Tiwari v Police
[2014] NZHC 2509
•14 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000133 [2014] NZHC 2509
BETWEEN AJAY KUMAR TIWARI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 July 2014 and 6 October 2014 Counsel:
V D Heather for the Appellant
W R Potter for the RespondentJudgment:
14 October 2014
JUDGMENT OF DUFFY J
[Re Appeal Against Conviction and Sentence
and Refusal to Grant Name Suppression]
This judgment was delivered by Justice Duffy on 14 October 2014 at 10.00 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: V D Heather, Auckland
Meredith Connell, Auckland
TIWARI v POLICE [2014] NZHC 2509 [14 October 2014]
[1] The appellant pleaded guilty in the District Court to a charge of common assault on his partner. He sought, but was unsuccessful in obtaining a discharge without conviction. He now appeals against that refusal. He also makes a fresh application for permanent name suppression.
[2] The appellant sought in the context of the appeal against conviction to withdraw his guilty plea on the ground that it was entered in error. The appeal was adjourned part-heard. When the hearing resumed, the appellant’s counsel advised the Court that this aspect of the appeal was abandoned.
[3] The appeal and the application for permanent name suppression are opposed.
Facts of offending
[4] The appellant was initially charged with male assaults female, under s 194 of the Crimes Act 1961. Later, the charge was amended along with the summary of facts to the offence of common assault under s 196 of the Crimes Act. The maximum penalty for this offence is a term of imprisonment of one year.
[5] The assault was the outcome of an argument between the appellant and the victim at their home address. The appellant discovered that the victim had cut their eldest son’s hair. In the appellant’s view, this was against their religion. The victim waved the defendant away with her hands. The appellant grabbed the victim’s hands and pushed her backwards. She then pushed back. In the process of pushing her away, the appellant’s hand connected with the victim’s left cheek. The victim fell into the couch, hitting her face on the wall behind the couch. As a result of the assault, the victim received swelling and bruising to her left cheek. The victim left the family home and sought help at a neighbouring house.
Personal circumstances
[6] The appellant is 35 years of age; he has no previous convictions. He and the victim have three young children, the eldest of whom is aged five years. He is self- employed as a Hindu priest and, in this role, he works through, or with the
Sanskrit Yoga and Jyotish Trust. He was born as a Brahman, which is a member of the Hindu priestly cast. As a Brahman, the appellant fulfils a societal and religious role and is seen to be a conduit for God. He is expected to embody the values of the Hindu faith and their character. In his role as a Hindu priest, he carries out weddings and funerals, counsels members of the Hindu community, and works to instil good character and cultural values in his community. Members of the Hindu community come to him for these services because of the faith, trust and respect that they have in him.
District Court decision
[7] Judge Winter noted the appellant’s assurances to the Court that this was an isolated incident resulting from exceptional and unexpected circumstances. The Judge was advised that the victim supported the application for a discharge without conviction. The Judge referred to the personal circumstances of the appellant, which are outlined in the judgment. The appellant is self-employed as a Hindu priest and runs the Sanskrit Yoga and Jyotish Trust.
[8] In considering aggravating and mitigating factors, the Judge disagreed with counsel that the assault was at the low end of the scale of gravity. In the Judge’s view, it was an aggravating factor that the appellant lost the discipline that his faith had instilled in him and so lost control of himself.
[9] The Judge then considered the direct and indirect consequences of a conviction and found as follows. First, a conviction would not act as an automatic bar to a career path in the Hindu priesthood. Secondly, the Judge was not satisfied that a conviction would prevent people in the Hindu community from engaging his services. The Judge took the view that faithful members of the Hindu community would consider the nature of the offence and all the surrounding circumstances. They might prefer counselling and instruction from a priest who had lost the discipline of their faith and recovered from that. For these reasons, the Judge concluded that he was not satisfied that the consequences of a conviction presented by the appellant were realistic.
[10] Further, the Judge noted that, notwithstanding the appellant’s good character, his devotion to his faith, his regret and remorse, he still failed to appreciate the significance of a domestic violence assault. The application for discharge without conviction was refused. The Judge was not satisfied that the consequences of a conviction would outweigh the seriousness of the offending.
[11] The appellant was convicted and discharged on payment of costs of $130. The Judge noted that the application for permanent name suppression was withdrawn.
Updating evidence
[12] At the first hearing of the appeal on 21 July 2014, the appellant’s former counsel, Kate Stone of the Public Defence Service, gave evidence as a witness for the respondent. This evidence mainly related to the circumstances in which the appellant was advised to plead guilty, which was the now abandoned ground of appeal relating to the withdrawal of the guilty plea. In the course of Ms Stone’s evidence, she referred to the attempts that she had made to obtain independent verification of the impact on the appellant’s role as a Hindu priest if a conviction was entered against him. She explained that it was with some difficulty that she obtained a letter from the President of the Hindu Council of New Zealand Incorporated. This letter, which is dated 1 April 2014, states that priests are not required to be registered with any Hindu organisation in New Zealand in order to be able to be registered as priests. Nor is there a registration body in India. There is no process to stop a convicted priest from practising in New Zealand, though the President notes that once the news of the conviction spreads, some people will stop using the services of a convicted priest. The President also opines in the letter that convicted priests should be stopped from practising.
[13] The appeal hearing in July was adjourned to enable the appellant’s new counsel to provide the Court with further independent evidence on the impact of a conviction on his prospects as a priest. When the hearing resumed, there was affidavit evidence from the appellant and the victim.
[14] The victim has sworn an affidavit in which she deposes that members in the Hindu community are aware that the appellant has “been to Court”. She says that since the Court hearings, the appellant has earned less income as a priest. She described him as appearing unwell and distressed and not his usual confident self.
[15] The victim has attached to her affidavit a letter written by her in which she essentially outlines a quite different account of events to that set out in the summary of facts to which the appellant entered a guilty plea. The victim now says that she and her family members were at fault. She describes the argument as one where she pushed the appellant, who was trying to calm her down. In this account, the appellant makes no assault on her at all. She says that she ran to a neighbour’s house, rang her brothers, who “forced” her to call the police. She attributes ill- motivations on her brothers’ part towards the appellant and suggests that they instigated the police involvement in order to harm the appellant. The victim now asserts that her statement to the police about the offending was false and the result of her brothers’ influence. Interestingly, none of this is stated in the affidavit. Since the appellant has sworn an affidavit, she could have outlined her recanting of the original complaint to the police in the affidavit. As matters stand, the account in her letter is not sworn testimony.
[16] I place no weight on the victim’s affidavit and attached letter. Her recent account that would have the appellant committing no assault on her is in the nature of recanted evidence. It was not subjected to the usual tests for recanted evidence because when the appellant’s counsel was asked if the victim was recanting her account of the assault on her to support the withdrawal of the guilty plea, I was advised that this aspect of the appeal was no longer being pursued. Had it been pursued, the police would have been entitled to interview the victim’s brothers to see what they had to say about her allegations against them. The police would also have been entitled to seek to cross-examine the victim. In the absence of further enquiries, and testing of the victim’s affidavit and attached unsworn written narrative, I am not prepared to rely upon those materials.
[17] Further, now that there is no argument about the guilty plea, it must be treated as an acknowledgment by the appellant that the facts as set out in the summary of
facts are true and accepted by him. It is on this basis that I approach the appeal against the refusal to discharge without conviction.
[18] The appellant has also sworn an affidavit. The affidavit describes a reduction in the family’s income since he was charged with assault. The appellant refers to his work as a priest under the aegis of the Sanskrit Yoga Jyotish Trust. He says that this Trust provides all the requirements for devote Hindus from birth to death. However, there is nothing from the Trust to inform me as to its legal status, its structure, or how many persons, apart from the appellant, are connected with it.
[19] The appellant says that he cannot do anything apart from being a Hindu priest. He gives no explanation for why he cannot obtain other employment. Insofar as this might be a prohibition that is part of the Hindu religion, he provides no independent verification of this fact.
[20] The absence of independent evidence to confirm the appellant’s testimony makes it difficult for me to place any great weight on it. Without such confirmation, it is difficult for me to know to what extent it is a realistic account of the appellant’s present circumstances and those of his family, or whether it is no more than a self- serving attempt to portray himself as suffering adversity that could in fact be ameliorated, if only he took steps to do so.
Grounds of appeal
[21] In the notice of appeal, the appellant appeals his conviction and sentence on the following grounds:
(a) The sentencing Judge made errors of fact both in terms of his description of the facts as set out in the police summary of facts, and in terms of the evidence establishing the consequences of a conviction for the appellant. Both of these factual errors are relevant to the Judge’s determination of ss 106 and 107 of the Sentencing Act 2002, and the application for permanent name suppression pursuant to s 200 of the Criminal Procedure Act 2011.
Appellant’s submissions
Discharge without conviction
[22] The appellant submits that the offence was at the lower end of the scale of domestic violence offending. The Judge inferred that the appellant had struck the victim when the appellant had only pushed her away. The appellant contends that the motion describing the contact between the appellant’s hand and the victim’s cheek was a defensive push, not a deliberate strike. The appellant maintains the position that the victim lost her balance while waving her hands at him, and fell beside the couch, hitting her face against the wall or door. The appellant submits that the incident was not violent.
[23] The appellant submits a number of mitigating features of the offending, including, that the offending involved only a single defensive push, the absence of other related violence behaviour, the injury was minor and that the offending was not premeditated. It was an isolated and a one-off incident.
[24] The appellant submits relevant mitigating factors that he is extremely remorseful, he has undertaken a “living without violence” programme, he has no previous convictions; and has the forgiveness of his wife.
[25] Regarding the direct and indirect consequences of a conviction, the appellant submits that there is a real and appreciable risk that the appellant’s standing in the Hindu community will be adversely affected.
[26] The appellant submits that the Judge did not make a definitive finding as to whether the consequences of a conviction were out of proportion to the gravity of the offence. The appellant contends that the Judge erred in considering the principles of the Sentencing Act under this proportionality assessment. It appears that the Judge gave a decision that combined the independent tests under ss 107 and 106.
[27] The appellant submits that he is a relatively young man with a young family. It would be in the best interests of the family if he continues to provide services to
members of the Hindu community. The appellant submits that the Judge erred in incorrectly assessing the gravity of the offending and failed to give appropriate weight to the direct and indirect consequences of a conviction. Consequently, the Judge failed to exercise his discretion to discharge the appellant without conviction.
Application for permanent suppression order
[28] The appellant submits that the publication of his name will likely result in extreme hardship under s 200(2)(a) of the Criminal Procedure Act. He is the family’s sole income earner. Further, the continued recognition and livelihood of the appellant is inextricably linked to his reputation as a trustworthy, faithful and disciplined person within the Hindu community. The appellant submits that people are less likely to approach the appellant for his services if his name was not suppressed and that the impact of this outweighs the public interest in publication.
[29] The appellant also submits that publication of his name would also cause undue hardship under s 200(2)(c) to the victim. As the appellant is the family’s sole income earner, a decreased work-flow would indirectly affect the victim.
Respondent’s submissions
Discharge without conviction
[30] The respondent says the appeal against the decision not to discharge the appellant without conviction is framed as an appeal against sentence. However, it is properly considered as an appeal against conviction and sentence. The decision under s 107 requires judicial assessment and is subject to normal Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 appellate principles.
[31] With regards to the s 107 test, the respondent submits that there are diverging approaches in the authorities regarding the stage at which the Court should consider the offender’s personal aggravating and mitigating factors.
[32] The respondent submits that the appellant cannot now seek to be sentenced on the basis of other facts that differ to the agreed summary of facts in assessing the gravity of the offence. The respondent submits that the Judge was correct to characterise this offending as low to moderate offending and to consider that the offending took place in the context of a domestic situation.
[33] Regarding the direct and indirect consequences of a conviction, the respondent accepts that the nature of this test involves a degree of speculation. The respondent acknowledges that members of the Hindu community may lose respect for the appellant and may be less likely to engage him as a priest. However, the respondent does not accept that the appellant’s business will be ruined as a consequence of a conviction. The respondent submits that the likely drop-off in business can be built back up by the appellant. Therefore, the consequence of a conviction, resulting in some temporary decrease in the appellant’s business, is proportionate to the seriousness of the offending. Further, the Hindu community should be entitled to assess for themselves whether a person who has committed an assault is suitable to be retained in that capacity.
[34] The respondent submits that for the above reasons, the gateway in s 107 has not been passed.
Name suppression
[35] The respondent says that the starting point on any application for suppression is the presumption of openness in reporting.
[36] The respondent submits that the Court should not be satisfied that the appellant will suffer extreme hardship or that the victim will suffer undue hardship. The hardship that the appellant may suffer is not catastrophic, nor will the effect be permanent. Rather, the appellant will have to do some work to re-build his standing in the community. The respondent submits that such consequences are the ordinary result of criminal offending for persons whose business is linked to their reputation. These consequences are not “extreme” or “undue”.
[37] The respondent submits further that a permanent suppression order may have little effect. As the appellant was sentenced on 8 April 2014 and was not granted interim name suppression until 13 June 2014, members of the community may have already found out about the appellant’s conduct. The respondent is not aware of any reporting of this matter in the media and there is no reasons to conclude that there will be media coverage if suppression is not continued. Further, the Hindu community has a public interest to know about the offence in deciding whether to engage the appellant as their spiritual leader. The respondent says that by suppressing the appellant’s name, the Court would be denying the community the chance to assess for themselves the culpability of his conduct and his appropriateness to preside as a priest.
Discharge without conviction
Substantive law
[38] The relevant sections of the Sentencing Act provide:
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. (3) A court discharging an offender under this section may—
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction.
…
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.
[39] It was established in R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at
[11] that:
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani, at para 5. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.
[40] Therefore, an Austin, Nichols approach applies to the s 107 analysis.
[41] The Court of Appeal in A (CA747/10) v R [2011] NZCA 328 at [22] concisely set out the three step approach to s 107 assessments:
[22] Section 107 codifies the common law criteria for a discharge without conviction and requires a three-step process:
(a) Identify the gravity of the offending by reference to the particular facts of the case;
(b) Identify the direct and indirect consequences of a conviction; and
(c) Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending.
[42] I will consider each of the three factors in turn.
Analysis
Gravity of the offending
[43] As described in the summary of facts, the actual assault on the victim was at the low end of the scale of seriousness for common assault. However, there are aggravating factors. The assault occurred in the victim’s home, where she should have felt safe from such attack. The victim was vulnerable as she was the weaker
party. The assault was obviously distressing and frightening for her at the time because she ran to a neighbouring house for help. So it was not the type of domestic argument where one party slaps or pushes the other but each feels safe enough with the other for them both to remain in the home. These are aggravating factors that raise the level of seriousness. I would, therefore, place the assault at somewhere between the low to mid range of seriousness.
[44] Whilst the appellant has said he is remorseful, his earlier attempt to withdraw his guilty plea and his attempt to make light of the offending through reliance on the victim’s affidavit are indications against the appellant feeling any genuine remorse. Instead, these suggest to me that now the appellant has realised that some members of his community may consider his conduct unacceptable, he feels sorrow for the predicament in which he now finds himself. Apart from the appellant’s previous good character, I see no mitigating factors.
Direct and indirect consequences of a conviction
[45] I accept that the direct and indirect consequences of a conviction are that certain members of the Hindu community might lose respect for the appellant, which will have an effect on his livelihood. Whilst it is foreseeable that this consequence is real, the number of people who will choose not to engage the appellant and the full impact of the resulting consequences cannot be assessed.
[46] In some cases, the consequences of a conviction on the offender’s future employment or career prospects have led to a discharge without conviction. But in most cases, a discharge was given because the offender might not be able to pursue his or her chosen career. For example, in Latimer v R [2013] NZCA 562, a conviction on an 18 year old youth hampered his efforts to gain work experience and an apprenticeship. In Strickland v Police [2013] NZHC 2704, a conviction on a 17 year old youth derailed the process to gain entry into the army due to a 12 months stand-down period.
[47] In this case, a conviction does not prevent the appellant from pursuing a certain career. He is already established in his career, and there is not a disciplinary
body for Hindu priests that might prevent him from further practice. The consequences that he alleges are the normal consequences that are to be expected when one is convicted. Any resulting shame or social embarrassment is a consequence that naturally flows from a conviction.
[48] Further, any reduction in his income as a priest may be able to be alleviated by the appellant undertaking some other employment, even if part-time. I have no evidence that the appellant is unable to work in other occupations, or is in some way prohibited from doing so. He may lack experience and training in other fields of employment but that is not an absolute bar to him seeking other employment.
Proportionality
[49] Whilst there are signs of some temporary decrease in the appellant’s business, that is not to say that this will be permanent. To contrast situations where offenders are completely prevented from pursuing a career path because of a conviction, a conviction in this case does not present similar barriers to the appellant.
[50] The Court in M v Police [2013] NZHC 1101 cautioned against granting a discharge when the consequences are unclear and where there is insufficient evidence to support counsel’s assertion as to the consequences. In that case, Allan J held there was insufficient material to support a finding that the consequence of a conviction was out of proportion to the gravity of the offence. There was nothing to support the assertion that a conviction would ruin the appellant’s chances to travel to England, and that she would not be able to obtain an employment position that she had accepted. In the present case, there is nothing that I can see that would have a permanent detrimental impact on the appellant’s role as a priest.
[51] Accordingly, I consider that the consequences of the conviction are not out of proportion to the gravity of the offence. It follows that the appeal against the refusal to discharge without conviction is dismissed.
Name suppression
[52] The relevant sections of the Criminal Procedure Act provides:
200 Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
(b) cast suspicion on another person that may cause undue hardship to that person; or
(c) cause undue hardship to any victim of the offence; or
(d) create a real risk of prejudice to a fair trial; or
(e) endanger the safety of any person; or
(f) lead to the identification of another person whose name is suppressed by order or by law; or
(g) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(h) prejudice the security or defence of New Zealand.
(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person's next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims' Rights Act 2002.
[53] The discussion above relating to the discharge without conviction is also relevant here. The reasons behind why the appellant seeks name suppression and a discharge without conviction are the same. The appellant is concerned about his tarnished reputation and the consequent impacts of that on his family’s livelihood.
[54] The starting point is a prima facie presumption in favour of openness in reporting: R v Liddell [1995] 1 NZLR 538 (CA).
[55] Under the ground of “extreme hardship”, a very high level of hardship needs to be shown and that “plainly, it must be something out of the ordinary”: R v Wilson [2014] NZHC 32 at [27]. The Court must consider whether the effect of publication is excessive, given the nature of the offence and the specific facts of the case.
[56] For similar reasons to what I have set out above relating to the consequences of a conviction, I consider that the high threshold of “extreme hardship” is not met in the appellant’s circumstances.
[57] With regards to “undue hardship” to the victim, Henry J in Dalton v Auckland City: Porter v Auckland City [1971] NZLR 548 (SC) at 550 said that “undue hardship” connotes “excessive or greater hardship than the circumstances warrant”. Though the case was decided in another context, this statement is relevant and helpful when it comes to consider this ground for suppression.
[58] Again, I consider that the hardship that the appellant’s family will suffer does not go beyond what the circumstances warrant. There are no special circumstances that would justify rebutting the presumption against name suppression.
[59] Lastly, the respondent’s submissions on this issue have merit. The appellant’s application for permanent name suppression was withdrawn in the District Court before Judge Winter. An interim name suppression order was put in place by Woolford J on 13 June 2014. Therefore, if certain members of the Hindu community wanted to find out about the conviction, they would have had their chance already.
Result
[60] The appeal is dismissed.
[61] The application for permanent name suppression is dismissed.
Duffy J
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