Sterjov v Police

[2015] NZHC 3103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-326 [2015] NZHC 3103

BETWEEN

SASE STERJOV

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 December 2015
Appearances:	P T Eastwood for the Appellant M Hammer for the Respondent
Judgment:	7 December 2015

ORAL JUDGMENT OF MUIR J

Counsel:

P T Eastwood, Barrister, Auckland

Solicitors:

M Hammer, Meredith Connell, Auckland

SASE STERJOV v NEW ZEALAND POLICE [2015] NZHC 3103 [7 December 2015]

[1]      Mr Sterjov was convicted on 9 October 2015 of one charge of assault with intent to injure.1   He was sentenced to 60 hours’ community work.  He now appeals his conviction on the basis that the District Court Judge, Judge Paul, erred in his assessment of the gravity of the offending, and failed to give proper consideration to the economic consequences of a conviction and the victim’s views all of which the appellant says should have resulted in a discharge under s 106 of the Sentencing Act

2002.

The offending

[2]      The offending arose out of an assault on Mr Sterjov’s wife.  The extent of the assault was initially unclear, and the matter went to a disputed facts hearing before Judge Taumaunu.  Mr Sterjov was sentenced on the basis of the facts as found at the disputed facts hearing and as reflected in an amended statement of facts.

[3]      The facts as recorded in that amended statement are as follows.  Mr Sterjov is a restaurateur.  On the evening in question his wife was working at their restaurant. There  was  an  argument  between  them  while  they  were  both  in  the  kitchen, apparently relating to a mistake she had either with a pizza order or in preparing a pizza.   Mr Sterjov pushed her outside holding her hair, into an alley behind the restaurant.  He hit and kicked her.  He dragged her behind a parked car, where he continued the assault.  A member of the public who observed this protested loudly that Mr Sterjov should desist.  Mr Sterjov stopped the assault while remonstrating with the member of the public about minding his own business.  He then went back inside the restaurant.  About 10 seconds later he emerged from the restaurant again and continued the assault.   On this occasion he is described as karate kicking his wife in the body causing her to fall to the ground.  He kicked and punched her at least once in the head.  Throughout the whole incident, from inception to conclusion, he kicked and punched her at least 10 times.  He then threw the car keys at her and she drove off.

[4]      When approached by the Police the victim said that there had been no assault. She said there had been a fight but it was her fault.  Mr Sterjov said it was just an

1      Crimes Act 1961, s 193. The maximum sentence is three years’ imprisonment.

argument and he denied hitting and kicking his wife.  Mr Sterjov is aged 28 and has no previous convictions.

The sentence

[5]      Judge Paul noted that premeditation was shown by Mr Sterjov pulling his wife behind the car to hide her from view and by returning to continue the assault. He also considered that attacking her head showed a clear intent to injure.   The number of blows and the fact that it was a case of male assaulting a female meant it was, in his assessment, serious offending.   The Judge was also concerned that, despite the disputed facts hearing, Mr Sterjov continued to try to minimise the level of the attack in terms of the number and/or duration of blows to his wife’s head.  The Judge acknowledged, however, that to his credit Mr Sterjov had done a number of things after the attack in order to put matters right.  He had completed three sessions of marriage counselling with his wife, completed a full Stopping Violence Programme, had undertaken voluntary community work and had provided 120 free pizzas  to  the  Methodist  Mission.    The  Judge  considered  that  this  balanced  the severity of the offending to some extent, but that even taking these actions into account, the offending was still at an upper level for its type.

[6]      I am told that Mr Sterjov’s voluntary assistance with the Methodist Mission

has continued after the sentencing.

[7]      Judge Paul considered the arguments in relation to Mr Sterjov’s application for discharge without conviction.   Although there was initially an issue as to Mr Sterjov’s ability to travel back to his home country, it was not actively pursued at the hearing.   The primary concern was expressed to be his ability to hold a liquor licence, necessary in his business as a restaurateur.

[8]      The focus of Judge Paul’s reasoning is on the holding of a liquor licence.  I am told today, and there is support in a supplementary affidavit (to which I will return later in this judgment), that the issue is not at this stage his capacity to hold a liquor licence.  That licence is held by a company of which he is a director and is for a two or three year period from the date of its grant in 2014.  There is no current application by the Police to suspend or remove that licence.  The more immediate

issue, says Mr Eastwood, is a current application by Mr Sterjov for a bar manager’s certificate.  Based on the charges which have resulted in Mr Sterjov’s conviction and sentence the Police have opposed that application.  The outcome of the application remains on hold pending this appeal.

[9]      Although the s 106 application was advanced before Judge Paul on the basis that Mr Stewart was the only person employed at the restaurant who could hold the necessary liquor licence, Judge Paul was sceptical of that submission.  He considered that it was likely that arrangements could be made for Mr Sterjov’s wife or an employee to hold the licence: and even if that was not possible, the potential consequences of a loss of licence were not, in his assessment, out of proportion to the offending.  That reasoning has similar application to the bar manager’s certificate issue which I have identified as being the key and proximate concern at this stage.

[10]     The Judge noted the request of Mr Sterjov’s  wife that no  conviction  be entered against her husband.   He said that was not surprising considering her economic success was linked to that of her husband but noted that domestic violence at this level was serious.  In the result, he held that Mr Sterjov did not meet the test for a discharge without conviction in that the consequences were not out of all proportion to the offending.   He entered a conviction and imposed the sentence previously referred to in accordance with the Probation Services recommendation.

Appellant’s submissions

[11]     Mr Eastwood argues, firstly, that the facts do not support some of Judge Paul’s conclusions, particularly those as  to the severity of the violence and  the premeditation;  secondly, that the consequences in terms either of a potential loss of liquor licence at the time of renewal or, as it is now put, the inability of Mr Sterjov to obtain  a  bar  manager’s  certificate  were  wrongly  assessed;  and  thirdly,  that insufficient weight was given to the desire of the appellant’s wife for him not to be convicted.

[12]     As to the assessment of the severity of the offending, the appellant says that Judge Paul’s conclusions as to premeditation, based on pushing his wife outside, concealing the assault behind a motor vehicle and returning to further assault his

wife after a short period inside the restaurant were unjustified.  Counsel’s argument on this point presupposes that “premeditation” necessitates a plan by Mr Sterjov, while  working  in  the  kitchen,  to  assault  his  wife later  in  some  particular  way. Counsel  says  that  by  contrast  this  is  an  act  of continuous  offending  where the appellant simply lost control.

[13]     Counsel appears to dispute the severity of the offending, and says it would be wrong to place great weight on the fact that the appellant was reluctant to accept he had been kicking his wife in the head, because that was out of character for him and “…that  sort  of  conduct  would  result  in  quite  clear  injuries  which  was  not  the situation in this case”.

[14]     The position in relation to injuries is that there were apparently no visible injuries but the refusal of the appellant’s wife to make a complaint or to seek medical attention and the absence of a medical report does limit the potential impact of that submission.

Respondent submissions

[15]     The Crown submits that Judge Paul accurately assessed the facts; that a conviction is not an absolute bar to obtaining a liquor licence, or, as the case is now put, a bar manager’s certificate and that licensing bodies are the appropriate ones to determine Mr Sterjov’s suitability in that respect; that there is no specific evidence as to the likely impact of a conviction on that assessment, or of the financial impact of a negative decision on the business.   Further the Crown submits that the discharge should not be granted where the consequences are unclear and there is insufficient evidence to support the appellant’s assertions as to the consequences.

[16]     So in summary it says that Mr Sterjov has not shown that the consequences will be out of all proportion to the offending.

Approach on appeal

[17]     This is a first appeal against conviction and sentence under ss 229 and 244 of the Criminal Procedure Act 2011.   The statutory threshold at s 232 for an appeal

against conviction is that I must be satisfied that the Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred or, in any case, a miscarriage of justice has occurred for any reason.

[18]     Section 106 of the Sentencing Act 2002  grants the court a discretion  to discharge an offender without conviction.   This discretion is subject to the test in s 107 being satisfied. That test provides:

107      Guidance for discharge without conviction

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

[19]     When the s 107 test is met, the court then has a discretionary power to discharge under s 106.  However, when the test is satisfied, this will usually result in a discharge despite the existence of the discretion.

[20]     An appeal against a refusal to discharge is by way of rehearing with the court hearing the appeal making a new assessment in accordance with its own opinion.2

The  Court  of Appeal  in  R  v  Hughes  concluded  that  as  the  s 107  test  was  not discretionary, an appeal against the court’s decision on this matter was not an appeal against discretion.3   An appeal against discretion would only arise if the court held that s 107 was satisfied but nonetheless chose not to discharge the offender.

[21]     The approach to be followed in applying the s 107 test is set out in Z v R

where Arnold J held:4

...[w]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge...

2      R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].

3 At [11].

4      Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]

[22]     This approach requires me first to determine the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offending and also to those factors which apply to the offender.  I must then decide the direct and indirect consequences of conviction and determine whether they are out of all proportion with the offending.

Analysis

Dispute as to facts

[23]     I do not accept Mr Eastwood’s submission that premeditation necessitates a plan thought out some considerable time before the occurrence of a crime.  There are degrees of premeditation, relating not only to the duration of orchestration, but also whether actions were taken to facilitate the offending.  See for example in R v Taueki where it was said:5

For example premeditation is identified as a factor, but it may vary in particular cases from full-scale planning and orchestration of a concerted vicious attack to a period of a few minutes or so after a perceived slight during which the offender decides to take revenge.

[…]

Premeditation: The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence.

[24]     I agree with Judge Paul that the decision to pull Mrs Sterjova behind the car, and to return and continue to assault her, indicates that the violence was not purely impulsive and that rather some conscious choices were involved.   In that sense, it was premeditated offending although at the lower end of any such scale.  It is in my assessment quite different, for example, to a single impulsive blow.

[25]     Counsel’s arguments as to the severity of injury and Mr Sterjov’s failure to

accept his actions are, in my view, inconsistent with Judge Taumanu’s findings as reflected in the amended statement of facts.  I disregard them accordingly.

5      R v Taueki [2005] 3 NZLR 372 (CA) at [30]-[31].

[26]     I conclude therefore that Judge Paul accurately assessed the severity of the offending.  He then considered the measures Mr Sterjov had taken to make amends, and concluded that the offending was still, on balance, serious, and that he lacked insight into the seriousness of it.  That was a conclusion he was entitled to make and one with which I agree.

Liquor licencing and bar manager’s certificate

[27]     This raises issues similar, although not identical to, those which frequently arise in the context of employment.  It is not unusual for people requesting discharge without conviction to do so on the basis that it will make it harder for them to find employment or indeed in some cases that it will result in termination of existing employment.

[28]     In Amstad v Police, Whata J held that the consequence that Mr Amstad would be permanently barred from fulfilling his aspirations of joining the army was out of all proportion to the relatively serious offending in that case (including the taking of a motor vehicle and drunk driving).6    Similarly, in R v Tahitahi, Allan J considered that  the difficulty that  Ms Tahitahi  would  have in  finding work  was  out  of all proportion to her offending,7  given particularly the fact that she had been on a benefit seeking work for twelve months.8    In that case the offending involved throwing a rock at her ex-partner’s car window which was broken in the process as he drove out of the driveway.9   Allan J accepted that the risk of difficulty securing employment was a general consequence of a criminal conviction, but held that it was still relevant to his s 106 assessment.  In doing so he relied on the decision in Nash v

Police where Mallon J observed that general consequences, including effects on employment, insurance and immigration, could all be weighed in the balance.10

[29]     In Liang v Police, Hammond J pointed out:11

6      Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011 at [28].

7      R v Tahitahi [2012] NZHC 663 at [31].

8 At [23].

9 At [4].

10     Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009 at [19].

11     Liang v Police HC Wellington AP38/02, 16 April 2003 at [17].

Whether a conviction will form an occupational barrier is a relevant consideration   in   determining   whether   to   grant   a   discharge   without conviction. Where the conviction will result in an absolute bar to the occupation, that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is best able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor - it is merely a factor to be considered in the balancing exercise.

[30]     Essentially the same factors apply here.  The liquor licensing authorities, like the registration bodies of various professions, determine whether a person is fit to hold a liquor licence or bar manager’s certificate.   Mr Sterjov has provided little evidence that his conviction will necessarily lead to an inability to renew a liquor licence, or obtain such a certificate.  Denial of such licences and certificates does not follow automatically from conviction,12  but involves a considered assessment of all

the circumstances, in this case by the Auckland District Licensing Committee.13

There  are,  moreover,  appeal  rights  to  the  Alcohol  and  Regulatory  Licensing Authority and a further appeal available on points of law to the High Court and, with leave, the Court of Appeal.14   All that points towards allowing the relevant licensing authorities to determine the issue, rather than effectively usurping their  jurisdiction by way of a discharge.   No doubt they will take fully into account Mr Sterjov’s commitment to reform through attendance at relevant programmes, his voluntary community work and evident remorse.

[31]     It appears, too, that the person holding the bar manager’s certificate need not be Mr Sterjov, but can be another responsible person on the premises.15   Alternative arrangements may have to be made, and may be inconvenient, but that tends to diminish the force of this objection.

[32]     Belatedly  Mr  Sterjov  has  filed  an  affidavit  in  which  he  says  that  the restaurant is insufficiently profitable to be able to hire a bar manager at an expected

12     See Graves v Police HC Rotorua CRI-2010-463-57, 28 February 2011, particularly at [25].

Justice Lang adopted a statement of principle to the same effect as the quote from Liang above, from Roberts v Police (1989) 5 CRNZ 34 (HC).

13     See for example Sale and Supply of Alcohol Act 2012, ss 105, 131, 222, 227.

14     Sections 152-168.

15     This is accepted in his own submissions; see at [7]-[8].

salary of $60 - $70,000 per year, that the sale of liquor is essential to its profitability and that his wife is unable to hold the relevant licences and certificates (if they are ultimately denied to him) because, he says, “the reality is I run the business and she is occupied with our children”.

[33]     I am not satisfied that this evidence is appropriately admitted.  The relevant test is set out by the Privy Council in Lundy v R in the following terms:16

The Board considers the proper basis on which admission of fresh evidence should be decided is by application of a sequential series of tests.   If the evidence is not credible it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence.  If the evidence is both credible and fresh, it should generally be admitted unless the Court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction.   If the evidence is credible but not fresh, the Court should assess its strength and its potential impact on the safety of the conviction.  If it considers that there is a risk of a miscarriage of justice if the evidence  is  excluded,  it  should  be  admitted,  notwithstanding  that  the evidence is not fresh.

[34]     It will be rare that evidence which was known to an appellant or to his or her counsel before a trial will be admitted.  An exception to this is if the evidence was not heard at trial as a consequence of serious error by trial counsel.   The same principle applies to evidence not called in relation to sentencing issues.17

[35]     In the present case the evidence is clearly not fresh and parts of it, as for example the alleged inability of the business to support a manager, are uncorroborated.   In general it is broadly the same as that in the appellant’s first affidavit.  Moreover insofar as the affidavit suggests the appellant’s wife is occupied with the children and could not therefore hold a manager’s license, I note that:

(a)       clearly Mrs Sterjova has some existing role in the business.  She was working there on the night of the offending; and

(b)the appellant deposes that there are existing arrangements in place for the children to be looked after while she is working.

16     Lundy v R [2013] UKPC 28, [2014] 2 NZLR at [120].

17     R v Xie [2007] NZCA 571.

[36]     I am concerned that the real reason for Mr Sterjov’s opposition to his wife holding the relevant bar manager’s certificate (if that was ultimately necessary), may in fact be the readjustment that this would necessitate in terms of the dynamics within the relationship and business.

[37]     I decline therefore to admit the new affidavit while noting that its contents do not in any event materially assist me.

[38]     In the result there is no evidence before this Court as to why alternative arrangements might not be possible in the event the appellant is not granted a bar manager’s certificate.   The cases establish a reluctance to grant discharges where there is a lack of clear evidence to support alleged consequences of conviction.18

[39]     Repeating the words of s 107, the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  Insofar as those alleged consequences relate to an inability to conduct the business if a conviction stands, I am not satisfied that that is the case both because the outcome of any licensing or certification issue is at this stage uncertain and, on a worst case basis, alternatives are available.

Wishes of the victim

[40]     It is regrettably common in domestic violence cases for victims to ask for leniency in respect of their abusers.  It is well-established that this desire does not diminish the Courts’ responsibility to protect the public interest by holding offenders to account for domestic violence, particularly as a victim’s reluctance is often a result of mental conditioning resulting from the very abuse to which they have been exposed.19   I refer in this respect to the observations of Gendall J in Vaipo v Police. That case concerned the practices of specialist family violence courts, and the issue of whether discharges should be granted because they are common in those courts as

part of a therapeutic approach.  His Honour said:20

18     M v Police [2013] NZHC 1101; Simmonds v Police [2014] NZHC 2488.

19     See Taueki, above n 5, at [33]; R v W (CA352/05) at [23]; R v Singh [2015] NZHC 1641 at [17].

20     Vaipo v Police HC Auckland CRI-2011-404-141, 29 July 2011, at [22].

It will be that in some cases involving “family violence” a proper application of  ss  106  and  107  and  the  principles  contained  in  the  Sentencing Act mandate a discharge without conviction. But there cannot be (and there is not) any policy or “usual” outcome in those District Courts which operate in a specialised way to hear and determine offences involving family violence. They  must  still  apply  the  law  as  enacted  by  Parliament  and  bring  an individual and separate judgment to each sentencing exercise that is appropriate to the particular circumstances of each offender and offence.

[41]     I agree with Judge Paul that in this case, the nature of the offending is such that the outcome should not be materially influenced by the victim’s wishes, unarguably loyal though she has been to the appellant throughout this exercise.

Result

[42]     Having considered all of the aggravating and mitigating factors relating to the offending and the offender I am satisfied that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence.   I conclude therefore that the learned District Court Judge was correct in declining to grant a discharge without conviction under s 106.

[43]     I dismiss the appeal.

Muir J