T v Police
[2012] NZHC 1426
•22 June 2012
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN [OR ANY IDENTIFIED PARTS OF THE EVIDENCE].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-134 [2012] NZHC 1426
BETWEEN T Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 June 2012
Counsel: J Eichelbaum for Appellant
P Hamlin for Respondent
Judgment: 22 June 2012
JUDGMENT OF POTTER J
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 22 June 2012.
Solicitors: Meredith Connell, Auckland – [email protected]
Chen & Palmer, Wellington – [email protected]
Copy to: J Eichelbaum, Auckland – [email protected]
T V NEW ZEALAND POLICE HC AK CRI-2012-404-134 [22 June 2012]
Introduction
[1] The appellant, T, entered a guilty plea in the District Court to a single charge under s 194(a) of the Crimes Act 1961 of assaulting his 11 year old son. The offence carries a maximum penalty of two years imprisonment.
[2] On 14 March 2012 Judge Fitzgerald declined an application to discharge the appellant without conviction under s 106 of the Sentencing Act 2002 (the Act).1 He convicted the appellant and ordered him to come up for sentence if called upon within six months.
[3] The appellant now appeals against his conviction and sentence and seeks a discharge without conviction.
The offending
[4] The summary of facts upon which the appellant entered his guilty plea states that his 11 year old son had been fighting with his sister. This was an ongoing problem which had been causing tension in the household. The appellant decided that “enough was enough”. He removed his belt and struck his son around the legs once and then on his shoulders once with the leather tongue section of the belt.
[5] His son received minor bruising to his shoulder and redness and bruising to his left lower leg. He was referred to a doctor on the day following the incident. The doctor’s report records mild superficial bruises in the right scapular area, not tender. Also lower left leg, red mark and superficial bruises, not tender. The doctor further noted that the child had a normal demeanour and was not in pain and did not require analgesia. A subsequent report by the doctor dated 15 December 2011 confirms that the child did not require any medical treatment at the time of the
original consultation.
1 New Zealand Police v T DC Auckland CRI-2011-004-020428, 14 March 2012.
District Court judgment
[6] After referring to the factual background, the Judge noted that the appellant sought a discharge without conviction and that the police were not opposed to that application. He also referred to an indication given earlier, that that outcome (discharge without conviction) was available for consideration upon the appellant completing a programme of counselling and committing no further offences. He noted that the appellant had satisfied the requirements in terms of completing the programme and not reoffending. He said, however, that such an outcome was on the basis that the legal test for that outcome was met.
[7] The Judge then referred to the test to be applied: whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. He noted that satisfying the test places no onus upon the offender.
[8] The Judge then turned to consider the three steps of the test. As to the gravity of the offence, he said the charge itself is serious and that the maximum penalty reflects that. He said the assault was inappropriate force used for discipline – the use of a belt across the legs and back of the appellant’s son - and that the force left marks on his son for which “some unspecified medical attention was given”. He referred to the breach of trust involved in the offending because the child was reliant upon the appellant to appropriately respond to the situation that gave rise to the offending. He said those were serious features of the offending.
[9] The Judge then considered the direct and indirect consequences of a conviction. He identified these as follows:
The appellant has a number of speaking engagements in the community and
coaching responsibilities. These occur both in New Zealand and overseas.
Aconsequence for the appellant is said to be embarrassment at having to declare a conviction at customs and delays that might arise.
He may be refused entry into some countries, for example Canada and the
United States.
He may need to declare the conviction to boards and charities on which he
serves.
Hemay be reluctant to accept some speaking engagements and may have to reconsider positions that he currently holds in some charitable and
community organisations.
[10] The Judge then carried out the s 107 balancing exercise. He said:2
Returning to the test that I must apply, the embarrassment of customs checks, in my view, would not be a consequence that is out of all proportion to the gravity of the offending. The issue of attending speaking or coaching engagements here or overseas is more difficult. From what has been provided to me today, it does not look as if it was a situation which a conviction would have the effect of you losing employment. That is often a very significant fact in tipping the balance in a situation such as this. It seems there would be a choice for you to make as to what work or engagements you would accept or seek here. As well as that, when and how often travel to Canada or the USA would be is not known, and it seems somewhat speculative as to whether the entry would be refused as opposed to made difficult.
[11] The Judge concluded he was not satisfied on the basis of the evidence and information provided, that the consequences identified would be out of all proportion to the gravity of the offending. He found the “high threshold” test was not met.
[12] He considered, in relation to the sentence to be imposed, matters which he said went strongly to mitigation: no previous convictions; significant contribution to the community; supportive references; and that the appellant had taken ownership of the issues that gave rise to the offending and had addressed them in a responsible way. The Judge nevertheless considered that something was required to hold the appellant accountable and to denounce his conduct “given the concerns in this country about domestic violence – and that includes violence towards children – that
is necessary”.3
2 At [12].
3 At [15].
[13] Accordingly he convicted the appellant of the charge and ordered him to come up for sentence if called upon within six months.
Grounds of appeal
[14] The appeal against the District Court decision refusing to discharge the appellant without conviction focused on two aspects of the Judge’s decision:
(a) That he erred in overrating the seriousness of the offending; and
(b)That he erred in underrating the consequences for the appellant of a conviction.
[15] Mr Eichelbaum was critical of the Judge for departing from the “indication” given in November 2011 that a discharge under s 106 would be available, and for not hearing oral submissions from counsel at the sentencing hearing. He also submitted that the decision is inconsistent with other relevant decisions, particularly H v R.4
Sections 106 and 107
[16] Section 106 of the Act confers on the Court a discretion to discharge an offender without conviction unless any enactment applicable to the offence requires the imposition of a minimum sentence. A discharge under s 106 is deemed to be an acquittal.5
[17] Section 107 provides:
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.
[18] The Court of Appeal stated in R v Hughes:6
4 H v R [2012] NZCA 198.
5 Section 106(2).
6 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [8].
Although the heading in s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.
[19] In Blythe v R7 the Court of Appeal clarified that only the aggravating and mitigating factors of the offending as set out in s 9 of the Act are relevant in determining the gravity of the offending.8 The remaining purposes and principles of sentencing are relevant in the exercise of the Court’s residual discretion under s 106. That of course arises only after the Court has determined that the disproportionality test in s 107 has been met.9
[20] The judgment in Hughes also confirms there is no onus on the offender to establish that the test has been met. In terms of s 107 the requirement is that “the Court is satisfied” it has been met. Section 107 imports no onus of proof. The requirement is simply for the Court to be satisfied that the disproportionality test has been met.
Approach on appeal
[21] The Court of Appeal also clarified in Hughes that whether the Court is satisfied the s 107 threshold has been met is a matter requiring judicial assessment which can be subject to appeal on normal appellate principles: R v Rajamani.10
[22] Accordingly, in terms of Austin, Nichols & Co Inc v Stichting Lodestar:11
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
7 Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.
8 At [11].
9 At [12].
10 R v Rajamani [2008] NZSC 68; 1 NZLR 723 at [5].
11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].
In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[23] Thus, I turn to consider the test under s 107, and to reach my own conclusion as to whether it is satisfied in the circumstances of this case. If so, and only if so, the Court may exercise its residual discretion under s 106 to decide whether a discharge without conviction should be granted.
Gravity of the offence
[24] In considering the gravity of the offence the Judge characterised the charge as “serious”. He then considered features of the offending which he identified as serious. There can be no doubt that the use of physical violence, particularly involving the use of a weapon (the appellant’s belt in this case), for disciplinary purposes is serious offending. But as Simon France J observed in H v Police:12
… some assessment of comparative gravity is required.
[25] In Alshamsi v Police, Asher J said:13
Section 107 refers to the gravity of the “offence”, and not the offending. However, offences should not be considered in a vacuum. It is necessary to look at the offending itself.
[26] Counsel for the appellant submitted that the District Court decision is inconsistent with the recent decision in H v R14 in which the Court of Appeal allowed an appeal against the conviction of H and entered a discharge without conviction. H and G pleaded guilty to a charge under s 194(a) of assaulting H’s son. On appeal, the High Court had discharged H’s partner G without conviction but had considered the fact that H had previously used a wooden spoon in the discipline of her 8 year old child, made her offending more grave than that of G. G, at the request of H, had hit the child on the bottom with a belt twice on a single occasion. The assault occurred after the child had been involved in an incident of a sexual nature with a
younger female cousin. H and G discussed the situation and believed the child
12 H v Police HC Nelson CRI-2011-442-29, 17 August 2011 at [19].
13 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [19].
14 H v R [2012] NZCA 198.
needed to be disciplined by the use of the belt. The child had previously been diagnosed as suffering from Attention Deficit Hyperactivity Disorder with Asperger’s Syndrome as an aspect of the disorder. This had given rise to a number of behavioural difficulties over a period of years. H had sought assistance a number of times from psychologists and paediatricians with regard to her son’s behaviour and various forms of non-physical discipline had been used in the past. There had been a prior episode in which the child had sexual contact with the same female cousin. The second occasion led H to request G to use the belt, not in anger but as a considered measure as a last resort. The use of the belt was over clothing (pyjamas).
[27] On appeal by H (leave having been granted), the Court of Appeal expressed considerable sympathy for H and while not condoning the use of physical violence for disciplinary purposes, considered the actions taken by G at H’s request were “at the lower end of the scale”.15 The Court considered that the reliance placed by the High Court on the previous incidents with the spoon as the sole basis to differentiate H’s position from that of G, was incorrect when H was not charged with the previous incidents and scant detail was provided as to their circumstances.
[28] I agree with the Crown that the facts in H v R do not support Mr Eichelbaum’s submissions that seek to place that case on a parallel with the circumstances of this offending. There were singular circumstances surrounding the offending in that case which distinguish it from the offending in this case and, as the Court of Appeal emphasised in R v Hughes, the “test is the test”.16 It requires a fact specific inquiry in the particular case.
[29] I accept that it was open to the Judge to categorise the offending in this case as serious, but while serious, the gravity of the offending was at the lower end of the scale of seriousness. A belt was used but on a single occasion involving two strikes to the child. No physical harm was inflicted. The Judge may have misinterpreted the doctor’s report when he stated that “some unspecified medical attention was given”. Clearly medical attention was not required.
Direct and indirect consequences of a conviction
[30] I approach the assessment of the nature and seriousness of the direct and indirect consequences of a conviction not on the basis that they would inevitably or even probably occur, but rather that there is a real and appreciable risk that such consequences would occur: Iosefa v Police17 and Alshamsi v Police.18
[31] The Judge identified that the situation of the appellant is not such that a conviction would have the effect of his losing employment. The appellant is a funeral director. The statement he provided to the Court dated 1 March 2012 is on the letterhead of the company in which he is engaged in his primary employment. No suggestion has been made in the written or oral submissions of counsel for the appellant that a conviction would have consequences in relation to this employment.
[32] Rather, the consequences of a conviction are said to arise from ancillary opportunities to earn income from speaking and coaching engagements and the impediments and embarrassments that could occur when entry is sought to other jurisdictions for such engagements, particularly Canada and the United States. Further, the appellant has concerns that a conviction would tarnish his reputation in the community to which he has given extensive and outstanding service, and impact upon his charitable and community work.
[33] In considering the direct and indirect consequences of a conviction for an offender, loss of employment is often a very significant factor for the Court in applying the test under s 107. This was the situation in H v R where employment as a teacher was at stake for the appellant. But s 107 does not limit direct and indirect consequences of a conviction to employment and financial consequences. It is entirely appropriate that the Court should take into account other direct and indirect consequences of a conviction including those for a person such as the appellant who has a recognised and distinguished record of community service.
[34] In this context Mr Eichelbaum referred to three cases: Han v Police,19
Tahitahi v Police20 and Nash v Police,21 two of which, Han and Tahitahi, have been decided since the District Court decision in this case.
[35] In Han v Police, the appellant was involved in an argument with the acting shift manager of the Queenstown casino during the course of which he threatened the manager and pushed her in the chest. This was described as “low level offending”. He pleaded guilty to common assault and disorderly behaviour.
[36] The Court held there were a number of consequences which outweighed the gravity of the offending. Firstly, there were employment issues in that the appellant’s business might be in jeopardy because a conviction could impact upon his ability to get the necessary liquor licences and certifications. Secondly, there was the issue of overseas travel. The appellant, of Chinese origin, now needed a visa to return home and there was talk of he and his wife moving to Japan. A conviction could be detrimental to visa applications. Thirdly, Chisholm J said:22
I accept that the general implications of a conviction (embarrassment etc) are a relevant consideration and apply here.
[37] In Tahitahi v Police the appellant pleaded guilty to two charges of wilful damage and common assault arising from a domestic dispute. The appellant’s ex- partner and an associate were in a car and the appellant threw a mirror at the car and broke a car window with a rock. Nobody was injured and this was described as low level offending.
[38] The consequences related to the appellant’s ability to find employment. She was young, with no qualifications and on a benefit but had been actively seeking employment. The Court accepted that, in a difficult job market, a conviction would make it even harder to find employment. It was held that the consequences of a
conviction outweighed the gravity of the offending and the appellant was discharged.
19 Han v Police [2012] NZHC 791.
20 Tahitahi v Police [2012] NZHC 663.
21 Nash v Police HC Wellington CRI-2009-485-7, 22 May 2009.
[39] In the earlier case of Nash v Police the appellant was convicted of a minor domestic assault after he pulled his partner’s hair and caused her to fall over, and searched her pockets in an aggressive manner. The appellant and his partner (who supported a discharge) underwent relationship counselling sessions.
[40] In terms of the consequences, there was little evidence about damage to employment or other prospects. However, Mallon J accepted that general consequences follow from a conviction. For example, people are asked to disclose convictions for a variety of matters but for those who are remorseful there can be a loss of pride and self-esteem or at least embarrassment at having to answer questions honestly. As such, the consequences of a conviction were out of proportion to the offending and so the appellant was discharged.
[41] It needs to be immediately noted that in each of these three cases the offending was categorised as “low level” and the balancing exercise the Judge in each case carried out in assessing whether the direct and indirect consequences of a conviction were disproportionate to the gravity of the offending, appropriately and necessarily took into account that the offending was at a low level.
[42] Nevertheless I accept that implications of embarrassment, loss of pride and self esteem are general consequences which the Court has been prepared in appropriate circumstances to recognise in the overall assessment of direct and indirect consequences of a conviction.
Are the direct and indirect consequences of conviction out of all proportion to the gravity of the offence?
[43] I turn to the balancing exercise which is necessary in applying the third step of the test under s 107. The Judge referred to the test as a “high threshold”.23 That description is unhelpful as the Court of Appeal clearly stated in R v Hughes.24
[44] As to the first step, I have assessed the offending as serious although at the lower end of the scale of seriousness. As to direct and indirect consequences, while
23 At [14].
24 R v Hughes at [23].
there is no evidence that the primary employment of the appellant would be placed at risk by a conviction, I consider there are direct and indirect consequences of a general nature which present a real risk that his ability to earn income from speaking and coaching engagements, particularly overseas, could be affected. Additionally, there is a real and appreciable risk that his continuing contribution to the community would be affected by the consequences of a conviction.
[45] Taking into account all the above factors, though the matter is finely balanced, my assessment is that the direct and indirect consequences of a conviction on the charge under s 194(a) of the Crimes Act would be out of all proportion to the gravity of that offence as I have assessed it.
[46] I am satisfied that the test under s 107 of the Act is met in all the circumstances of this case.
Application of s 106
[47] I therefore turn to the exercise of the discretion to discharge without conviction under s 106.
[48] In this context, the Crown submitted that in circumstances where the appellant has held himself up as a spokesperson against family violence (referred to in at least one of the testimonials provided to the sentencing Judge on behalf of the appellant), it is in the interests of the community to be aware of this conviction. At the same time, however, the Crown drew attention to the non-publication order made for the benefit of the victim which will mean that the community at large will not be aware of the conviction. In those circumstances this factor cannot weigh significantly in the balance.
[49] Taking into account the appellant’s guilty plea, his remorse, his clean record and the steps that he has taken to address the underlying causes of this offending, I consider it appropriate to exercise the discretion under s 106 to discharge the appellant without conviction.
Processes in the District Court
[50] Although Mr Eichelbaum in submissions sought to place significance on the indication given by the District Court Judge that a s 106 discharge would be available upon successful completion of a programme of counselling and no further offending, I consider Judge Fitzgerald correctly stated that such an outcome depended on the legal test being met. The ultimate judicial assessment must be made on the basis of all the information and material available to the Court and cannot be dictated or constrained by such a preliminary indication. It was perhaps unfortunate against that background that the Judge indicated to Mr Eichelbaum that he did not need to hear oral submissions on sentencing but would rely on the written submissions. However, I confirm that I have placed no weight on either of these aspects in reaching my decision. They are not relevant to the assessment the Court must make in applying ss 106 and 107 of the Act.
Result
[51] The appeal is allowed. The appellant’s conviction for assault is quashed.
[52] I order under s 140 of the Criminal Justice Act 1985 that the name or identifying particulars of the appellant, and the victim must not be published.
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