Shepherd v Police
[2024] NZCA 640
•4 December 2024 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA331/2024 |
| BETWEEN | CRAIG ALAN SHEPHERD |
| AND | NEW ZEALAND POLICE |
| Hearing: | 10 October 2024 |
Court: | Palmer, Fitzgerald and Grice JJ |
Counsel: | L A Scott for Applicant |
Judgment: | 4 December 2024 at 2:30 pm |
JUDGMENT OF THE COURT
AThe application for leave to bring a second appeal against the refusal to grant a discharge without conviction is declined.
B The application for leave to bring a second appeal against the refusal of permanent name suppression is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Fitzgerald J)
Introduction
The applicant, Mr Craig Shepherd, originally faced five charges of indecent assault in relation to four complainants. His defence at trial would have been that the Crown could not prove that he intended or appreciated those aspects of the assaults, and surrounding circumstances, which rendered them indecent.[1] Shortly before trial, the charges were resolved on the basis of Mr Shepherd pleading guilty to four charges of male assaults female in relation to three of the complainants. The fifth charge was withdrawn. Other than removing the facts relating to the fourth complainant, the summary of facts was not amended following the reduction in the charges.
[1]An element of the offence of indecent assault: R v Aylwin [2007] NZCA 458 at [35].
Mr Shepherd subsequently applied to the District Court for a discharge without conviction, under s 106 of the Sentencing Act 2002, and for permanent name suppression. Judge N J Wills declined both applications, convicted Mr Shepherd, and ordered him to pay reparations to each victim for emotional harm suffered.[2]
[2]Police v Shepherd [2023] NZDC 28755 [District Court judgment] at [56]–[57] and [75].
Mr Shepherd appealed against Judge Wills’ decision to decline a discharge without conviction, primarily on the basis that the Judge wrongly assessed the gravity of the offending by reference to the assaults having “sexual overtones”,[3] and by characterising Mr Shepherd’s motivation behind the offending as being sexual. Mr Shepherd says that this was inappropriate following the charges being reduced from indecent assault to male assaults female, the latter offence not containing any element of indecency. The appeal against the dismissal of Mr Shepherd’s application for permanent name suppression was very much tied to the outcome of that appeal, namely by an acceptance that permanent name suppression could only follow a successful appeal against the declined application for a discharge without conviction. In the High Court, Radich J dismissed the appeal against both decisions.[4]
[3]At [17].
[4]Shepherd v Police [2024] NZHC 995 [High Court judgment] at [98]
Mr Shepherd now seeks leave to bring a second appeal against the refusal to grant a discharge without conviction and the refusal of permanent name suppression. If the first application is not granted, Mr Shepherd does not propose to challenge his sentence. We consider the application is properly characterised as being for leave to bring a second appeal against conviction.[5] The test for leave to appeal is the same whether it is an appeal against conviction or sentence. A second appeal may be brought with leave of the second appeal court only if the court is satisfied that:[6]
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[5]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[9],
[6]Criminal Procedure Act, ss 237(2) and 289(2).
In McAllister v R, this Court confirmed that the threshold for leave to be granted is high.[7] In particular, an appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of “general principle or of general importance in the administration of the criminal law by the Courts”.[8]
[7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[38], as cited in Parore v Commissioner of Inland Revenue [2021] NZCA 312 at [11].
[8]Keenan v R [2005] NZSC 63 at [5], as cited in McAllister v R, above n 7, at [36].
Mr Shepherd says that a matter of general or public importance arises on the proposed second appeal, namely whether, when a charge is reduced and has the effect of removing an allegation that would have amounted to an aggravating feature of the offending, that aggravating feature can nevertheless be taken into account at sentencing without a disputed fact hearing. He also says that a risk of a miscarriage arises if leave is not granted, given the courts below wrongly assessed the gravity of the offending by reference to it being sexual in nature. As will be appreciated, the two grounds are linked.
The offending
We gratefully adopt Radich J’s summary of Mr Shepherd’s offending, as reflected in the agreed summary of facts:
[4] The appellant is the founder of the Wellington Bird Rehabilitation Trust. It was established in 2000 and obtained charitable status in 2010. Its admirable purpose is to rehabilitate orphaned, sick and injured birds. It operates essentially as a bird rehabilitation hospital. The outcomes that are achieved are laudable.
[5] In November 2019, victim A, an employee of the Trust, was compressing old bird pen liners in a compost bin with her feet when the appellant approached her, put his hands on her lower back and said, “I’ve been watching you, you have been a naughty girl” before patting her on her backside with an open hand. Victim A asked if he had been watching her on the cameras, to which the appellant replied, “I don’t do it normally, I happened to be looking.”
[6] Sometime between August and September the following year, victim B – also an employee of the Trust – was feeding a bird in a building used as the hospital at the Trust when the appellant approached her from behind, placed his hands around her waist and kissed the back of her neck. On another occasion during that same period, victim B was feeding a bird in the hospital when the appellant hit her on the backside with a piece of cardboard. The complainant walked away from the appellant, and he followed her, hitting her repeatedly on the backside with the cardboard as she walked.
[7] On 12 January 2021, victim C – a member of the public – came to the Trust’s premises with an injured bird who needed attention. After the appellant had treated the bird, victim C offered him a $20 note, as a donation. The appellant reached out to her as if he wanted a hug. He then rubbed the $20 note across her chest before pressing up against her body, preventing her from being able to move away from him. The appellant then firmly kissed her on the lips for about five seconds before she gathered her belongings and ran towards the door.
District Court decision
Judge Wills considered that the summary of facts disclosed a pattern of “intentional non-consensual touching” by Mr Shepherd which she considered to be an aggravating factor.[9] She considered other aggravating features were also present, including the vulnerability of the victims and, importantly for present purposes, that the offending had sexual overtones.[10] The Judge stated:[11]
It is difficult to accept that anyone exposed to the mores and expectations of society in 2023 could fail to understand that behaviour such as the defendant’s was not simply “friendly”, but that is what the defendant is inviting the Court to conclude.
[9]District Court judgment, above n 2, at [16].
[10]At [17].
[11]At [17].
The Judge also considered there to have been a considerable breach of trust in relation to the offending, and that all victims had suffered emotional harm, as demonstrated by the victim impact statements.[12] On this basis, and before taking into account mitigating factors, the Judge assessed the gravity of the offending to be “at the higher end of moderately serious.”[13]
[12]At [20]–[23].
[13]At [24].
As to mitigating factors, Judge Wills noted that Mr Shepherd’s risk of reoffending was low, he had previously been of good character, and he had taken positive steps towards addressing the harm caused.[14] However, the Judge considered these mitigating factors were somewhat offset by Mr Shepherd’s lack of insight into his offending, namely that he disavowed any sexualised motivation (stating in an affidavit provided for sentencing that he was a “huggy type person”, and has an “overfriendly nature”), and that he did not seem to be aware that his victims may have experienced his assaults as sexual.[15] While the Judge viewed Mr Shepherd’s risk of reoffending as low, she also observed that his “lack of clear insight risks a future return to what he clearly still maintains is merely overfriendly behaviour”.[16] Overall, Judge Wills found that the mitigating factors reduced the gravity of the offending, but that it still fell within the moderately serious category.[17]
[14]At [26] and [32]–[33]
[15]At [27].
[16]At [32].
[17]At [38].
Judge Wills then considered whether the consequences of a conviction would be out of all proportion to the gravity of Mr Shepherd’s offending, noting that a key concern for Mr Shepherd was the consequences of a conviction on his security business and, in turn, the impact on the Trust, which is partially funded by the business.[18] The Judge acknowledged that a conviction was a ground for disqualification from holding a security technician’s licence, but noted that there was an ability under the relevant legislation to apply for a waiver from disqualification, through which the licencing authority would be able to consider not only the circumstances of Mr Shepherd’s offending, but also his personal circumstances, including his previous good character.[19] Having referred to this Court’s decision in Zhu v R,[20] the Judge concluded that those matters, rather than Mr Shepherd’s convictions, would be relevant to the licencing authority, and thus a conviction itself would not “preclude the defendant from obtaining or retaining the relevant licence”.[21]
[18]At [40].
[19]At [45]–[46] and [50]; and Private Security Personnel and Private Investigators Act 2010, ss 62 and 64.
[20]Zhu v R [2021] NZCA 254 at [25].
[21]District Court judgment, above n 2, at [50].
Judge Wills also noted that Mr Shepherd’s conviction would potentially cause the loss of the company’s education provider clients, given the need for a “fit and proper person” check.[22] However, as that check also required disclosure of any charges on which an applicant had been discharged without conviction, the Judge again saw these matters as consequences of Mr Shepherd’s offending rather than of his convictions.[23] Taking all of these matters into account, the Judge concluded that the consequences of the convictions would not be out of all proportion with the gravity of Mr Shepherd’s offending.[24]
[22]At [52].
[23]At [53]–[54].
[24]At [56].
Finally, as to the application for name suppression, Judge Wills found that the evidence did not suggest any extreme hardship or endangerment of safety to Mr Shepherd. She said that suppression would not remove the need for Mr Shepherd to disclose his offending, while reports of the offending on social media and elsewhere may cause problems for Mr Shepherd and the Trust, these problems would be no more than an ordinary consequence of a conviction, and Mr Shepherd’s mental health did not displace the presumption of open justice.[25]
High Court decision
[25]At [66], [71]–[72] and [74].
In the High Court, Radich J addressed Mr Shepherd’s submission that following the reduction in the charges, his actions “did not carry the indecent or sexual elements of the more serious indecent assault charge[s]”, yet the suggested indecent elements to the offending had “tarnished” Judge Wells’ findings, including her scepticism about Mr Shepherd’s “motivation to offend and his level of insight into his offending”.[26] In a passage of his judgment which is of some importance to the present application, Radich J stated:
[26]High Court judgment, above n 4, at [47].
[48] Whether there are indecent or sexual elements in [Mr Shepherd’s] offending is assessed most appropriately by considering the offending itself. It involved:
(a)placing his hands on an employee’s lower back;
(b)telling the employee that he had been watching her and that she had been a naughty girl;
(c)patting the employee’s backside with an open hand;
(d)approaching another employee from behind, placing his hands around her waist and kissing her on the back of her neck;
(e)hitting an employee’s backside with cardboard and then following her as she tried to walk away while repeatedly hitting her on the backside with the cardboard;
(f)rubbing a $20 note across the chest of a member of the public;
(g)pressing up against that person’s body, preventing her from being able to move away; and
(h)kissing that person firmly on the lips for about five seconds before she fled.
[49] There is in my view no getting away from the fact that this is conduct which has sexual overtones. It involves touching and kissing women intentionally, inappropriately and without their consent. It is conduct that could neither be tolerated nor minimised.
[50] It is conduct that is in my view characterised properly as being moderately serious.
[51] This conclusion is at the heart of the case. The appellant has quite different views. He did not, it is said, intend for his actions to be sexual or indecent. Those views underpin the basis upon which the appellant has expressed his regret and has apologised, in the District Court and in this Court. In material ways, it underpins the basis for the appeal itself. But they are not views that are borne out by the conduct. The nature of that conduct would not as I see it permit that.
[52] I do accept that the appellant’s motives lacked malice. But conduct of the type described in [48] cannot simply be described as “over-friendly” behaviour.
Mr Shepherd also argued that Judge Wills’ assessment of the gravity of the offending had been inappropriately influenced by the content of the victim impact statements.[27] However, Radich J said that Judge Wills had placed the statements into their proper context.[28] Moreover, he said, the Judge acknowledged that any allegations in the statements could not be taken into account where they were not also contained in the summary of facts.[29] As to the weight afforded to the statements, Radich J said that Judge Wills did not place undue weight on them and, rather, insofar as they informed the Court of the harm flowing from Mr Shepherd’s offending, they operated as only one of several aggravating factors in her assessment of gravity.[30]
[27]At [59].
[28]At [60].
[29]At [60].
[30]At [61].
As to mitigating factors, Radich J accepted that the steps Mr Shepherd had taken since his offending were to his credit and that his character has previously been “nothing other than good”.[31] He also took into account the contributions Mr Shepherd has made to the community.[32] However, Radich J said that those contributions did not materially affect the gravity of the offending itself, and ultimately concluded that the Judge had not erred in her assessment.[33]
[31]At [63].
[32]At [63].
[33]At [64].
As to the consequences of a conviction, Radich J adopted a different approach to Judge Wills in relation to the prospect of Mr Shepherd losing his technician’s licence. He accepted that the risk of losing the licence was an indirect consequence of a conviction and not just of Mr Shepherd’s offending.[34] However, he considered that the position in relation to the education provider clients was a little different, given the fit and proper person check required disclosure of the offending regardless of a conviction.[35] The Judge went on to observe that “there will be consequences from the conviction nonetheless” (though he did not elaborate on what those consequences would be).[36]
[34]At [70].
[35]At [74].
[36]At [74].
Despite the point on which Radich J differed from Judge Wills, he concluded that no miscarriage of justice had occurred.[37]
[37]At [84].
As to name suppression, Radich J agreed with Judge Wills that the consequences of publication relied on did not meet the tests for extreme hardship or endangerment.[38] Rather, he considered the consequences of publication to be no more than those that must be expected as a result of offending of this kind.[39]
[38]At [88].
[39]At [89]–[96].
Radich J accordingly dismissed both of Mr Shepherd’s appeals.[40].
The application for leave to appeal
[40]At [98].
Ms Scott, counsel for Mr Shepherd, focused her argument on why she says this case gives rise to a matter of general or public importance, namely the proper approach to sentencing when a defendant pleads guilty to a lesser charge, but the sentencing judge nevertheless sentences on the basis of (disputed) aggravating features attaching only to the more serious charge.
However, we do not see this issue arising on the facts of this case. In entering his pleas, Mr Shepherd accepted the facts giving rise to the assaults as described in the summary of facts. Judge Wills and Radich J were therefore entitled, and indeed required, to assess the gravity of Mr Shepherd’s offending by reference to those facts.
It is correct that the reduction in charges meant that Mr Shepherd did not plead guilty to an offence which contains an element of indecency. Nevertheless, the agreed offending involved:
(a)Mr Shepherd stating to one victim that he had been watching her on CCTV, calling her a “naughty girl”, and patting her on her bottom;
(b)putting his hand around the waist of another victim and kissing her on the back of the neck;
(c)repeatedly hitting another victim on her bottom with a piece of cardboard; and
(d)rubbing a $20 note across the third victim’s chest at shoulder/bicep height, pressing his body up against her, and firmly kissing her on the lips for about five seconds.
These facts were not in dispute, and no disputed facts hearing was required in relation to them. And on any objective view, the acts set out in the summary of facts had sexual overtones, irrespective of Mr Shepherd’s intention.
Nor do we consider that Judge Wills’ assessment of the gravity of the offending was wrongly “tainted” by the content of the victim impact statements. To the extent the statements reflected the victims’ perception that the offending was sexual in nature, that is neither surprising nor inappropriate, being an expression of the effect of the offending on the victims, from their point of view. As to the complaint that the statements contained material which went beyond the proper purpose of such statements, that is unfortunately not uncommon, and sentencing judges are well accustomed to putting aside any such inappropriate material. Further and in any event, Judge Wills expressly excluded from consideration allegations made in the victim impact statements that were not also accepted in the summary of facts.[41]
[41]High Court decision, above n 4, at [5].
It follows that we do not consider Judge Wills or Radich J to have erred in viewing the sexualised nature of the offending as an aggravating factor. The nature of the offending, as set out in the summary of facts, was quite different to, and more serious than, for example, multiple assaults involving a touch on an arm, or a shoulder.
Turning to Mr Shepherd’s intention, Ms Scott gives the example of a defendant being charged with assault with intent to injure, the defence being that the defendant did not intend to injure, and before trial, the charge being reduced to one of assault. She submits that it would be wrong in such circumstances to nevertheless sentence the defendant on the basis that he did intend to assault the victim. She says a similar error occurred in this case. She says that in assessing the gravity of the offending, the courts below wrongly took into account as an aggravating factor that Mr Shepherd intended or appreciated that the assaults were indecent, when that was disputed and no disputed facts hearing was held.
We accept that that fact was disputed, and therefore if Mr Shepherd’s intent was to be taken into account as a material aggravating factor, it ought to have been the subject of a disputed facts hearing. However, Judge Wills’ comments recorded at [8] above were made in the context of assessing the objective nature of the offending, and its consequent harm to the victims. Radich J addressed and dismissed Mr Shepherd’s views about the offending at [51] of his judgment (as set out at [14] above), but like Judge Wills, his comments were made in the context of rejecting the suggestion that the conduct described in the summary of facts did not have sexual overtones, rather than in taking into account Mr Shepherd’s intent as a separate aggravating factor.
Ms Scott also says that because the charges had been reduced from indecent assault to male assaults female, the courts below wrongly dismissed Mr Shepherd’s explanation that his offending was not sexually motivated, nor intended to be sexually motivated, which had the effect of undermining personal mitigating factors such as remorse and rehabilitation.
Mr Shepherd was entitled to say that he did not consider or intend his conduct to be sexual in nature. But an offender’s remorse and efforts at rehabilitation are linked to his or her insight into their offending. Given our comments above at [24]–[26], in relation to the nature of the assaults in this case, we do not discern any error in Judge Wills’ or Radich J’s questioning of Mr Shepherd’s insight into his offending, and thus tempering of the mitigating effects of remorse and rehabilitation.
We therefore do not consider that a matter of general or public importance arises on the proposed appeal.
On the basis the courts below did not err in their assessment of the gravity of Mr Shepherd’s offending, we similarly see no reason to grant leave to bring a second appeal based on the risk of a miscarriage of justice arising. Judge Wills’ and Radich J’s assessment that the consequences of a conviction were not out of all proportion to the gravity of the offending was orthodox and was an available conclusion on the materials before them.
The application for leave to bring a second appeal against the refusal to grant a discharge without conviction will therefore be declined.
Finally, Ms Scott confirms that Mr Shepherd’s application for leave to bring a second appeal against the decision to decline permanent name suppression stood or fell with the application for leave to appeal against the decision to decline a discharge without conviction. That application will therefore also be declined.
Result
The application for leave to bring a second appeal against the refusal to grant a discharge without conviction is declined.
The application for leave to bring a second appeal against the refusal of permanent name suppression is declined.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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