Sinton v The King
[2024] NZHC 3627
•2 December 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2024-483-13
[2024] NZHC 3627
BETWEEN GUY (CRYSTAL) EDWARD SINTON
Appellant
AND
THE KING
Respondent
Hearing: 13 November 2024 Appearances:
R M Gould for Appellant
O A Jessop Boivin and P D Marshall for Respondent
Judgment:
2 December 2024
Reissued:
16 April 2025
REDACTED JUDGMENT OF McQUEEN J
[1] On 3 September 2024, in the Whanganui District Court, Judge Marinovich convicted Ms Sinton of a representative charge of breaching of a protection order and sentenced her to appear if called upon within six months.1 On appeal, Ms Sinton seeks a discharge without conviction. The Crown says the appeal should be dismissed.
[2] The appeal is brought out of time by two days. In the circumstances, the Crown does not oppose an extension of time being granted for the appeal to be heard and accordingly an extension of time is granted.
[3]For the reasons below, I consider that Ms Sinton’s appeal should be dismissed.
1 R v Sinton [2024] NZDC 25707. Family Violence Act 2018, ss 90(a) and 112(1)(a): maximum penalty three years’ imprisonment.
SINTON v R [2024] NZHC 3627 [2 December 2024]
The offending
[4] Ms Sinton and the complainant had been in a relationship for over 13 years when their relationship ended in late 2020. Ms Sinton and the complainant have a child together.
[5] On 13 February 2024, a temporary protection order was issued against Ms Sinton.
[6] As part of arranging care for their child, on 15 April 2024, Ms Sinton and the complainant started using AppClose which is designed as a co-parenting application for separated parents to communicate and inform one another about events and relevant information surrounding their child. On 22 April 2024, the complainant’s lawyer emailed Ms Sinton outlining that the purpose of AppClose was for matters related to their child only.
[7] Between 21 April and 10 May 2024, Ms Sinton messaged the complainant approximately 25 times. A number of the messages sent to the complainant outlined the illness that Ms Sinton had and the treatment she received whilst in police custody. In another message, Ms Sinton informed the complainant that Ms Sinton had successfully defended her active breach of protection order charge.
[8] Ms Sinton and the complainant had an agreement that a third party would pick up and drop off their dogs on a weekly basis. On 3 May 2024, Ms Sinton was unable to organise anyone to take the dogs to the complainant’s address. Ms Sinton drove to the complainant’s address, and let the dogs run up the driveway to the complainant’s car. The complainant heard the dogs barking and went to retrieve them. When the complainant was at her car, she looked down the driveway and saw Ms Sinton looking down the driveway, before leaving shortly after. The complainant messaged Ms Sinton to say she did not want Ms Sinton to come to her house. Ms Sinton did not reply.
[9]On 10 May 2024, Ms Sinton messaged the complainant stating:
If the Court doesn’t provide a better date, I am going to apply to have it moved to another court. More expensive, so you might want to consider settling this, do you realise the mental impact this has caused me?
[10] On 12 May 2024, the complainant went to the Whanganui Police station to complete a formal written statement. While completing the statement, the complainant received several notifications on her phone. During a break, the complainant checked her phone and had received nine more messages from Ms Sinton. One of the messages stated:
Hearing as I am perfectly comfortable with the process and you will have to [be] cross examined by me. That’s not what anyone wants. So for once do what is right by [our child]. You don’t have the money to keep fighting me, and if you care about [our child] do what is right.
[11] The complainant replied to Ms Sinton stating, “[p]lease stop sending me messages not directly related to the guardianship of [our child] or care of dogs. Thanks”. In the next five minutes, Ms Sinton sent a further three messages to the complainant.
District Court judgment
[12] In a brief decision, the District Court Judge took Ms Sinton’s guilty plea to the representative charge and entered a conviction. The Judge referred to the summary of facts that was accepted by Ms Sinton, and context provided by Ms Sinton’s counsel. The Judge indicated he would follow the recommendation for sentence, given Ms Sinton’s background, and ordered her to appear for sentence if called upon within six months.
Approach on appeal
Jurisdiction
[13] It is well-established that an appeal against a refusal to grant a discharge without conviction is properly understood as a composite appeal against conviction and sentence under s 232 of the Criminal Procedure Act 2011 (CPA).2 As the Court of Appeal said in Jackson v R, “the essence of the challenge is to the entry of a conviction, that is the nature of the decision against which the appeal is brought”.3
2 Datt v R [2024] NZCA 297 at [6] citing Gaunt v Police [2017] NZCA 590 at [9] and Jackson v R
[2016] NZCA 627 at [9].
3 Jackson v R, above n 2, at [8].
[14] The Court of Appeal considered that the principled basis on which to determine such an appeal is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering the conviction.4 In the alternative, it can be argued that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharge without conviction set out in s 107 of the Sentencing Act 2002.5
[15] If the conviction appeal fails, the Court must then proceed to the second stage of determining whether the end sentence imposed was correct.6 Should this be necessary, sentence appeals are governed by s 250 of the CPA and must be allowed where the Court is satisfied that there is an “error in the sentence imposed on conviction” and “a different sentence should be imposed”.7 Under s 251 of the CPA, the Court can impose another sentence or vary the sentence, but it cannot at this stage impose a discharge without conviction.8 The Court of Appeal in Jackson observed:9
In this respect a discharge without conviction is not a sentence because s 212 of the CPA defines a sentence as including “any method of disposing of a case following conviction”. In an appeal … where the primary challenge is to entering a conviction, the method of disposition is relevant only to the second or contingent stage of a challenge to the sentence itself. The court’s power is limited to substituting the sentence imposed with another “sentence”, thus excluding the possibility of a discharge without conviction. These provisions confirm the conceptual point that the appeal is principally against conviction.
[16] Here, however, there was no application before the sentencing Judge for Ms Sinton to be discharged without conviction. Therefore, Ms Sinton is not appealing against a decision of the Judge to refuse discharge under s 106 of the Sentencing Act.
[17] Although not canvassed in submissions before me, there is authority in relation to the jurisdiction to hear an appeal where an appellant seeks a discharge without
4 At [12].
5 At [12].
6 At [13].
7 Criminal Procedure Act 2011, s 250(2).
8 Jackson v R, above n 2, at [14].
9 At [14].
conviction in circumstances where that outcome was not sought at first instance. The Court of Appeal in Bedford v R said:10
[16] In Ho v R, Mr Ho had been convicted of two assaults in the District Court where he had not sought a discharge without conviction. He appealed to the High Court on the ground that he should have been discharged without conviction. That appeal was dismissed. In this Court, Mr Ho submitted that the High Court erred in law in ruling that the failure to make an application for a discharge without conviction in the District Court precluded raising the issue on appeal. The Court put to one side whether the High Court was correct to refuse to entertain an application for discharge without conviction when there had been no such application in the District Court. The Court said it would assume, for the purpose of the appeal, that it may be appropriate to consider granting a discharge on appeal where there are changes in circumstance or fresh evidence becomes available.
[17] A number of High Court decisions have concluded that the failure to apply for a discharge without conviction at first instance is not fatal. They note that s 232 of the Criminal Procedure Act 2011 provides for an appeal against conviction if a miscarriage of justice has occurred for any reason. Section 11(1)(a) of the Sentencing Act 2002 imposes a mandatory obligation on a court to consider discharging an offender without conviction if appropriate.
[18] We are satisfied that, had Mr Bedford been made aware of the immigration consequences for his family of a conviction, he would have actively sought a discharge without conviction. Had he done so, there was a possibility of a different outcome. We accept in those circumstances it is arguable that there has been a miscarriage of justice. We therefore approach the appeal on the basis that an appellate court does have jurisdiction to consider an appeal against conviction and sentence on the grounds the offender should have been discharged without conviction where there is a change of circumstance or where fresh evidence becomes available, even if there was no such application at first instance.
[18] Thus, jurisdiction to hear an appeal against conviction and sentence may be established where there is a change of circumstances or fresh evidence has become available. Where jurisdiction is established, the courts have gone on to assess whether a discharge without conviction should be granted, determining the appeal in accordance with that assessment.
[19] Also relevant is s 233 of the CPA, which provides that if this Court allows an appeal against conviction, it must set aside the conviction. Section 233 provides for
10 Bedford v R [2021] NZCA 395 citing Ho v R [2016] NZCA 229. (Bedford v R was recently applied without further discussion in Truong v R [2023] NZCA 97 at [41]).
the other steps the Court must take, which include directing a new trial or making any other order as justice requires.11
Appropriate approach in the present case
[20] Counsel for Ms Sinton, Ms Gould, submits that the sentencing Judge failed to consider the least restrictive sentence available under s 11 of the Sentencing Act. Ms Gould also says that the lawyer acting for Ms Sinton at sentencing now accepts that he had overlooked s 11 of the Sentencing Act and the consideration that, before any conviction is entered, the sentencing Judge should turn their mind to the question whether there may be a more appropriate course than imposing a conviction. Ms Gould further says that Ms Sinton had not understood that a conviction was to be entered.
[21] These latter comments infer an assertion of counsel error. No affidavit has been filed from the lawyer involved nor from Ms Sinton, so no evidence is available to me on which to assess these assertions.
[22] Ms Gould submits primarily that this Court should allow the appeal and discharge Ms Sinton without conviction (Ms Gould having also addressed the grounds for a discharge). Ms Gould suggested that an alternative approach would be to quash Ms Sinton’s conviction and remit the matter back to the District Court for reconsideration. This alternative was Ms Gould’s preferred option if I considered there was insufficient information before me to conclude that a discharge without conviction was available.
[23] I understood counsel for the Crown, Ms Boivin, to favour this Court considering the appeal by assessing whether a miscarriage of justice had occurred (in accordance with Jackson)12, in effect by considering the substantive question of whether a discharge without conviction is warranted. Ms Boivin submits that a discharge would not have been granted in the District Court and this Court should not grant one either.
11 The Court has remitted the matter to the District Court in, for example, Tuhi v Police [2019] NZHC 2046; Wardley v R [2021] NZHC 1026; and Harris v R [2020] NZCA 553.
12 Jackson v R, above n 2.
[24] Neither counsel addressed me in any detail the issue of jurisdiction on appeal in a situation such as this.13 I conclude that the most appropriate approach in considering the appeal is that adopted by the Court of Appeal in Bedford with the effect that the matter should be finally resolved by this Court. I do not consider that this is a case where Ms Sinton’s conviction should be quashed, and the matter referred back to the District Court to determine a discharge without conviction application. Ms Sinton has had an opportunity to provide information to this Court in support of her appeal, which has been advanced on the basis she should have been discharged without conviction.
[25] It is apparent from the court record that Ms Sinton was facing additional charges and, following resolution discussions, she agreed to enter a guilty plea to a representative charge of breaching a protection order. It is accepted that counsel for the Crown at the sentencing proposed that charge be dealt with by way of an order to come up if called upon and that was the sentence imposed.
[26] Against this background, jurisdiction for the appeal could possibly be established on the ground there has been a change of circumstances, in that it is said by Ms Gould that Ms Sinton only now appreciates that she could have sought a discharge without conviction at the time of sentencing. The inference is that Ms Sinton received either no legal advice or incorrect legal advice as to this option. This is difficult to establish in the absence of evidence from Ms Sinton and her then lawyer.
[27] Nonetheless, I consider it desirable that the substantive question of whether Ms Sinton should be discharged without conviction is addressed. Accordingly, I proceed on the basis that there is jurisdiction to hear the appeal and turn to consider whether I am satisfied that a miscarriage of justice has occurred through Ms Sinton not being discharged without conviction.
13 I have not taken up an offer made by the Crown at the hearing to file further submissions.
Relevant law—discharge without conviction
[28] In effect, the task before me is to decide whether I should discharge Ms Sinton without conviction pursuant to s 106 of the Sentencing Act. Such a discharge is deemed to be an acquittal.14
[29] Section 107 of the Sentencing Act requires that a court may only discharge a defendant without conviction if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Therefore, in considering whether to discharge a defendant without conviction the Court must follow this process:15
(a)First, identify the gravity of the offence, taking into account all aggravating and mitigating factors of the offending and the offender.
(b)Second, identify the direct and indirect consequences of conviction.
(c)Third, determine whether those consequences are “out of all proportion” to the gravity of the offence.
(d)Finally, if the court decides that the consequences of conviction are out of all proportion to the gravity of the offending, the court may still decline to exercise its discretion to grant a discharge, although on the current approach, that would be rare.
[30] The gravity of the offending is informed by the culpability of the offender’s conduct determined on an assessment of the facts, rather than by the nature of the charge or by a comparison with other cases involving the same offence.16
[31] For the direct or indirect consequences of a conviction to be material, there must be a real and appreciable risk they would occur should the conviction stand.17
14 Sentencing Act 2002, s 106(2).
15 Bolea v R [2024] NZSC 46 at [39]. See also Truong v R [2023] NZCA 97 at [38] citing Z(CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
16 J v R [2021] NZCA 690 at [36]; and Z(CA447/12) v R, above n 15, at [31].
17 Sok v R [2021] NZCA 252 at [41].
Further evidence
[32] There is no formal application before the Court to adduce further evidence on appeal, however, Ms Gould filed a curriculum vitae from Ms Sinton. At the hearing Ms Gould also provided a character reference from a friend of Ms Sinton. The Crown did not object to this further evidence, although Ms Bovin questions the relevance and therefore admissibility of the reference.
Discussion
[33] Before turning to the elements of the test for discharge without conviction, I deal with Ms Gould’s argument that the sentencing Judge failed to consider s 11 of the Sentencing Act in sentencing Ms Sinton. Ms Gould says this was a material error on the Judge’s part.
[34] In the hierarchy of sentences set out in s 10A of the Sentencing Act, the least restrictive sentence is “discharge or order to come up for sentence if called on”.18 Section 11(1) of the Sentencing Act provides that:
(1)If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—
(a)discharging the offender without conviction under section 106; or
(b)convicting and discharging the offender under section 108; or
(c)convicting the offender and ordering the offender, under section 110, to come up for sentence if called on.
[35] Ms Gould is correct to say that the sentencing notes of the District Court Judge do not expressly mention s 11. There is no requirement that the Judge refer to s 11 explicitly. Moreover, there is nothing to suggest that the Judge overlooked the provisions of s 11. In fact, it is apparent that the Judge had firmly in mind the provisions of that section given that the sentence imposed of ordering the offender to come up if called upon is one of the sentencing options available under s 11. In any
18 Sentencing Act 2002, s 10A(2)(a).
event it is hardly surprising the Judge did not refer to the section in detail given defence counsel did not put up the option of a discharge without conviction. I consider that the Judge would have been well-aware of the provisions of s 11. I also consider that the Judge would have been aware of the requirement on him under s 8(g) of the Sentencing Act to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A.
[36] In these circumstances, I conclude that the Judge did not fail to consider s 11 of the Sentencing Act. I therefore also conclude that appeal cannot succeed on the basis that the Judge made a material error in not considering s 11 of the Sentencing Act, leading to a miscarriage of justice in the entry of a conviction against Ms Sinton.
Gravity of the offending
[37] Ms Gould acknowledges that a breach of a protection order is rightly viewed as a serious matter but says they occur for a myriad of reasons. She submits the offending arose out of discord with the complainant and their child after Ms Sinton transitioned from a male to female gender. Ms Gould says that the Family Court proceedings can be viewed as getting out of hand and it was a stressful time for everyone involved, which is now over. Ms Gould submits that Ms Sinton likely felt a strong need to communicate with the complainant as a mechanism to relieve stress, rather than having a desire to flagrantly disregard a Court order. Although Ms Sinton accepts that she sent a number of unwanted messages to the complainant, Ms Gould submits that there was never any malicious or aggressive intent. She submits that the gravity of Ms Sinton’s offending is moderately low, which is further reduced by her guilty plea.
[38] Ms Boivin accepts that the gravity of offending is at the lower end of the spectrum but submits that Ms Sinton’s offending is far from being insignificant or minor. Ms Boivin says that breaching a protection order is inherently serious.19 The Court of Appeal has held that:20
19 Weidemann v R [2018] NZCA 381 at [43].
20 R v Cartwright CA175/02, 28 August 2002 at [20(e)].
People who have protection orders in their favour are entitled to expect that the Court will uphold the integrity of that protection and respond sternly to those that who flout their force and effect.
[39] Ms Boivin submits that Ms Sinton’s offending is further aggravated by the persistent nature of the breaches, including 38 actions which are accounted for in the one representative charge. Further, Ms Boivin says that this is far from an isolated lapse of judgement and instead, involved Ms Sinton continuing to contact the complainant despite warnings from both the complainant and her lawyer.
[40] Ms Boivin accepts that Ms Sinton’s behaviour is not overly threatening but says the harm from this type of offending should not be understated. She emphasises that the Family Violence Act 2018 makes it clear that “family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm”.21 Ms Boivin refers to the victim impact statement provided to the Court, where the complainant describes the period of offending as very stressful for her and their child, and that the harassment felt constant. In addition, Ms Boivin submits that the offending occurred while Ms Sinton was on bail having been charged with breaching the protection order and also in breach of a non-contact condition of that bail. Ms Boivin says these factors exhibit a concerning and persistent disregard for court orders.
[41] I do not accept Ms Gould’s submission that there was no malice or aggression from Ms Sinton in the offending. The content of some of the messages are intimidating and sent to dissuade the complainant from pursuing proceedings against Ms Sinton.
[42] Nonetheless, I consider that overall Ms Sinton’s offending can be properly categorised as being at the lower end of the scale of seriousness. The offending itself is not the most serious of its kind but weighed against this is the persistent nature of the messages, despite reminders by the complainant and her lawyer to cease conversations which do not relate to their child, and that this was stressful for the complainant.
21 Family Violence Act 2018, s 4(b). See also s 4(h) which states that perpetrators of family violence should face effective responses to, and sanctions for, family violence.
[43] I acknowledge that Ms Sinton is 53 years of age and has no previous convictions. Her lack of prior history is a relevant mitigating factor. Other matters that are commonly raised as mitigating factors of an offender (such as a demonstration of remorse or rehabilitative steps taken) are not raised for Ms Sinton.
[44] Ms Gould says that Ms Sinton has suffered significant trauma. Ms Gould refers to the time Ms Sinton spent in custody, [redacted] experiencing considerable humiliation and distress. While there is no evidence from Ms Sinton in support of this submission, the character reference provided refers to mistreatment by Police and says the Police are addressing these allegations (and Ms Gould says that Ms Sinton has received a letter of apology relating to her treatment while in custody). Ms Gould says the prosecution accepts there was “overkill” in the charges pursued against Ms Sinton, but Ms Boivin rejects that. I am simply unable to reach any view about these matters. While I accept at a level of principle that a person experiencing gender transition is likely to face a variety of challenges, here, I do not consider that Ms Sinton’s experiences with Police or in custody can be relevant in assessing whether a discharge without conviction is justified. There are mechanisms available for dealing with such allegations.
[45] Assessing the aggravating and mitigating factors of both the offending and the offender, I conclude that the gravity of the offending is at the lower end of the level of seriousness but, as Ms Boivin submits, not the least serious example of such offending.
Direct and indirect consequences
[46] Ms Gould’s main submission about the consequences of conviction relates to the impact of a conviction on Ms Sinton’s employment prospects. Ms Gould says that Ms Sinton is a qualified engineer and that considering the current difficult economic environment, [redacted] and the prejudice she already faces due to her transgender identity, a conviction will effectively put an end to any chance of obtaining employment again. Ms Gould submitted that I could reach this conclusion about the impact of the conviction, given the approach taken in R v Taulapapa and Meijler v R that did not require evidence of employers’ attitudes in general.22 Ms Gould also
22 R v Taulapapa [2018] NZCA 414 and Meijler v R [2021] NZCA 472.
provided a character reference to the Court from a friend of Ms Sinton. While the reference records Ms Sinton’s positive character attributes, it is of little assistance to me in the context of considering the impact of a conviction on her employment prospects.
[47] I agree with the Crown that simply asserting that a conviction will put an end to Ms Sinton’s employment prospects is not sufficient. There must be a “real and appreciable” risk that any given consequence will happen.23 While there is no legal onus on an applicant to provide evidence of the impact of a conviction, they bear a practical onus in the sense that they must ordinarily point to evidence or circumstances tending to establish that the consequence will happen.24 The Court will not always assume that employers will immediately reject an applicant who has a conviction without considering what the Court has said about the circumstances, especially where the applicant is generally a person of good character.25 Where evidence of the attitude of employers is not reasonably available, the Court will do the best on the evidence available, including taking judicial notice of facts where appropriate.26
[48] In my view, neither R v Taulapapa nor Meijler v R support Ms Gould’s argument that I should conclude Ms Sinton’s employment prospects are at an end because of the conviction. Meijler v R involved a recovering drug addict facing a forgery conviction, which represents a very different factual context to the present case in terms of assessing whether the conviction reflects culpability and its effect in terms of employment.27 In Meijler, the Court of Appeal considered that a forgery conviction was likely to be taken as evidence of dishonesty therefore increasing the risk that employers would discard Ms Meijler’s application for employment without considering its merits, particularly as her future job prospects related to unskilled or semi-skilled work.28 It was on this basis that the Court did not think that it was necessary for Ms Meijler to adduce specific evidence of employers’ attitudes in general.
23 R v Taulapapa above n 22, at [22].
24 R v Taulapapa, above n 22, at [23] and [45].
25 Edwards v R [2015] NZCA 583 at [18].
26 R v Taulapapa, above n 22, at [46(c)].
27 Meijler v R above n 22 at [20]–[21].
28 At [21].
[49] Ms Sinton’s curriculum vitae ends at September 2018, when she left the United Kingdom for New Zealand. There is no other evidence before the Court to explain, if and, why Ms Sinton has not been employed since 2018, nor whether Ms Sinton is actively seeking work and has been declined because of her conviction. At the hearing, Ms Gould did indicate that Ms Sinton has been unemployed for two years. It might then be said that Ms Sinton’s unemployment is due to reasons other than her conviction given that the conviction was only entered in April this year. In any event, Ms Sinton’s curriculum vitae illustrates she is a skilled mechanical engineer having taken up roles overseas and in New Zealand and I therefore do not accept as a general proposition that an employer would not be willing to look behind the conviction to consider Ms Sinton’s merits for employment.
[50] Ms Boivin also submits that there is insufficient evidence as to how Ms Sinton’s [redacted] transgender identity currently impacts her employment prospects. I agree with Ms Boivin that, even without such evidence, the wording of s 107 directs the focus of the Court’s enquiry to the consequences of the conviction on Ms Sinton, not speculation as to other features of her circumstances that might lead to (unlawful) discrimination.
[51] Overall, the Crown says even if the Court accepts that there is a real and appreciable risk that Ms Sinton’s employment prospects will be somewhat impacted by her conviction, that it is an ordinary consequence of a conviction. Ms Boivin refers to the Court of Appeal case in Lilo v R where it was accepted that convictions have some adverse impact on employment prospects but that such a consequence fulfils the deterrence function of convictions.29
[52] I accept that where someone with no previous convictions has a single conviction this may itself operate as a mark against a potential candidate who is applying for a role with an employer. However, I am not satisfied on the evidence before the Court that Ms Sinton has been prevented from obtaining employment due to her conviction. There is no evidence to show there is a real and appreciable risk that
29 Lilo v R [2021] NZCA 642 at [35].
an employer in the mechanical engineering sphere would consider that Ms Sinton’s conviction for breach of a protection order prevents her from being employed.
Proportionality assessment
[53] Ms Gould advises there are no longer ongoing difficulties between the parties and the complainant is not seeking a renewal of the protection order and submits future issues coming before the courts are therefore unlikely. Therefore, Ms Gould submits that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. Ms Gould also says that on discharge Ms Sinton would accept an order of costs or reparation for emotional harm against her, or a direction that she undertake community work.
[54] Ms Boivin says there is no evidence as to the current position as to the protection order and therefore does not accept that the Court may reach any conclusion about future risk. She also submits that it is not enough that the consequences of a conviction outweigh the gravity of the offending, rather, significantly more is required.30 Ms Boivin says that even if there is a real and appreciable risk of an impact on Ms Sinton’s employment prospects, this impact cannot be said to be out of all proportion to the gravity of the offending.
[55] I assessed the gravity of offending as being at the lower end of the spectrum, however I was not satisfied on the evidence that the consequences asserted by Ms Gould relating to Ms Sinton’s employment prospects are made out. While I am sympathetic to the significant events and change that have occurred (and may still be occurring) in Ms Sinton’s personal life there is no basis for me to conclude that the direct or indirect consequences of a conviction are out of all proportion to the gravity of the offending. In these circumstances it is not necessary to consider the alternative responses to the offending proposed by Ms Gould.
[56] Accordingly, I conclude that no miscarriage of justice has occurred in the entering of a conviction against Ms Sinton for the representative charge of breaching
30 R v Smyth [2017] NZCA 530 at [12].
of a protection order. For the avoidance of doubt, I do not consider that the sentence imposed was manifestly excessive.
Result
[57]For the reasons above, the appeal is dismissed.
McQueen J
Solicitors:
Crown Law Office, Wellington for Respondent
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