Tait v Police

[2015] NZHC 1601

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000111 [2015] NZHC 1601

BETWEEN

TOD GRAHAM TAIT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 June 2015
Counsel:	S Khan for Appellant S McKone for Respondent
Judgment:	9 July 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 9 July 2015 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Fortune Manning Lawyers, Auckland.

Meredith Connell, Auckland.

TAIT v NZ POLICE [2015] NZHC 1601 [9 July 2015]

Introduction

[1]      This is an appeal arising out of expressed driver anger at the conduct of another driver, known as road rage.  On 2 September 2013 the appellant Mr Tait had been driving home along Huia Road, Pt Chevalier.  His two year old daughter was in the back seat in her car seat.  The complainant in her car drove up behind him and, in his perception, drove too close behind him in an aggressive way indicating that she wished to get past.

[2]      Mr Tait pulled over and the complainant passed him.  He then pursued her down the road and she turned into her home address.  Mr Tait followed her to that home address and parked outside.  Mr Tait wound down his window and lent out and shouted at the complainant about her driving.

[3]      In response the complainant came up to the passenger side of Mr Tait’s vehicle.  The window was down.  She leant into the vehicle and began shouting at Mr Tait, disputing his accusations about her driving.  As she shouted at Mr Tait, he shouted back.  He then struck her across the face with his open hand.

[4]      This action caused her to withdraw from the car and come around to the driver’s side of the vehicle.  She reached in and tried to wrestle the car keys from Mr Tait.   There was then something of a struggle between the two as she sought, ultimately successfully, to take the car keys.  Mr Tait ultimately had to walk home with his daughter leaving the car where it was.

[5]      It is common ground that the culpability of the offending must be limited to Mr Tait’s action in striking the complainant with his open hand to the face, rather than the mutual physical struggle that took place later in relation to the car keys. The charge only relates to that action.

[6]      The matter came before Judge E M Thomas in the District Court at Auckland on 19 January 2015.   The point at issue was whether there should be a discharge without conviction.  The Judge did not deal with the issue of what sentence would be appropriate if a discharge was refused.   The Judge declined to discharge Mr Tait without conviction.

The decision

[7]      The Judge observed that Mr Tait was guilty of a crime of violence, and that his actions involved an assault on a female who was unlikely to be able to physically compete with him.  He put to one side the fact that the complainant was pregnant as this was not known or obvious to Mr Tait.  He noted that Mr Tait had initiated the confrontation, and observed that Mr Tait had a difficult time in his private life, and

had strong views about dangerous driving.  He observed:1

Although in terms of the male assaults female scale your offending could be described as low, overall I assess it as being moderate.

[8]      The Judge considered the various consequences to Mr Tait of a conviction. While accepting that there would be embarrassment, shame and stress, he observed that these normally arise on conviction in such cases and he found that there were no direct or indirect consequences that collectively outweighed or were out of all proportion  to  the  gravity  of  the  offending.    For  that  reason  he  declined  the application.

[9]      Later on 27 March 2015 a different Judge sentenced Mr Tait to 100 hours community work and 12 months supervision.  Mr Tait has not sought to appeal that specific sentence which he has partly served, and is focused on the refusal to discharge.

Approach

[10]     Section 106 of the Sentencing Act 2002 confers jurisdiction on a court to discharge an offender without conviction.  Section 107 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.

1      Police v Tait [2015] NZDC 494 at [16].

[11]     In R v Hughes the Court of Appeal held that the decision as to whether the test under s 107 has been met is not a matter of discretion.2    It is a matter of fact requiring judicial assessment and on appeal is subject to normal appellate principles. Those appellate principles are set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.3    The appellate Court must give judgment in accordance with its own opinion, even where that opinion is an assessment of fact and degree and entails a value judgment.4    However, the decision subject to appeal is relevant and will be carefully considered and the view expressed taken into account.

[12]     There have been some differences of approach taken by the Courts over the years.   Those differences were addressed in Z v R, where Arnold J in giving the judgment of the Court set out the approach under s 107 as follows:5

... when 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 ...

[13]     It is necessary therefore in assessing the gravity of the offence to look at the culpability of the offending and any aggravating and mitigating factors that relate to the offender.

The gravity of the offending

[14]     The appellant submits that the gravity of the offending is low.  The Crown submits that the Judge was correct to assess the gravity as in fact moderate, but submits that even if it was low the consequences of conviction would not be out of proportion to the gravity of the offending.  I accept that the approach of the Judge, to assess gravity on an overall basis rather than in the context of the particular type of

charge, was correct.6

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

3      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

4 At [16].

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

6 At [31].

[15]     In  assessing  the  gravity  of  offending,  the  background  circumstances  are relevant,  and  is  of  particular  relevance  if  there  are  elements  of  provocation. R v Taueki stands for the proposition that provocation is relevant to culpability for a charge of grievous bodily harm when it is serious and an operative cause of the offending.  It was stated that:7

It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

[16]     In  the  discharge  without  conviction  context  the  provocation  must  be operative.

[17]     Mr Tait was foolish to pursue the complainant to her home and shout out at her.  It is not suggested that he threatened her or broke any law when he shouted at her.  However, if he in fact considered her driving to be unacceptable he could have taken her registration number and notified the Police.

[18]     In response the complainant was also guilty of an act of foolishness.  Rather than ignoring Mr Tait or responding in a moderate way, she came up to his car and put her head inside his car and shouted at him.  He had a two year old child in the back.   It can be observed that the act of foolishness by Mr Tait in pursuing and shouting at the complainant was equalled if not surpassed by the act of foolishness on the part of the complainant in responding in kind, and in particular in putting her head inside Mr Tait’s car and shouting at him at close range.  It was this act which seems to me to have been the operative cause of the violence inflicted by Mr Tait.

[19]     Mr Tait did not attempt to drive away with part of the complainant’s body in the car.  His slap did not injure the complainant, and there is nothing to indicate it marked her in any way.   Mr Khan put Mr Tait’s actions as being reactive and an attempt to get the complainant’s head and shoulders out of his car and to stop the shouting, all of which was before his two year old in the back seat.  The complainant

appears to have not been deterred by his actions in the slightest, given her action

7      R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [32](a).

immediately following of going around to his side and pulling the keys out of the ignition.

[20]     I differ from the Judge in my assessment of the gravity of the offending.   I see this as a minor assault, not intended to injure.   It was reactive and in part an attempt to stop the complainant from being in his car and shouting in front of his daughter.   I do of course acknowledge that this was in itself in response to a very foolish  act  on  Mr  Tait’s  part.    However,  in  my  assessment  the  gravity  of  his offending was of a low order.  In particular, I see the slap as a reaction to provocative action by the complainant.  Needless to say, if she thought Mr Tait was unfit to drive then she should have contacted the Police rather than taking the matter into her own hands.

Aggravating or mitigating factors relating to the offender

[21]     Mr  Tait  derives  his  income  from  purchasing  and  selling  properties,  and property management.   He has a partner and three young children and is the sole income earner.  He has two prior convictions.  The first is a conviction for common assault, committed when Mr Tait was an 18 year old university student, some 21 years ago.  He was fined $300.  The second is a conviction for driving with excess breath alcohol (733 micrograms of alcohol per litre of breath) in 2004.  He was fined

$600 and disqualified from driving for six months.  The Judge noted that the 2004 excess breath alcohol conviction did not help Mr Tait’s cause, and I would agree with that.   Nevertheless, it is arguable that Mr Tait is entitled to some credit for good conduct.  He appears to be a community-minded individual, as I will outline.

[22]     Mr Tait and his wife have suffered the considerable trauma of having a severely premature son born in July 2012 at 24 weeks and who was in intensive care for 14 weeks.   By the time of the incident in question that son had been out of hospital for some 10 months, but I accept there would have been residual trauma and ongoing stress in relation to such a premature child.

[23]     It is clear that Mr Tait is very committed to ensuring that Huia Road, in which he lives, is safe.  He was first on the scene of a tragic traffic fatality on Meiklejohn Way, Omaha, some time before.  He has been concerned about drivers speeding in

the street.  It would seem that there is often dangerous driving on Huia Road, which although a residential street is often used as a through road, with cars often speeding. Mr Tait has campaigned for speed bumps and there are now speed bumps. At the time of the incident he was very sensitive to fast aggressive driving, and I accept, as did the District Court Judge, that this was a motivating factor for his actions.

[24]     Thus, there are some mitigating factors in relation to Mr Tait as an offender, which are part of the assessment of the gravity of the offending.   I record that Mr Tait  pleaded  guilty  to  the  charge  and  as  identified  by the  sentencing  Judge accepted responsibility for his offending at an early stage.

The direct and indirect consequences of the conviction

[25]     Mr Khan has put forward for Mr Tait various possible consequences, all of which were dealt with by the District Court Judge.  Mr Tait raises the nature of his work, which he says requires good standing in the community and a high degree of trust.  A company that he contracts for wishes him to obtain a real estate agent’s licence and he is concerned that a conviction of male assaults female could mean that he would not be considered a fit and proper person.  He is concerned about whether he will be able to get insurance cover for properties, when proposals require disclosure of convictions.  He is worried that he will not be accepted as a person who can do work for the community with such a conviction.  His particular concern is that his efforts as an appointed fundraiser for the newborn intensive care unit at Starship Hospital, arising out of his son’s premature birth, will be inhibited, and so will his efforts to become a volunteer fire officer.

[26]     The consequence of the conviction will mean that Mr Tait is unable to rely on the clean slate scheme.8    He will have to continue to disclose his full record for at least seven years.   The Crown accepts that this is so, but points out this is a consequence of being convicted of any offence, and is a consequence contemplated

by that Act.

8      Criminal Records (Clean Slate) Act 2004, s 7.

[27]     I accept the Crown’s submission that there is  no evidence of any  direct adverse consequences to Mr Tait arising from this conviction.   However, I also accept Mr Khan’s submission that the conviction can be fairly expected to be an impediment to Mr Tait’s activities in the future insofar as those activities require him to disclose whether he has any previous convictions.  Given the nature of his work and his ambitions to participate in community projects, it can be expected that the conviction could cause him some difficulty.

[28]     Judge Thomas grappled with this issue carefully and properly.  He observed:9

Embarrassment, shame and stress are all, in general terms, factors that I am able to consider in assessing the direct and indirect consequences of conviction.   Most of the consequences that you rely on are different manifestations of exactly that.  Your life has become difficult and will continue to be more difficult because of the stress and the embarrassment that you have suffered as a result of this incident and now, you claim, if you were to receive a conviction.  All of these are relevant and there is much in what you have put before me that mitigates your offending.

[29]     The  conviction  will  show  as  male  assaults  female  conviction,  with  the penalties imposed of supervision and community work.  I can readily imagine that any possible employer or commercial partner, or an organisation assessing Mr Tait as a participant in community work, would be most concerned at the presence of such a conviction.  This might well lead to Mr Tait not being accepted for a position that might otherwise be available to him.

[30]     The situation will also lead to general stress and embarrassment on his part whenever he is required to disclose his previous convictions.  I can well see that this can be a very serious matter to a person who takes pride in his or her position in the community.  It can be a severe blow to any person’s self-esteem to carry a conviction of such outward seriousness.  It would be something of a long-term blight on self- confidence.

[31]     In this regard I agree with the comments of Mallon J in Nash v Police, which have some similarities to the present, where she said:10

9      Police v Tait, above n 1, at [24].

10     Nash v Police HC Wellington CRI-2009-485-0007, 22 May 2009 at [19].

In a variety of ways (eg. employment, insurance, immigration) people are asked to disclose whether they have criminal convictions.  For those that are remorseful there can be a loss of pride and self-esteem or at least embarrassment in having to answer that question honestly.   It may also materially disadvantage him – as his counsel says it may count against him when he is competing for a position against someone who does not have a conviction.

Proportionality

[32]     Nevertheless I must weigh against this issue in assessing proportionality, the fact that Mr Tait had acted most foolishly in following the complainant and shouting at her and then in striking her with his open hand.   Violence, particularly if it is associated with rage at the driving of another, must be denounced and such actions deterred.

[33]     In the end, however, that factor while relevant  must be  balanced by the recognition that this was not an act of violence directly resulting from road rage, but rather a reaction to rage being shown by another driver, the complainant, who had put her head in his car and was shouting at him.   Her action was a reaction to Mr Tait’s foolish action, but that action in itself had no element of violence in it.  As I have said, in my assessment, contrary to the view of Judge Thomas, I see the gravity of the offending as low.  I think on balance, given that Mr Tait’s action was physically of this low order of seriousness, was provoked and reactive, coupled with his  relatively  good  background  of  family  and  community  work,  the  direct  and indirect consequences of conviction are out of all proportion to the gravity of the offence.

[34]     I conclude, therefore, that the appeal should be allowed.

Result

[35]    The appeal is allowed.   The conviction is quashed and the appellant is discharged without conviction under s 106 of the Sentencing Act 2002.

……………………………..

Asher J