Taumalolo v Police
[2016] NZHC 1525
•6 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000143 [2016] NZHC 1525
BETWEEN SIMIONE TAUMALOLO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 July 2016 Appearances:
A F McLean for the Appellant
J Simpson for the RespondentJudgment:
6 July 2016
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 6 July 2016 at 3.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:…………………………
Solicitors:
Public Defence Service, Auckland
Crown Solicitor, Auckland
TAUMALOLO v NEW ZEALAND POLICE [2016] NZHC 1525 [6 July 2016]
Introduction
[1] The appellant, Mr Taumalolo, appeals a decision given by Judge A J Fitzgerald in the District Court at Auckland on 13 April 2016.
[2] Mr Taumalolo pleaded guilty to one charge of contravening a protection order, contrary to s 49(1)(a) of the Domestic Violence Act 1995, and two charges of failing to answer bail, contrary to s 38(a) of the Bail Act 2000. He applied to be discharged without conviction under s 106 of the Sentencing Act 2002. Judge Fitzgerald refused that application. Rather he convicted Mr Taumalolo on the charge of contravening the protection order and ordered him to pay $500 emotional harm reparation to the victim. He convicted and then discharged him for the breaches of bail.
[3] Mr Taumalolo appeals Judge Fitzgerald’s decision not to grant discharges without conviction. He argues that the Judge erred in his assessment when he concluded that the direct and indirect consequences of the convictions were not out of all proportion to the gravity of the offending.
Background
[4] A temporary protection order was made against Mr Taumalolo on 3
September 2014. The order protected his former partner – the victim – and her and
Mr Taumalolo’s son.
[5] On 22 January 2015 – a few days after his son’s first birthday – Mr Taumalolo called the victim on her cellphone. There were four separate calls made between 9.13 and 9.14am. She did not answer. He then entered into an exchange of texts with her. At 10.17am he sent a text message saying “Do it my fukn sonnnn”. The victim replied, advising Mr Taumalolo that if he breached the protection order too often, he could end up back in jail. Mr Taumalolo then replied “Careeee what breechh?? Nigga u don’t hava non contact order on me lmao”. He then sent two further texts saying “Nooooo I dont careeee send the police to my gfz house”, and a little later, “Anyways cyaaaaahaha”.
[6] In explanation, Mr Taumalolo said that he believed that the protection order was no longer valid, and that it had only been in force when he was on bail.
[7] The two charges of failing to answer bail involved Mr Taumalolo failing to appear at the Auckland District Court on two occasions:
(a) on 30 June 2015, for a monitoring appearance; and
(b)on 21 December 2015, when the discharge without conviction application was first scheduled to be heard.
District Court judgment
[8] Judge Fitzgerald set out the relevant facts. He noted that the impact the breach of the protection order offending had had on the victim was significant. He observed that Mr Taumalolo had no previous convictions, but that he had previously been granted discharges without conviction in 2008 for two charges of assault.
[9] Judge Fitzgerald briefly summarised the law in relation to discharges without conviction. He went on to assess the gravity of the offending. He did not accept that it was at a very low level and commented that an assessment at that level would not allow for the dynamics of domestic violence. He observed that, for there to be a protection order in place, there must have been domestic violence in the past and that the need for the order must have been established. He ventured that what might seem trivial or very low level to a third party, could be very upsetting for a victim. Considering the offending in the round, he concluded that it was “within the low range, but certainly not at the bottom of the range, at least in the middle of the range”. He recorded that, in assessing the gravity of the offence, he had taken into account that Mr Taumalolo had pleaded guilty, that he had attended a programme aimed at preventing violence and that he had no previous convictions.
[10] The Judge then went on to consider the consequences of any convictions. He noted that Mr Taumalolo was concerned that if he had to declare any conviction for breaching the protection order, he might not be able to get a job as a social worker. The Judge noted that Mr Taumalolo was training to be a social worker, but that he
was then taking time out. He recorded Mr Taumalolo’s advice that he intends to resume his studies in 2017.
[11] The Judge concluded that the consequences were not out of all proportion to the gravity of the offending. He considered that persons who oversee the entry of others into employment, such as social work, are entitled to know all the relevant facts in deciding whether somebody is suitable to have a relationship with clients who are vulnerable or potentially vulnerable. The Judge concluded that the statutory test was not made out, and he declined to order discharges without conviction.
Submissions
[12] Ms McLean did not take issue with Judge Fitzgerald’s assessment of the gravity of the offending. She submitted that the fact that Mr Taumalolo was previously discharged without conviction some six years ago did not preclude a further application succeeding. She then referred to the consequences of the convictions. She noted that, if the convictions remain, it is likely that Mr Taumalolo will have to disclose the same in the event that he is required to re-apply for admission to the Bachelor of Social Practice programme he has already started. She argued that disclosure has the potential to preclude Mr Taumalolo from returning to finish the course. She also argued that, if the convictions remain, Mr Taumalolo will have to disclose the same under the Social Workers Registration Act 2003 if he seeks to become a registered social worker. She submitted that the fact of the convictions would be a matter which would fall to be assessed when determining whether or not Mr Taumalolo is a fit and proper person to be so registered. She argued that these consequences are real and appreciable, and that they are out of all proportion to Mr Taumalolo’s offending.
[13] Mr Simpson, for the Police, also accepted that Judge Fitzgerald correctly assessed the gravity of the offending. He went on to address the consequences raised by Ms McLean and submitted that there is no real and appreciable risk that they will occur. He argued that there are “a lot of ifs”, that Mr Taumalolo may not be required to apply for re-admission to the Bachelor of Social Practice programme, and that even if he is required to re-apply, and disclose the convictions, it does not inevitably
follow that he could not be re-admitted. Similarly he argued that the Social Workers Registration Board, the body entrusted with the administration of the Social Workers Registration Act, must be satisfied that a social worker is a fit and proper person, before that person can become registered. He submitted that convictions do not preclude registration, albeit that the Board might wish to take them into account. He argued that this is appropriate, and that the consequences are not out of proportion to the gravity of the offence. He put it to me that the threshold set out in s 107 of the Sentencing Act is not met in this case.
Analysis
[14] Relevantly, ss 106 and 107 of the Sentencing Act provide 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.
[15] The approach to be followed in applying the s 107 test has been set out by the
Court of Appeal in Z v R.1 Arnold J held as follows:2
… 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 (although, … it will be a rare case where a court will refuse to grant a discharge in such circumstances).
1 Z v R (CA447/2012) [2012] NZCA 599, [2013] NZAR 142; and see DC (CA47/2013) v R [2013] NZCA 255 at [30]-[35]; Ji v R [2015] NZCA 308 at [43]-[45].
2 At [27].
[16] The Court must be satisfied that there is a real and appreciable risk that the identified direct and indirect consequences will occur. It need not however be satisfied that those consequences are inevitable.3
[17] First I note that an appeal against a refusal of a discharge without conviction, on the basis that the s 107 test is not met, proceeds by way of re-hearing. This is because s 107 involves the judicial assessment of identified threshold criteria, rather than the exercise of a discretion. As a result an appellate Court must re-hear the appeal and make a fresh assessment in accordance with its own opinion.4
[18] Secondly, I observe that the fact that Mr Taumalolo has previously been granted two discharges without conviction does not preclude him applying for, and being granted, a further discharge without conviction. I note the observations of Katz J in Swami v Police:5
Courts have of course on occasion been willing to grant two or more discharges without conviction to the same offender. However, it has been recognised that a previous discharge without conviction for offending of the same type must count against a discharge on a later occasion: … In my view this is particularly so in the context of breaches of protection orders.
[19] I agree with and adopt these observations. Mr Taumalolo’s earlier discharges occurred some six years ago, and in the context of non-domestic assaults. The fact that Mr Taumalolo has previously been discharged without conviction might be relevant to his personal circumstances and history, which could affect the Court’s assessment of the gravity of the offences presently in issue. It might also be relevant to the exercise of the residual discretion to grant a discharge without conviction under s 106 if the s 107 threshold is met. It does not of itself preclude a further application.
Gravity of the offence
[20] This issue was succinctly considered by Judge Fitzgerald, and neither Mr
Taumalolo, nor the police, have challenged his assessment.
3 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-062, 15 June 2007 at [20].
4 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].
5 Swami v Police [2012] NZHC 2725, [2012] NZFLR 962 at [25].
[21] There is no tariff case for contravening a protection order. Each case must be considered on its own facts.6 Mr Taumalolo has no previous convictions, although he has been discharged without conviction.. He has completed the Man Alive Non Violence programme, and he is entitled to credit for this. He entered guilty pleas in relation to the current offending. All of these matters must be considered. The Court must also be alive to the fact that protection orders are not lightly made.7 As noted by Judge Fitzgerald, there must have been a prior incident of domestic violence for the protection order to have been put in place. Mr Taumalolo’s offending involved four unanswered phone calls, followed up by a number of text messages. While there were no overt threats in the text messages, there was an element of intimidation in them. The repeated attempts at conduct were harassment. This is not a case of a single, isolated or innocuous attempt at contact. It is also noteworthy that the
maximum penalty for contravening a protection order was increased from two years’
imprisonment to three years’ imprisonment as from 25 September 2013.8
[22] In my judgment, Judge Fitzgerald correctly assessed the offence as being within the low to medium range for offences of this type.
Consequences of convictions
[23] I now turn to consider the direct and indirect consequences of any convictions for Mr Taumalolo.
[24] There will always be general consequences that follow from any conviction, at least for any right thinking member of the community. As has been previously noted by this Court, people are commonly asked to disclose whether they have criminal convictions. To those that are truly remorseful, disclosure can result in a loss of pride and self esteem, or in embarrassment. Disclosure can also materially disadvantage a person. It may count against him or her when he or she is competing
for a position against somebody who does not have a conviction.9
6 Mataiti v Police [2014] NZHC 1675 at [14].
7 Police v Tule HC Rotorua AP87/02, 10 October 2002 at [14].
8 Domestic Violence Amendment Act 2013, s 11(1).
9 Nash v Police HC Wellington CRI-2009-485-007, 22 May 2009 at [19].
[25] Here two consequences were advanced in counsel’s submissions. First, Mr Taumalolo may have to re-apply for admission to the Bachelor of Social Practice programme run by Unitec, and that any declaration of his convictions may preclude him from returning to that programme. Secondly, it may preclude him from obtaining registration as a social worker.
[26] I consider each alleged consequence in turn.
[27] Mr Taumalolo enrolled in the two year Bachelor of Social Practice programme at Unitec in 2014. After discovering that his new partner was pregnant at the end of 2014, he decided to take a break from his studies to support his family, but with the intention of returning to complete his studies in 2017.10 It is his ultimate plan to obtain employment as a social worker.
[28] Ms McLean helpfully annexed to her submissions the Unitec Bachelor of Social Practice programme regulations, which, it seems, came into force in semester two of 2015.
[29] The regulations now require that all applicants seeking to be admitted to the programme must meet various requirements. The regulations provide that students who withdraw from the programme or take an extended leave of absence of a period of time in excess of one year “may be” required to apply for re-admission. Applicants are required to declare any criminal convictions that could prevent full participation in the programme and/or prevent registration with the relevant regulatory authority. Applicants are required to sign a consent form, allowing them to be vetted. The regulations go on to provide that, when the number of eligible applicants for admission exceeds the number of places available, applicants must have a history appropriate to a career working with vulnerable people. The regulations record that past criminal convictions may be, but are not necessarily, a
factor in determining suitability for admission to the programme.
10 In the course of her submissions, Ms McLean informed me from the bar that Mr Taumalolo has deferred his plans. He now proposes to return to complete his course in 2018.
[30] There is no evidence before the Court as to whether these regulations are retrospective, whether Mr Taumalolo is caught by them, how likely it is that Mr Taumalolo will be required to re-apply for admission, or how the convictions here in issue would likely be treated in the event that they are required to be disclosed.
[31] If Mr Taumalolo is not required to re-apply there is no difficulty for him in completing the programme he has started. If he is required to re-apply, declaring convictions is but one of a number of requirements for re-admission. Inter alia, an applicant must provide independent references and a personal statement. There is scope for Mr Taumalolo to address the convictions in the re-application process. Further previous convictions are only one of a number of matters set out in the selection criteria and, as I read the regulations, they only come into play if the number of eligible applicants exceeds the number of places available. On the face of the regulations it seems that any assessment required would be holistic, considering all of an applicant’s relevant work and life experiences.
[32] At its highest, disclosure has the potential to preclude Mr Taumalolo from returning to finish the Bachelor of Social Practice programme he has started. However, that potential consequence is but speculation, and it depends on a number of factors. The fact of the convictions would not necessarily preclude Mr Taumalolo from being re-admitted to the programme and, in my judgment, there is no real and appreciable risk of that consequence.
[33] I now turn to consider the issue of registration as a social worker.
[34] As I understand it, a voluntarily scheme of registration is currently in place. Individuals who obtain registration have the right to call themselves registered social workers. It is the expectation that, over time, registration will become the norm.
[35] Pursuant to s 6 of the Social Workers Registration Act, a person who has a recognised New Zealand qualification is entitled to be registered if the Social Workers Registration Board is satisfied as to that person’s competence to practice social work and that the person is a fit and proper person to practice social work.
[36] Completion of the Unitec Bachelor of Social Practice programme is a recognised social work qualification.
[37] Section 47 of the Act sets out the criteria the Board is required to apply in considering whether or not an applicant is a fit and proper person to practice social work. Relevantly it provides as follows:
47 Fitness to practise social work
(1) The Board may find a person (the subject) is not a fit and proper person to practise social work if, and only if, it is satisfied that there are grounds on which a reasonable person would conclude that the subject is not a fit and proper person to practise social work.
(2) For the purposes of subsection (1), the Board may be satisfied that there are grounds on which a reasonable person would conclude that the subject is not a fit and proper person to practise social work if—
(a) the subject has been convicted, in New Zealand or overseas, of an offence punishable by imprisonment for 3 months or more, and the Board is satisfied that the nature and circumstances of the offence reflect adversely on his or her fitness to practise social work; or
(b) the Board is satisfied that the subject is unable to perform adequately the functions required to practise social work satisfactorily; or
(c) the Board is satisfied on reasonable grounds that the subject is not of good character and reputation.
…
[38] Section 50 of the Act provides as follows:
50 Board to ask Police for information, and consider convictions
In order to help determine whether a person is a fit and proper person to practise social work for the purposes of this Act, the Board must—
(a) ask the New Zealand Police to check if he or she has any criminal convictions; and
(b) consider any criminal convictions (whether in New Zealand or overseas) disclosed to the Board by the New Zealand Police, or otherwise known to the Board.
[39] The Board has also released a “Fit and Proper Person Policy Statement”,
which, inter alia, provides that the Board can make further enquiries, including
obtaining copies of sentencing notes, summaries of fact, or solicitors’ reports on the circumstances relating to a conviction. It records that the Board “will” take into account a number of factors, which include the nature of the crime or offence, the penalty imposed, the time elapsed since the offence, any repetition of the offending, completion of the sentence and the level of culpability. The policy statement lists types of offending that the Board might consider would likely lead it to determine that the applicant is not a fit and proper person. Contravention of a protection order and failing to answer bail do not clearly fit within any of the listed types of offending.
[40] Under the Fit and Proper Person Policy Statement, an applicant would be required to disclose any protection orders taken out against him or her. To this extent disclosure of the existence of the protection order will be required by Mr Taumalolo whether or not the convictions remain in place.
[41] The fact that an applicant for registration has a conviction is clearly relevant to registration. There is however no evidence before me establishing that convictions, and in particular convictions for breaching a protection order and for breaching bail, will be a barrier to registration. Under s 6, a person is “entitled to be registered” as a social worker if they meet the statutory criteria. Under s 47(1), the Board may find a person is not a fit and proper person “only if, it is satisfied that there are grounds on which a reasonable person would conclude that the subject is not a fit and proper person to practice social work”. An applicant is not required to establish that he or she is a fit and proper person. He or she need only establish that no grounds exist for finding otherwise. The statutory provisions and the policy statement suggest that the Board will take into account a wide range of factors in assessing whether an applicant is a fit and proper person. Mr Taumalolo will have the opportunity to explain the nature of his offending, and why it should be looked at benevolently by the Board, in the event that he applies for registration. It is also noteworthy that, if the Board declines registration, there is a right of appeal under s
88(1) of the Act.
[42] The Act’s provisions have previously been considered by this Court in Matthews v Housing New Zealand.11 In that case Allan J was hearing an appeal against a decision made in the District Court to refuse a discharge without conviction. He noted as follows:
[28] … A conviction is not a bar to registration, but it is undoubtedly a matter which the Board will wish to take into account. In the same way, a discharge without conviction would be taken into account by the Board, which would obviously need to be fully appraised of the factual background to the offending, and the relevant aggravating and mitigating factors.
[29] I accept that the Board may be somewhat more disposed to take a lenient view if the appellant is discharged without conviction, but there is nothing to suggest that it would refuse her application simply by reason of the fact of a conviction. It is more likely to want to consider all of the relevant circumstances, including the conviction itself.
The appeal was dismissed.
[43] In my judgment, the consequence in relation to registration alleged by Mr Taumalolo is neither appreciable nor real. There is nothing to suggest that he will not be able to obtain registration. Parliament has entrusted the issue of registration to the Board. One of the purposes of the Act is to protect the safety of members of the public by prescribing or providing for mechanisms to ensure that social workers are competent to practice and accountable for the way in which they practice.12 One of those mechanisms is registration, and registration is entrusted to the Board. Where there is an independent body charged with determining the suitability of
individuals for particular employment, the Court should not lightly grant a discharge without conviction. It is in the public interest that the body entrusted with the task of determining suitability is best able to make a decision with the benefit of full
disclosure of the fact of any convictions.13
11 Matthews v Housing New Zealand HC Auckland CRI-2011-404-003, 18 May 2011.
12 Social Workers Registration Act 2003, s 3(a).
13 Liang v Police HC Wellington AB 38/02, 16 April 2003 at [17]; Roberts v Police (1989) 5
CRNZ 34 (HC); R v Foox [2000] 1 NZLR 641 (CA); Vermeulen v Police HC Wellington CRI-
2010-485-141, 11 March 2011; Graves v Police HC Rotorua CRI-2010-463-57, 28 February
2011; Backhouse v Police [2015] NZHC 1178.
[44] I now turn to consider whether or not the consequences of the convictions are
out of all proportion to the gravity of Mr Taumalolo’s offending.
[45] The Court of Appeal has observed that the words “out of all proportion to the gravity of the offence” point to a requirement for an “extreme situation which speaks for itself”.14
[46] In the present case, it cannot be said that the consequences of conviction are out of all proportion to the gravity of Mr Taumalolo’s offending. The consequences are speculative and unclear. There is insufficient evidence to support the assertions alleged on Mr Taumalolo’s behalf. In such circumstances, the Courts should be
cautious.15
[47] A discharge without conviction can only be granted if the consequences of a conviction are out of all proportion to the gravity of the offence. For the reasons I have given, I do not consider that it can be said that the consequences are out of all proportion to the gravity of the offence. The threshold requirements set out in s 107 of the Act are not met.
[48] The appeal is dismissed.
Wylie J
14 Police v Roberts [1991] 1 NZLR 205 (CA) at 210, cited with approval in R v Reid CA 332/04,
16 December 2004 at [35]; and see R v Hughes, above n 4, at [23].
15 Police v M [2013] NZHC 1101, [2013] NZAR 861; Simmonds v Police [2014] NZHC 2488.
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