to afford her. A protection order’s standard conditions prohibiting “any form of family violence against the protected person” extends to prohibiting “psychological abuse”.[41] This includes intimidation and harassment that Mr Savic sought to assert by the burglaries (which included deliberate property damage and his leaving on the complainant’s bed a packet of expired condoms he had obtained in division of their relationship property). As this Court has previously said, “[b]reaches of protection orders are inherently serious. The psychological harm caused to a complainant by a breach should not be understated”.[42]
[41]Family Violence Act 2018, ss 9, 11 and 90.
[42]Weidemann v R [2018] NZCA 381, [2018] NZFLR 707 at [43].
As far as the substance and degree of the consequences of a conviction are concerned,[43] clearly there is a real and appreciable risk Mr Savic’s continued employment will be indirectly affected by his convictions and, given his age and inferred future employment prospects, will impact his future financial position. Mr Savic knew that was a possibility when he sought his present employment after the charges were laid. He disclosed the then-unresolved charges to his employer.
[43]Sok v R [2021] NZCA 252, (2019) 29 CRNZ 962 at [43]–[44], citing Contact Energy Ltd v Jones [2009] 2 NZLR 830 (HC) at [133].
Realisation of the risk turns on how employers may choose to address Mr Savic’s convictions. Certainly his current employer has taken a preliminary view that Mr Savic admitted and pleaded guilty to criminal offences of which he then was convicted and sentenced, meaning his actions breached its code of conduct as constituting serious misconduct, for which dismissal on notice may be appropriate. Other employers may take a more benign or a more hostile view of Mr Savic’s convictions, presumably depending upon the materiality of the offending to any particular employment for which he is being considered. Mr Savic nonetheless may assert claims against unjustifiable dismissal from (or disadvantage in) his employment,[44] for which remedies include reinstatement, reimbursement and compensation.[45]
[44]Employment Relations Act 2000, s 103(1).
[45]Section 123.
If discharge without conviction would any more favourably be regarded, notwithstanding its deemed nature as an acquittal, is supposition. And even then it only would be a marginal distinction between conviction and discharge, rather than being qualifyingly disproportionate as between conviction and offending.[46] Where actual consequences turn on a third party’s assessment of the relevant facts, and there is no reason to think the assessment would be made otherwise than in good faith, the better approach is to leave the assessment for that party than for courts unwittingly to influence those decisions by discharge.[47] That very much is the case here, given disclosure of Mr Savic’s convictions to his employer,[48] and the contended “nexus” of the convictions to his employment.[49] This is not one of those “rare cases” where decision-makers’ scrutiny itself is of qualifying disproportionality.[50]
[46]B v R [2024] NZCA 539 at [61].
[47]Peruman v R [2025] NZCA 226 at [40]–[41], citing C v R [2020] NZCA 443 at [26]; Piukana v R [2025] NZCA 71 at [33]; R v Taulapapa, above n 28, at [42(a)–(b)] and [54]; and Ho v R [2016] NZCA 229 at [15]. Similarly, see Sok v R, above n 43, at [50], acknowledged in Bolea v R, above n20, at [48] as “an example of a case where the evidence made it clear the conviction was not the actual barrier to the outcome of concern”.
[48]Maraj v Police [2016 NZCA 279 at [28], citing Roberts v Police (1989) 5 CRNZ 34 (HC) at 36 (followed in Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011 at [26]).
[49]C v R, above n 47, at [26].
[50]Zhang v Police [2018] NZHC 285 at [32]. See also Bolea v R, above n 20, at [54], citing Jeon v New Zealand Police [2014] NZHC 66; and George v Police [2014] NZHC 1725 at [46].
We therefore also endorse the Judge’s conclusion that the consequences of Mr Savic’s convictions are not out of all proportion to his offending.
Result
The appellant’s application to adduce further evidence is granted in part.
The appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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