Taavili v Police
[2012] NZHC 2323
•11 September 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-219 [2012] NZHC 2323
BETWEEN AILEPATA TAAVILI Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 September 2012
Counsel: V Reid for Appellant
W N Fotherby for Respondent
Judgment: 11 September 2012
JUDGMENT OF KATZ 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 11 September 2012.
Solicitors: Public Defence Service, Auckland – [email protected]
Crown Solicitor, Auckland – [email protected]
TAAVILI V NEW ZEALAND POLICE HC AK CRI-2012-404-219 [11 September 2012]
Introduction
[1] The appellant, Ms Taavili, is a 37 year old solo mother of three. She is the main breadwinner for her family (including her parents). Ms Taavili is employed as an administrator and has been studying towards a Diploma in Business Administration, in order to improve her future career prospects. She is actively involved with her church. Ms Taavili has no previous convictions. However, in November 2010, Ms Taavili made a grave error of judgment. She became involved in a serious family incident during which Ms Taavili’s cousin was assaulted.
[2] Although her own role in the incident was relatively minor, Ms Taavili now has a conviction for common assault. She is concerned that such a conviction will impact on her future career prospects. Ms Taavili accordingly appeals to this Court from a decision of the District Court not to discharge her without conviction.
Facts
[3] Ms Taavili’s cousin (then aged 19 or 20) had recently upset her extended family by moving out of the family home. On 26 November 2010, the victim was waiting for her sister on the front lawn of the property. A group came out of the house and dragged her along concrete ground for about 20 metres into the house. Her knees scraped on the ground through her clothing and her left elbow hit the ground. She was crying and asking her family to let her go.
[4] Ms Taavili came out of the house after the assault and dragging had occurred. She told the victim to shut up and briefly placed her hand over her mouth. The reason that Ms Taavili gave for this was that her cousin was “screaming and crying and making a lot of noise”. As it was very late, Ms Taavili’s evidence was that she was concerned the noise would wake the neighbours. When Ms Taavili’s cousin was inside the house, Ms Tiotala, the victim’s aunt, threw a jandal at her upper chest.
[5] The various offenders’ roles in this incident were as follows:
(a) Ms Reupena is the victim’s sister. She persuaded the victim to go to the address. She grabbed the victim’s hair, forced her to the ground, and participated in the dragging.
(b)Ms Dateline Taavili is the victim’s cousin. She slapped the victim on the side of her face and participated in the dragging.
(c) Ms Tiotala is the victim’s aunt. She came out of the house and watched the incident and later threw a jandal at the victim’s upper chest.
(d) Mr Taavili is the victim’s uncle. He grabbed the victim’s arm and
participated in the dragging.
[6] Ms Taavili and her four co-offenders were originally charged with being party to injuring with intent to injure under ss 189(2) and 66 of the Crimes Act 1961. This was later amended to common assault under s 9 of the Summary Offences Act for Ms Taavili (the appellant), Mr Taavili, and Ms Tiotala; and common assault under s 196 of the Crimes Act 1961 for Ms Reupena and Ms Dateline Taavili. A person convicted of common assault under s 9 of the Summary Proceedings Act may be liable to six months imprisonment or a fine not exceeding $4,000.
Sentencing
[7] Once the charges were amended, Ms Taavili and her four co-offenders pleaded guilty. They were sentenced together.
[8] Ms Taavili’s counsel submitted at the sentencing hearing that the Judge should make an order under s 106 of the Sentencing Act for a discharge without conviction. He focused on the consequences of a conviction on Ms Taavili’s employment prospects and the fact that a conviction is a significant factor in itself; as well as Ms Taavili’s lack of previous convictions, her minor role, and the fact that she had accepted responsibility and was remorseful.
[9] Prior to sentencing the police had filed a memorandum advising that they were neutral to the s 106 application. However, on the day of sentencing the police changed their position and opposed the application on the basis that all of the defendants should be dealt with in the same way.
[10] Judge McAuslan acknowledged that Ms Taavili’s involvement was less than some of the others. She found that when Ms Taavili came out of the house, other family members were already out of the address holding the victim down on the floor and she was crying and very upset. Her Honour found that:
You came out and told her to shut up and put your hand over her mouth. That is your only involvement in this matter.
[11] The Judge concluded, however, that:
[37] For the reasons I expressed earlier with regard to the other s 106 application [by Ms Tiotala], I do not consider that this is a minor incident. I am not satisfied there is sufficient evidence before me in terms of consequences for you, that the test in s 107 could be satisfied in your favour.
[38] I am satisfied that the application should be declined. There is merit in the prosecution’s submission that all of you should be dealt with in the same way. Parity of sentencing is an important principle.
[12] Each offender was convicted of their respective offences and ordered to come up for sentence if called upon within six months. The Judge intended this as a “good behaviour bond”. They were each also required to pay $132.89 in Court costs.
Discharge without conviction
[13] Section 11 of the Sentencing Act 2002 requires a Court to consider discharge without conviction before imposing a sentence. The power of the Court to grant a discharge without conviction is found in ss 106 and 107 of the Sentencing Act 2002. For present purposes the key subsections are as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
…
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.
[14] In R v Hughes1 the Court of Appeal held that whether or not the s 107 threshold is met is a “matter of fact requiring judicial assessment”, not an exercise of discretion.2 Accordingly the ordinary principles governing general appeals, as prescribed in Austin Nichols & Co Inc v Stichting Lodestar3 apply.
[15] Section 106 confers upon the court a discretion to discharge an offender without conviction for an offence for which the court is not required to impose a minimum sentence. But it may not do so unless it is satisfied under s 107 that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. As the Court of Appeal said in R v Hughes:4
... 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.
[16] Section 107 involves a three step approach which requires the Court to:
(a) identify the gravity of the offence with reference to the particular facts of the case;
(b) identify the direct and indirect consequences of a conviction; and
(c) determine whether those consequences would be out of all proportion to the gravity of the offending.
1 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222.
2 At [11].
3 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
4 R v Hughes at [8]-[12].
[17] The Court of Appeal in Hughes also found that:5
Application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10. Having taken account of these factors, the Judge must determine whether the s 107 test is met and whether it is appropriate that he or she makes an order under s 106 to deal with the offender.
[18] Subsequently, however, the Court of Appeal in Blythe v R6 has amended the approach to be taken. Although their Honours confirmed that the three-step approach is “a helpful and practical way of applying the s 107 test”,7 they modified the considerations that can be taken into account under that test. In particular, it was held that factors required to be considered in terms of ss 7, 8 and 9 of the Sentencing Act are not to be taken into account at that stage. Instead, it is only when exercising the residual discretion under s 106 that these matters are to be considered.
[19] Responding to the statement in Hughes at [41] the Court in Blythe said:8
[11] That appears partly to misstate the requirements of the s 107 disproportionality test. The aggravating and mitigating factors set out in s 9 of the Sentencing Act, and those listed in s 9A … are obviously relevant to “the gravity of the offence”. But the content in ss 7, 8 and 9 is not. …
[12] As was pointed out in Hughes, the Court must first consider whether the disproportionality test in s 107 has been met. Only if it has been may the Court proceed to consider exercising its discretion to discharge without conviction under s 106. It is at that stage – when exercising the residual discretion under s 106(1) and in deciding whether further orders are required under s 106(3) – that the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act, the aggravating and mitigating factors listed in ss 9 and 9A (as we have pointed out these were relevant to the s 107 disproportionality test), and the matters dealt with in ss 10 and 10B must all be taken into account. That is because all those sections apply, not only in sentencing, but also in “otherwise dealing” with an offender. In that respect, we agree with Hughes.
[20] Accordingly I approach the matter by first considering the “three steps”
approach to the s 107 test, before turning to consider whether to exercise my residual
5 At [41].
6 Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.
7 At [14].
8 Citations omitted.
discretion under s 106 (with reference to the factors in ss 7,8 and 9 of the Sentencing
Act as appropriate).
Gravity of the offence
[21] When sentencing Ms Taavili, Judge McAuslan observed that she did not consider the incident to be a minor incident “for the reasons I expressed earlier with regard to the other s 106 application”.
[22] The “other s 106 application” was made by the victim’s aunt, Ms Tiotala. In sentencing her the Judge elaborated on why the incident was “not a minor one” in the following terms:
[17] I am obliged to take into account the gravity of the offending. This was a grave incident, and I do not accept it is at the lesser end of the scale of a s 9 assault. I note the involvement of your other family members, together with your actions, because you were, according to the summary, watching it so you were well aware of exactly what was going on. Given that you were the aunt, and therefore in a position of some authority in the household, I would have thought that an action more appropriate than joining in would have been the way for you to behave.
[23] These comments are specific to Ms Tiotala and of limited relevance to Ms Taavili who did not watch the incident (she was inside the house at the time) and was not in the same position of authority in the household as the aunt.
[24] I agree that, viewed in its entirety, the incident was a grave one and not at the lesser end of the scale of a s 9 assault. However, Ms Taavili’s involvement in the overall incident was relatively minor. She came out of the house after the dragging and assault had occurred, briefly put her hand over her cousin’s mouth and told her to “shut up”. Her role was less than that of all the other offenders, including Ms Tiotala, who was also acknowledged to have had a comparatively limited role in the offending.
[25] The Judge’s comment that the assault was not a “minor incident” appears to have been directed at the incident as a whole rather than specifically the gravity of Ms Taavili’s offending. Ms Taavili’s role was to put a hand over the victim’s mouth. Viewed in the context of the preceding dragging and assaults committed by the other
offenders, such an action may have increased the victim’s fear and vulnerability;
however, these actions were still at the relatively minor end of the scale.9
[26] None of the injuries caused to the victim were a result of Ms Taavili’s actions. She had no involvement in the earlier assaults on the victim, which were committed by other family members. I find that while the incident as a whole was serious, the gravity of Ms Taavili’s role in it was at the lower end of the scale of seriousness.
Direct and indirect consequences of a conviction
[27] The test requires an assessment of the consequences of a conviction on the basis that there is a real and appreciable risk that they may occur, not on the basis that they would probably or inevitably occur.10
[28] Ms Taavili is an administrator. She was required to disclose any criminal convictions and undergo a police check for her current employment role. The likelihood of Ms Taavili applying for new jobs in the future is high, as she is studying towards qualifications that would allow her to apply for more senior administrative roles. Ms Taavili is the breadwinner for her family. She is concerned that, particularly in the current job market, a conviction may jeopardise her future job prospects.11
[29] Ms Taavili attached a copy of an employment application for an administrator position to her affidavit, as an example of the type of position that she would hope to apply for in the future. The application form required the disclosure of any criminal convictions in the last 10 years. It also required an indication from the applicant
whether or not that person would undergo a police check if required.
9 Cf. punching (Sika v R [2011] NZCA 376, Police v Barns DC Nelson CRI-2011-042-286, 9
November 2011, Collier v Police [2012] NZHC 646 and Namulauulu v R [2011] NZCA 555), slapping and “flipping” a cup of tea (Kovalenko v Police [2012] NZHC 1184), and pushing the victim to the floor in the context of an abusive relationship (Burgess v Police HC Dunedin CRI-2011-412-35, 12 October 2011)
10 Alshamsi v Police HC Auckland CRI-2007-4040-62, 15 June 2007 at [20].
11 See Tahitahi v Police HC Auckland CRI-2012-404-10, 4 April 2012 at [25], Brown v R
CA684/2011, 17 May 2012 at [15], and Nash v Police HC Wellington CRI-2009-485-7, 22 May
2009 at [19]-[20] regarding the consequences of a conviction in the current employment market.
[30] A conviction of itself is a significant factor. Various Judges of this Court have previously held that the impact of convictions on job applications is a relevant factor even though such consequences may be “general consequences” likely to flow from a conviction rather than being related to an appellant’s particular circumstances.12
[31] In Tahitahi Allan J found13 that, having regard to the limited scale of the offending in that case, the Court is entitled to consider the likely consequences in the more general sense explained in cases such as Alshamsi, Nash and Harvey. The same approach is justified in this case. In particular, I accept that the existence of a conviction is likely to render the task of job hunting significantly more difficult for the appellant than if she did not have a conviction.
[32] I have no difficulty accepting that the appellant’s ability to secure more senior administrative positions is likely to be compromised by having a criminal conviction. There is a real and appreciable risk that Ms Taavili’s future employment prospects could be negatively affected by her conviction. All other things being equal, persons without convictions are likely to be preferred over those who have a criminal record.
Would the direct and indirect consequences of a conviction be out of all proportion to the gravity of the offence?
[33] I have found that Ms Taavili’s role in the incident, while deserving of
condemnation, was at the lower end of the gravity spectrum.
[34] Ms Taavili has an unblemished record. She is the main breadwinner for her family. She is studying for a Diploma in Business Administration which she hopes will assist her to secure more senior positions in the future. I accept that the existence of a conviction will likely hinder the appellant’s career progression and
impact adversely on her ability to secure administrative roles in the future.
12 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007; Nash v Police HC Wellington
CRI-2009-485-7, 22 May 2009 at [19]-[20]; Harvey v Police HC Christchurch CRI-2007-409-
236, 13 February 2008.
13 Tahitahi v Police HC Auckland CRI-2012-404-10, 4 April 2012.
[35] The issue is one of proportionality. Ms Taavili’s offending was very much at the lower end of the scale and yet she faces a real risk that her future employment prospects will be seriously compromised. In my view the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending in this case. Accordingly the s 107 threshold is met.
Discretion under s 106
[36] In Hughes it was recognised that where a case for discharge without conviction has been made out in terms of s 107, then there will be a strong case for the exercise of the residual discretion under s 106 in the appellant’s favour.
[37] Blythe established that it is appropriate at the stage of considering the s 106 discretion, to consider the general sentencing factors in ss 7, 8 and 9 of the Act.
[38] Ms Taavili has reached the age of 37 without having incurred any previous criminal convictions. On this occasion, however, whether due to family loyalty, embarrassment that the neighbours were being disturbed, or otherwise, Ms Taavili’s judgment failed her. She became embroiled in the tail end of a serious family incident during which her cousin was assaulted.
[39] I accept that Ms Taavili is genuinely remorseful and I note that she was willing to attend a restorative justice conference. Unfortunately, however, the victim could not be located.
[40] It seems unlikely that Ms Taavili will ever appear before the Courts again. I do not believe that a conviction is necessary to deter Ms Taavili from future offending or to protect the wider community. Nor is a discharge without conviction likely to deprive employers of information that they should otherwise have (for example because it is directly relevant to the appellant’s suitability for administrative work).
[41] Judge McAuslan at [38] of her decision stated:
I am satisfied that the application should be declined. There is merit in the prosecution’s submission that all of you should be dealt with in the same way. Parity of sentencing is an important principle.
[42] Section 8(3) of the Sentencing Act requires the Court to take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
[43] This is not a case, however, where all of the offenders had a similar role in the incident. The prosecution’s submission that all of the defendants should be dealt with in the same way failed to take into account the requirement to consider individual culpability, sentencing each offender appropriately for his or her role in the overall offending, taking into account aggravating or mitigating features personal to that particular offender.
[44] The nature, level and duration of assaults were different between the defendants. Each had a separate summary of facts. Ms Taavili’s level of involvement was at the lower end of the gravity scale and this is reflected in the summary of facts that she entered a guilty plea to. Her level of culpability was less than that of the other defendants. In particular, she took no part in the incident which caused the injuries to the victim and nor did she “stand by” and watch it. In the circumstances of this particular case the parity principle did not require all of the offenders to be sentenced in the same way.
[45] Consideration of general sentencing factors in this case does not alter my view that it would be appropriate to discharge Ms Taavili without conviction.
Conclusion
[46] The appeal is allowed. Ms Taavili’s conviction is quashed and she is discharged without conviction pursuant to s 106 of the Act.
Katz J
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