Smith v Police

[2020] NZHC 3211

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000337

[2020] NZHC 3211

BETWEEN

RUSSELL WARD SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 December 2020
Appearances:	D J Taumihau & A J Greaves for the Appellant A Al-Janabi for the Respondent
Judgment:	7 December 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 07 December 2020 at 3.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Auckland
Kayes Fletcher Walker Limited, Manukau

SMITH v NEW ZEALAND POLICE [2020] NZHC 3211 [7 December 2020]

Introduction

[1]                 On 11 September 2018, following a judge-alone trial in the District Court at Manukau, Judge McNaughton found the appellant, Mr Smith, guilty of two charges of male assaults female.1 At that time the Judge indicated that he would look favourably on an application by Mr Smith for a discharge without conviction, if Mr Smith first undertook 50 hours of community work.

[2]                 Mr Smith undertook a little over 50 hours of community work. He also voluntarily undertook, and completed, an anger management course.

[3]                 Mr Smith then applied, under s 106 of the Sentencing Act 2002, for a discharge without conviction. On 20 December 2018 Judge McNaughton declined Mr Smith’s application.2 He convicted Mr Smith on both charges, and ordered him to come up for sentence if called upon within six months.

[4]                 Mr Smith appealed his convictions. Peters J allowed his appeal in part.3 Her Honour held that the Judge had erred in finding the first charge proved. One conviction was therefore quashed. In light of that, her Honour remitted the matter back to Judge McNaughton for reconsideration of Mr Smith’s application for a discharge without conviction.

[5]                 Judge McNaughton reconsidered Mr Smith’s application on 5 June 2020. The Judge again declined the application.4 Mr Smith appeals from that decision.

Facts

The offending

[6]                 This summary of the offending is taken principally from Judge McNaughton’s first decision on Mr Smith’s application for a discharge.

[7]                 Mr Smith and the complainant had been in a relationship, and had lived together, for some years. The first incident on which Mr Smith faced charges occurred

1      Police v Smith [2018] NZDC 17113.

2      Police v Smith [2018] NZDC 26856.

3      Smith v Police [2019] NZHC 2688.

4      Police v Smith [2020] NZDC 18494.

in August 2016. This was the incident in respect of which Peters J held the charge had not been proved.5 I will nonetheless refer to it briefly, because it provides context to the judgment under appeal.

[8]                 By the time of the first incident Mr Smith and the complainant had ended their relationship, but were living separate lives in different parts of the house that they still shared. There was an argument between Mr Smith and the complainant about money. The Judge found that Mr Smith grabbed the complainant by the shirt and threw her to the floor.6 The complainant struck her head on tiles. She split the skin above her eye, causing bleeding down her face and on to her shirt.

[9]                 The second incident was in December 2016. By that time Mr Smith had moved out of the  house.  However,  while  the  complainant  was  in Australia  she  asked Mr Smith to stay at the house to mind a dog. When the complainant returned from Australia to the house an argument developed. The argument moved outside. The Judge found that Mr Smith grabbed the complainant by the shirt and threw her across the lawn.7 The complainant suffered bruising and a sore leg.

Events after the offending

[10]              Mr Smith was charged in February 2017. The proceeding then had a rather convoluted history. I will set out the relevant parts.8

[11]              A judge-alone trial was scheduled for 20–21 December 2017. In advance of trial the Judge set the matter for sentence indication on 11 December 2017. At the sentence indication hearing counsel for Mr Smith made submissions in support of an application for discharge under s 106 of the Sentencing Act. An affidavit by Mr Smith was prepared for that application, but the affidavit was not (it seems) ever sworn. Judge McNaughton felt the matter was not clear enough to be dealt with on the basis of a sentence indication. The matter therefore proceeded to trial.

5      Smith v Police [2019] NZHC 2688.

6      Police v Smith [2018] NZDC 17113 at [45].

7 At [44].

8      The procedural history is  based,  in  part,  on  an  affidavit  by  Mr  Smith’s  former  counsel,  Ms Cheeseman, dated 9 April 2019. That affidavit was made for the appeal before Peters J.

[12]              The trial commenced on 20 December 2017. It was adjourned, part-heard, on the first afternoon. This occurred because the Police were unable, or refused, to provide a prosecutor for the following day. The trial resumed, and was completed, on 20 August 2018.

[13]              On 11 September 2018 Judge McNaughton delivered his decision in Court. He did not sentence Mr Smith that day. The Judge stated that if Mr Smith completed 50 hours’ community work he would look favourably on a s 106 application.

[14]              By the end of November 2018 Mr Smith had completed 51.5 hours’ community work. He also self-referred for an anger management course, which he completed on 4 December 2018.

[15]              Mr Smith’s application for a discharge under s 106 was heard and determined on 20 December 2018. Mr Smith was represented by counsel. No further affidavit was filed in support of the application. His application was declined.

[16]              Mr Smith represented himself on his appeal before Peters J. He also represented himself when the matter was remitted to Judge McNaughton for reconsideration of the s 106 application. No further affidavit was filed in support of the reconsideration of the application.

Recent affidavit from Mr Smith

[17]              This appeal was first scheduled to be heard on 20 October 2020. At the start of that hearing Mr Taumihau, senior counsel for Mr Smith, requested an adjournment. The basis for this was that Mr Taumihau had just learnt that the affidavit that had been prepared for the very first s 106 application (for the sentence indication hearing in December 2017) had never been signed or sworn by Mr Smith.9 Moreover, Mr Smith wished to clarify or correct matters in that draft affidavit.

[18]              Ms Al-Janabi, for the Crown, opposed the request for an adjournment. I granted the request. Given the procedural history that I have set out, and that Mr Smith had represented himself on the most recent hearing before Judge McNaughton, I

9      The only copy of that affidavit on the Court file is unsigned and unsworn.

determined that it was in the interests of justice that Mr Smith be given the opportunity to put his best case forward in respect of his application and this appeal.

[19]              Mr Smith made an affidavit dated 30 October 2020. Ms Al-Janabi submitted that the evidence in the affidavit was not fresh, so that its admission was not in the interests of justice. Alternatively, she submitted that if the affidavit was to be admitted, its contents did not affect the assessment under s 106.

[20]              I have determined that it is in the interests of justice to admit the affidavit.10 The affidavit is primarily directed towards the consequences of a conviction for     Mr Smith. The affidavit provides more detail about those consequences than was in the earlier unsworn affidavit, but it is broadly consistent with that earlier affidavit. Some of the consequences have arisen since the earlier affidavit (which was drafted in late 2017) and since Judge McNaughton’s decision (in December 2018) declining  Mr Smith’s earlier s 106 application. I have no reason to doubt the credibility of what Mr Smith has deposed to in that respect. I accept that Mr Smith could have provided these details by an updating affidavit for the more recent (June 2020) hearing before the Judge. But I take account of Mr Smith being unrepresented at that hearing.

Consequences of convictions for Mr Smith

[21]              Mr Smith has deposed to three consequences of a conviction: personal shame and reputational damage; consequences for his immigration status; and consequences for employment prospects. I address these in more detail below.

District Court judgments

[22]              Section 106 of the Sentencing Act confers on the Court a discretion to grant a discharge without conviction. However, the discretion is subject to s 107, which provides that the Court must not grant such a discharge unless it is satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”

10     Criminal Procedure Act 2011, s 335(2)(c).

[23]              Judge McNaughton followed what is now a standard approach to s 106 applications:11

(a)First, assess the gravity of the offending. This involves consideration of the seriousness of the actual offending, but also includes any aggravating and mitigating factors that apply to the offender.

(b)Secondly, identify the direct and indirect consequences of a conviction.

(c)Finally, consider whether those consequences are out of all proportion to the gravity of the offence.

[24]              In the June 2020 judgment that is under appeal, Judge McNaughton referred to and relied on his December 2018 judgment (regarding Mr Smith’s earlier s 106 application). I will therefore begin by summarising that December 2018 judgment. The Judge assessed the gravity of the actual offending (then consisting of two convictions) as of “moderate seriousness”.12 This was because “the complainant was injured on both occasions and the repetition of your offending makes it more serious.” His Honour then acknowledged that Mr Smith’s voluntary community work and completion of an anger management programme mitigated the gravity of the offending to the point that it was towards the lower end of the moderately serious range, “but it is difficult to characterise this as offending of minor gravity.”

[25]              The Judge then turned to the consequences of a conviction for Mr Smith, which at that point had been identified as damage to Mr Smith’s reputation and consequences for future employment. The Judge concluded that these were not truly serious consequences out of all proportion to the moderate gravity of the offending.13 He therefore declined the application.

11 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 14 at [27]; and Mathieson v Police [2019]

NZCA 406 at [8]. There is a fourth step: if the consequences of conviction are out of all proportion to the gravity of the offending, consider whether to exercise the discretion in s 106 to grant a discharge. But it will be a rare case that a Court will refuse to grant a discharge in such circumstances. On Mr Smith’s appeal the Crown does not suggest that, if the consequences are out of all proportion, the s 106 discretion should not be exercised.

12 Police v Smith [2018] NZDC 26856 at [8].

13 At [9].

[26]              In his June 2020 judgment, the Judge said that even viewing the second incident in isolation “I would still see that assault as moderately serious”.14 The community work and anger management programme were mitigating, “but, again, not to the point that I would categorise this as offending of minor gravity”.15 The Judge assessed the consequences of the offending as still being of moderate seriousness (unsurprisingly, given that no additional information was provided to His Honour as to such consequences).16 The test for a discharge was therefore still not met.

Appeal

[27]              The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which is subject to appeal on normal appellate principles. The appeal is by way of rehearing with the appellate Court making its own assessment of the merits.17

Decision

Gravity of the offending

[28]              I begin by considering the gravity of the offending. I respectfully differ from Judge McNaughton’s assessment that it was at the lower end of the “moderately serious” range. In my view it is appropriately characterised as of “low” gravity. I come to that conclusion first by considering the seriousness of the actual offending, and secondly by considering the mitigating factors that apply to Mr Smith.

[29]              I characterise the actual offending as of moderate gravity. The assault was not pre-meditated. It did not occur as part of a long-term history of violence against the complainant. The assault itself was of short duration; it was not sustained. I accept that there are aggravating factors that prevent the actual offending being characterised as of low gravity: the complainant suffered injuries (albeit not serious), and the assault occurred outside the complainant’s home.

14     Police v Smith [2020] NZDC 18494 at [3].

15 At [3].

16 At [4].

17     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].

[30]              It is also necessary to consider any aggravating and mitigating factors that apply to Mr Smith. There are no personal aggravating factors. But there are several personal mitigating factors:

(a)Mr Smith is a 57-year-old with no previous convictions. Until a back injury several years ago, he had been in employment all his adult life.

(b)He voluntarily undertook an anger management course addressing the causes of his offending.

(c)He voluntarily undertook community work (being slightly more than the Judge had encouraged him to do).

(d)Mr Smith has shown remorse. Ms Al-Janabi points out that Mr Smith continues, in his recent affidavit, to dispute the Judge’s findings as to the circumstances of the December 2017 assault. That is correct. But Mr Smith accepts that he caused the complainant’s injuries, and his account of the  circumstances  amounts to  an admission of assault.  Mr Smith then goes on to express remorse for hurting the complainant. Given the steps that Mr Smith took (the anger management course and the community work) I accept that his remorse is genuine.

(e)There is a very low likelihood of Mr Smith re-offending. Unsurprisingly, he has not offended further in the three years since the December 2017 assault.

[31]              Judge McNaughton referred to most, but not all, of these factors. I have had the benefit of more information than the Judge. When all those factors are taken into account, in my judgment the overall gravity of the offending is appropriately characterised as “low”.

[32]              I am reinforced in that conclusion by a comparison with the Court of Appeal’s recent decision in Mathieson v Police.18 There Mr Mathieson had pleaded guilty to charges of male assaults female and threatening to kill. The assault consisted of

18     Mathieson v Police [2019] NZCA 406.

Mr Mathieson grabbing the complainant (his then partner) by the jaw with both hands. He repeated this action during the course of an argument, and threatened to kill the complainant.

[33]              Before his first Court appearance Mr Mathieson, who had alcohol issues, had started on courses offered by Community Alcohol and Drugs Services, and had made inquiries about anger management and non-violence courses. In due course he completed 12 weeks of an alcohol and drugs course, and a 20-week Living Without Violence course.

[34]              The Court of Appeal said that, assuming that the actual offending was “moderately serious”, the relevant mitigating factors were “many and strong”.19 These were that Mr Mathieson was aged 40 and had only a careless driving conviction committed when he was 19; that he had been in constant employment all his adult life; that he had completed courses addressing the causes of his offending and appeared to display considerable insight into his offending; that he was remorseful; and that the impetus for undertaking the courses came from Mr Mathieson before any formal engagement with the Court.20

[35]              Taking account of those “very positive mitigating factors” the Court of Appeal’s assessment of the overall gravity of the offending was that it was “of low seriousness.” 21

[36]              Mr Smith’s personal mitigating factors are not as strong as Mr Mathieson’s. For example, although he undertook the anger management course of his own impetus, he did not do so until after his convictions. But Mr Smith’s actual offending was significantly less serious than Mr Mathieson’s.   An assessment of the gravity of    Mr Smith’s overall offending as “low” therefore sits comfortably with the Court of Appeal’s decision.

19 At [15].

20 At [15].

21 At [17].

Consequences of the convictions

[37]              Turning to the consequences of the convictions, Mr Smith does not have to establish that the consequences would occur as a matter of fact. It is sufficient to show that there is a “real and appreciable risk” of the consequences occurring.22

[38]              As it happens, and as will appear below, some of the consequences have already happened. This is a function of the two years that have already passed since Mr Smith was first convicted.

[39]              Mr Smith points to three consequences. The first is personal shame and reputational damage. I have no doubt that these have occurred, and will continue to occur if the conviction remains. But I place very little weight on them. Personal shame is an ordinary consequence of a conviction. As to reputational damage, there might be some circumstances in which the damage to an offender’s reputation is so substantial that it is relevant to the s 106 assessment. But that is not the case here.  Mr Smith merely refers, without any further detail, to the “negative impact” that the conviction has had on his reputation.

[40]              Secondly, Mr Smith says that the conviction has, and will continue to have, consequences for his immigration status. Mr Smith is a permanent resident of New Zealand, but not yet a citizen. In March 2019 Mr Smith travelled to South Africa to visit his sick mother. This caused his residence visa to expire. Mr Smith’s application for a fresh visa was delayed for two months because of his conviction. This caused him considerable expense and inconvenience. In addition, he is concerned about the impact of the conviction on any application he may bring for citizenship. The effect of s 9A(1)(c) of the Citizenship Act 1977 is that Mr Smith is unable, for a period of three years from the date of the conviction, to obtain citizenship. That period will expire in December 2021. Even then, Mr Smith will need to satisfy the good character requirement in s 8(2)(c) of the Citizenship Act.

[41]              I place very little weight on the last of these immigration matters (the good character requirement). There is no evidence to suggest that the immigration authorities would not look fairly and rationally at the particular circumstances of

22     Mathieson v Police [2019] NZCA 406 at [18], citing R v Taulapapa [2018] NZCA 414.

Mr Smith’s conviction in determining whether he is of good character. It is appropriate that that matter be determined by the immigration authorities, rather than pre-empted by the Court granting a discharge.23

[42]              It is different for the two other immigration matters. Mr Smith has already suffered significant expense and inconvenience with his visa; that he was eventually able to obtain a visa does not change those facts. There is a real and appreciable risk of those consequences occurring again. Mr Smith’s inability to obtain citizenship for three years (if the conviction stands) is a given, subject only to the very high “exceptional circumstances” discretion in s 9A(2).

[43]              In fairness to Judge McNaughton, I have been provided with more information on the immigration consequences than he had. For example, the Judge was not made aware (at the June 2020 hearing) of the immigration difficulties that Mr Smith had already encountered in 2019.

[44]              Thirdly, Mr Smith says that the conviction has, and will continue to have, consequences for his employment prospects. Mr Smith has 30 years’ experience as a plumber. He has been unable to work as a plumber since a severe back injury in 2008. He has been receiving accident compensation benefits since 2009. He deposes that he has found it very difficult to find employment as a result of his conviction. He instances an attempt to obtain employment at a local service station. The manager advised that he was unable to hire Mr Smith because of his conviction.

[45]              Ms Al-Janabi criticises the lack of any documentary evidence corroborating Mr Smith’s account of his difficulties in finding employment. But it can be difficult for someone who has been out of the workforce to provide evidence of the direct consequences of a conviction on their employment prospects.24 It is clear that the conviction will place him at a disadvantage as against those without a conviction. Given Mr Smith’s back injury, and consequent inability to work in the trade in which he is qualified and experienced, he is likely to be applying for fairly low-qualified jobs

23 Ho v R [2016] NZCA 229 at [15], citing Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].

24 Parkinson v Police [2015] NZHC 3272 at [38]. See also R v Taulapapa [2018] NZCA 414 at [46](c): “Evidence of the attitude of employers may not be reasonably available, and in that case the court will do the best it can on the evidence available. Judicial notice of facts may be taken where appropriate.”

(as his application for a job at the service station shows). There is a serious risk that in that context Mr Smith’s conviction will lead to any job application being immediately rejected without further inquiry.25

Would these consequences be out of all proportion to the gravity of the offence?

[46]              The conviction, having stood for two years, has already had serious immigration and employment consequences. It is likely to continue to do so. In my judgment those consequences are out of all proportion to the low gravity of the offending. Mr Smith was in his early fifties, with an unblemished record, when the offending occurred. It was an aggressive act, but was out of character, and was one- off. Mr Smith has taken steps since then to address his offending.

[47]              For those reasons, in my judgment Mr Smith should be granted a discharge without conviction under s 106.

Result

[48]I allow Mr Smith’s appeal.

[49]              Mr Smith’s conviction for male assaults female is quashed. Mr Smith is discharged without conviction on that charge.

Campbell J

25     Brown v R [2012] NZCA 197 at [31]–[32].