Tiller v The King
[2023] NZHC 1050
•15 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-490
[2023] NZHC 1050
BETWEEN JOEL MORRISON TILLER
Appellant
AND
THE KING
Respondent
Hearing: 8 December 2023 Appearances:
Appellant in person
H J Bell for Respondent
Judgment:
15 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 15 December 2023 at 10 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
Copy to:
Mr J M Tiller (self-represented)
TILLER v R [2023] NZHC 1050 [15 December 2023]
[1] Mr Tiller appeals against the entering of convictions for two charges of contravening a protection order (one of which was representative), and one charge of resisting arrest. He also appeals against the sentence of 12 months’ supervision on all charges.
[2] Mr Tiller was sentenced by Judge K Lummis on 6 September 2023, after he pleaded guilty to the charges.1 On appeal, Mr Tiller continues to seek a discharge without conviction.
Factual background
[3] The offending relates to two different protection orders that were explained to Mr Tiller at the time the documents were served on him by police:
(a)A protection order on behalf of the first complainant (with whom Mr Tiller was previously in a relationship).
(b)A protection order on behalf of the second complainant (with whom Mr Tiller has a nine-year-old child).
[4] The offending involved threatening phone calls and demeaning messages to those two women in breach of the terms of the protection orders.
[5]In respect of the first complainant:
(a)On 13 January 2021, she received three text messages from an unknown number, including comments of a sexual nature.
(b)On 9 August 2021, Mr Tiller called the first complainant and spoke with her for approximately 11 minutes, some of which was recorded. In that call, Mr Tiller asked her to drop the protection order, and stated that it “would mean nothing” if she did not (this was understood as a threat). The call was followed up by two text messages from the same number.
1 R v Tiller [2023] NZDC 19823.
(c)On 18 August 2021, the first complainant received a call from the same number but did not answer.
[6]In respect of the second complainant:
(a)On 14 July 2021, she received a call from an unknown number, in which Mr Tiller said, “don’t you talk to my daughter”.
[7] The events leading to the charge for resisting arrest occurred in the early evening of 16 March 2022. Police pulled over Mr Tiller while he was driving in Mt Albert. He was informed that he was under arrest for breaching a court-imposed bail condition. Mr Tiller said: “No, I’m not under arrest”. He refused to turn off his engine and step out of the vehicle. Instead, he drove away and did not stop, despite police following with red and blue lights flashing and sirens sounding. Police eventually cornered the vehicle at a residential address. Mr Tiller still refused to exit the vehicle. He clung to the steering wheel and centre console while the police forcibly extracted him.
Legal principles
[8] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.2 The appellant must establish that a miscarriage of justice has occurred, either because the sentencing judge made a material error in entering a conviction or as a result of an error by the judge in applying the principles found in s 107 of the Sentencing Act 2002.3 The appeal proceeds by way of rehearing.4
[9] It is settled that a court considering a discharge under s 106 of the Sentencing Act should follow a three-step process addressing the guidance given in s 107. These steps are:5
2 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
3 At [12].
4 Doyle v R [2022] NZCA 307 at [15]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
5 Prasad v R [2018] NZCA 537 at [11].
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
[10] Only if that threshold is met can the Court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequences will happen.
Appellant’s submissions
[11] Mr Tiller submits that the answer to each of the above questions at [9] justifies a discharge without conviction:
(a)The offending was not serious because there were no physical or explicit threats.
(b)The consequences of a conviction are that it will seriously harm his employability and inhibit his hopes for future overseas travel.
(c)Those consequences are out of all proportion to the seriousness of the offending.
[12] In the appeal hearing, Mr Tiller also complained about the Family Court process and the detrimental impacts he has suffered in terms of financial consequences, difficulties of access to his daughter and harm to his emotional well-being. For the purposes of this appeal, those are not matters that are relevant to the issues I am required to consider under s 106.
Analysis
[13] In terms of whether the offending was serious, Mr Tiller submits that it was not, because neither woman was threatened with “any kind of explicit threat”. Mr Tiller seeks to draw a distinction in severity between “physically violent offending” and “emotional harm”.
[14] However, the Court of Appeal has emphasised that “the psychological harm caused to a complainant by a breach [of a protection order] should not be understated”.6 The gravity of breaching a protection order has been emphasised by the High Court in Morris-Stewart v Police:7
The Court of Appeal has stated that the Courts should uphold the integrity of protection orders and respond sternly to those who flout their force and effect. Orders are intended to ensure that the recipient of the protection order is secure and inviolate. Repeated breaches of protection orders call for a condign sentencing response. Where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.
[15] Offending will be regarded as serious when it is persistent and repetitive, or to reflect the degree of harm caused to the victim (including levels of distress). In this case, the victim impact statements provided at sentencing demonstrated a significant level of anxiety, distress, and concern from the complainants’ perspectives.8
[16] I find that Mr Tiller understates and fails to appreciate the true gravity of his offending. The breaches of the protection orders were moderately serious, involving threats, sexual and demeaning comments, and insults to the complainants in breach of protection orders on a number of different occasions. I accept that the recorded portion of the 9 August 2021 call discloses a clear implied threat against the first complainant. It is also an aggravating feature that some of the offending occurred while Mr Tiller was on bail. The charge of resisting arrest was moderately serious for offending of that type.
6 Wiedemann v R [2018] NZCA 381, [2018] NZFLR 707 at [43].
7 Morris-Stewart v Police [2016] NZHC 1030 at [15] (footnotes omitted), referencing R v Cartwright CA175/02, 27 August 2002 at [20]–[21].
8 R v Tiller, above n 1, at [15]–[16].
[17] In terms of the direct and indirect consequences of the convictions, Mr Tiller is particularly concerned about the potential impact on his employability. He says that the legal process has already devastated his employment prospects and will “at least halve my earning capacity/salary going forwards”. He wants this Court to consider a printout of an email folder demonstrating that he has made numerous unsuccessful applications for work using the website SEEK. These span a period from 7 May 2023 to 15 November 2023. Mr Tiller states that, particularly in his field of marketing, employers nearly always conduct a background check. Having a “family violence” conviction is a “massive red flag”.
[18] The respondent notes that evidence about difficulties in obtaining employment is from Mr Tiller himself, unsupported by objective evidence or any detail about why he was not selected for employment in each relevant instance. In any event, the respondent says that such difficulties are a part of the ordinary consequences of a conviction and such concerns must normally “yield to the employer’s right to know”.9
[19] Mr Tiller also complains about the serious impact that a conviction will have on his ability to get travel visas to foreign countries such as Canada, France, Norway, other European nations and potentially the United Kingdom. There is no specific instance of any pressing need to travel to these countries. Rather, Mr Tiller is concerned that he has not visited the countries before, and it would be painful to have that opportunity taken away.
[20] The Court of Appeal set out the usual requirements when travel concerns are raised as a reason for a discharge without conviction:10
[26]It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
9 R v Taulapapa [2018] NZCA 414 at [42(a)].
10 Edwards v R [2015] NZCA 583 at [26].
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[21] Those requirements have not been satisfied in this case. There is no specific evidence about the visa and disclosure requirements, or the likelihood that travel to those countries would be precluded. Speculative future travel plans will not ordinarily be sufficient to justify a discharge without conviction.11
[22] Regardless, I find that the consequences of a conviction are appropriate to address the nature of the offending, and the consequent adverse impacts on Mr Tiller are not out of proportion in the circumstances.
[23] Overall, I agree with the analysis of the sentencing Judge and find no error in the Judge entering convictions or in the Judge applying the principles found in s 107 of the Sentencing Act:
(a)The offending was at the lower end of moderate in terms of gravity.12
(b)A consequence of the convictions is that travel will be more difficult.13 It may be more difficult to obtain appropriate visas and authorisations, and many countries may automatically exclude entry.14 In terms of occupational consequences, I agree with the sentencing Judge that the convictions may make gaining employment more difficult, but there is insufficient evidence to substantiate that Mr Tiller cannot gain employment because of the convictions.15
(c)Even taking into account those real risks, the direct and indirect consequences of the convictions do not outweigh the gravity of the offending.16
11 Brunton v Police [2012] NZHC 1197 at [16].
12 R v Tiller, above n 1, at [35].
13 At [43].
14 At [42]–[43].
15 At [44].
16 At [45].
[24] Therefore, the appellant has failed to establish that a miscarriage of justice has occurred.
[25] For completeness, I also consider whether the sentence of 12 months’ supervision on all charges is manifestly excessive or wrong in principle.17 The appellant has not identified arguments as to why the sentence is manifestly excessive, and in turn the respondent did not address this issue in its submissions. However, the appellant’s notice of appeal records that he also appeals against “the sentence handed down by the judge”.
[26] At sentencing, both parties agreed that the punitive aspect of the sentence had already been met because the appellant spent 86 days in custody and was on restrictive electronically monitored bail conditions for 237 days. This was recognised by the Judge to be a “significant penalty for these types of charges”.18 Therefore, the Judge considered the only remaining sentencing need was supervision.19 A sentence of supervision is a less restrictive outcome than other community-based sentences of intensive supervision and community detention, but more restrictive than a fine or reparation.20 The Judge considered the option of an emotional reparation payment inappropriate due to the appellant’s personal circumstances including likely not being in a position to make payments.21
[27] A sentence of supervision may be imposed only if the court is satisfied that it would reduce the likelihood of further offending through supervised rehabilitation and reintegration of the offender.22 The appellant’s sentence of supervision was clearly not imposed for an invalid purpose, such as a type of penalty.23 Rather, the Judge recognised the appellant had already been subject to serious restrictions and the sentence of supervision was focused on his rehabilitation, with conditions addressing
17 Criminal Procedure Act 2011, s 250 requires the Court to allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed. Generally, the sentence must be shown to be manifestly excessive or wrong in principle: Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]– [35].
18 R v Tiller, above n 1, at [48].
19 At [49].
20 Sentencing Act, s 10A(2)(c).
21 R v Tiller, above n 1, at [50].
22 Sentencing Act, s 46.
23 See Creegan v Police [2015] NZHC 1513 at [31].
drug and alcohol use, non-association with the complainants and provision for any counselling and treatment options that may be appropriate.
Result
[28]Accordingly, the appeal is dismissed.
O’Gorman J
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