Tupu v Police
[2014] NZHC 743
•9 April 2014
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2014-412-000001 [2014] NZHC 743
GABRIELLE ETEVISE TUPU
v
NEW ZEALAND POLICE
Hearing: 2 April 2014
Appearances: B P Kilkelly for Appellant
CER Power for Respondent
Judgment: 9 April 2014
JUDGMENT OF DUNNINGHAM J
[1] This is an appeal against a decision of the District Court given on
20 December 2013 declining to discharge the appellant, Ms Tupu without conviction, under s 106 of the Sentencing Act 2002.
[2] The notice of appeal asserts that the Judge erred in finding that the consequences of conviction would not be out of all proportion to the gravity of the offence, and also in not exercising his discretion to discharge the appellant without conviction.
Background
[3] The appellant was charged with injuring with intent to injure under s 189(2)
of the Crimes Act 1961.
[4] The incident occurred at about 4.00 am on Sunday 25 August 2013, when she and a co-offender were in a bar in The Octagon, Dunedin. The appellant and co-
TUPU v NEW ZEALAND POLICE [2014] NZHC 743 [9 April 2014]
defendant were sitting with the victim when words were exchanged and as a result both the appellant and her co-defendant hit the victim. The victim defended herself and the appellant used both hands to push the victim backwards into her seat and against the wall. The appellant then grabbed the victim by her hair and dragged her forward onto the floor, where the victim lay face down. The appellant then held the victim by her hair, lifted the victim’s head up and shoved her face into the floor. Although both the appellant and her co-offender were then restrained, further aggression ensued where the appellant grabbed the victim’s hair and struck the victim several times in the back of the head. The appellant was then restrained for a second time, but she broke away, grabbed the victim by the hair for a third time and struck the victim in the back before being restrained again.
[5] As a result of the assault, the victim received a number of injuries. She had a large patch of hair torn from the fringe area of her head and her whole scalp was left sore. She had sore fingers from fingernails being broken and a numb right middle finger. Her nose and temple were sore and she suffered a bruise to the left side of her lower lip. She also suffered scrapes and bruises to her knees.
[6] The victim suffered a number of effects from the offending in addition to the injuries she suffered. She experienced a fear of persons of Pacific Island descent, panic attacks, anxiety and sleep deprivation. She suffered self-esteem and confidence issues and did not want to be touched. She also suffered financial costs because she had 10 days off work as a result of the assault and embarrassment at being assaulted when she was 31 years of age.
The District Court decision
[7] The District Court Judge noted that the offending itself was serious and had some aggravating features which meant it would fall at least at the top end of band 1 identified in the case of Nuku v R,1 but, potentially, in band 2. This is because there were two people involved in the attack, it was a violent attack involving several hits to the head and the appellant broke free from restraint twice to continue the attack.
[8] Weighed against that, the District Court Judge acknowledged that the appellant was remorseful and that there was “no question about that”. She had supplied references which demonstrated that she was otherwise of good character and had no previous convictions. She had also attended a restorative justice conference from which there was a positive outcome. At the end of the conference the victim accepted that the appellant was very remorseful, that she had made a mistake and that her actions were out of character. The victim supported the appellant’s desire to join the Air Force and hoped that she would be able to continue with her application and be accepted into the Air Force.
[9] The appellant’s affidavit evidence said that she accepted full responsibility for her actions in this offence. She had put matters right with the victim and her family to the very best of her ability and the victim had accepted her remorse and her actions as being genuine. She concluded her affidavit with a statement that “this will absolutely be my first and last appearance in a criminal Court”.
[10] The Judge then considered submissions made on behalf of the appellant in support of saying that the consequences of a conviction would be out of all proportion to the gravity of the offence. These focussed on the fact that she had been accepted for entry to the Royal New Zealand Air Force, subject only to passing her final fitness assessment in January.
[11] The appellant had told the recruitment co-ordinator about the assault charge and had been informed that a conviction for this offence would mean an immediate minimum stand-down period of 12 months from the last day of any punishment before any security vetting could begin. She was advised that it may be unlikely that she would get a security clearance with a conviction for injuring with intent to injure. That would mean her childhood dream of joining the Air Force would no longer be possible. Furthermore, even if she did receive a security clearance, it is unlikely that she would receive any overseas posting with the conviction.
[12] Balancing the gravity of the offence against the consequences of conviction, the Judge concluded that any consequences of conviction on her Air Force career
would not be disproportionate given the gravity of the offending. Her application for discharge without conviction was accordingly declined.
The Sentencing Act
[13] Under s 106(1) of the Sentencing Act 2002 the Court has a discretion to discharge without conviction a person who has been found guilty of, or who has pleaded guilty to, an offence unless the applicable statue requires the imposition of a minimum sentence. Section 106(2) provides that a discharge under s 106 is deemed to be an acquittal.
[14] The test which must be satisfied before a grant of discharge without conviction may be considered is contained in s 107. It provides:
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 for the gravity of the offence.
[15] Those mandatory requirements require consideration of three factors: (a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction;
(c) whether those consequences are out of all proportion to the gravity of the offence.
[16] The Court of Appeal discussed the application of the s 107 test in Z v R.2
There the Court held that 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 determined they are out of all proportion, it must still consider whether it should
exercise its residual discretion to grant a discharge (although it would be a rare case where a Court would refuse to grant a discharge in such circumstances).3
[17] Adopting the Z v R approach, I now turn to consider the present facts in accordance with the three steps previously identified.
Gravity of the offence
[18] The District Court Judge rightly considered that the gravity of the offence was high. He noted that it was a serious charge carrying a maximum of five years imprisonment, although correctly recorded that that, in itself, did not necessarily establish the seriousness of the offending or the appellant’s level of culpability. More importantly, the summary of the facts revealed serious offending where a starting point would be a sentence of imprisonment, although other sentencing options might be considered when the totality of circumstances was considered.
[19] Against that, I take into account the fact that the appellant is genuinely remorseful, that she is otherwise of good character and that there was a positive outcome following a restorative justice conference. She had paid reparation totalling
$650 to the victim and her victim supports her application to be discharged without conviction.
Consequences of conviction
[20] As already alluded to, the main consequence of conviction is the risk to the appellant’s ambition to make a career in the Air Force. The certain consequence of a conviction is that her acceptance into the Air Force would be deferred until
12 months from the date of completion of her sentence of 300 hours community work.
[21] The more severe consequence, although the less certain to eventuate, is the impact on her desire to join the Air Force. A conviction is not necessarily an absolute barrier to her being accepted into the Air Force, although it would make it unlikely she would ever receive an overseas posting.
[22] I can take into account a likely but not inevitable consequence of conviction. It has previously been acknowledged that a sentencing Judge does not have to be satisfied that the direct or indirect consequences will inevitably or probably occur. It is sufficient if he or she is satisfied that there is a real and appreciable risk of such consequences.4
[23] The Judge also placed some weight on the importance of the Air Force knowing about the incident, so that it could make an informed decision as to whether the appellant was an appropriate person. In that regard he says:
[21] I take the view that it is not for the Court to decide whether you are accepted into the Air Force or not. That really is for the Air Force and there will be processes to deal with this type of situation. Given that you are wanting a career in the Forces, I would have thought it absolutely essential that the Forces, and particularly here the Air Force, know everything about those applying to join. You will be part of the ‘Defence Force’ and it is for the Air Force to decide whether you are an appropriate person. If I was to discharge you without conviction, that might mean that the Air Force did not need to fully consider all the circumstances for you in determining whether you should be accepted into the Air Force or not.
[24] However, as Mr Kilkelly orally submitted to the Court, the appellant has been open with the Air Force about the incident and her potential for conviction. She has not endeavoured to conceal this from the Air Force, and if they do finally accept her, it will be with the knowledge that this incident has occurred. It is for the Air Force to make a judgment as to whether that impacts negatively on her application.
Evaluation
[25] The decision as to whether the test under s 107 is met is a finding of fact which can be reconsidered on appeal having regard to the evidence. It is only then, as was said in Blythe v R,5 that the Court may proceed to consider exercising its discretion to discharge without conviction under s 106.
[26] While the District Court Judge has carefully reviewed the key aggravating and mitigating circumstances of the offence and the offender, I consider he has
4 DC v R [2013] NZCA 255 at [43].
5 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [12].
incorrectly placed weight on the need to convict to ensure that the Air Force is properly informed of the circumstances of this incident. I am satisfied that the full circumstances of this matter have been drawn to the attention of the Air Force. I also consider the outcome of the restorative justice conference was significant and did much to ameliorate the gravity of the offending, but played little role in the Judge’s assessment.
[27] I also think that the Judge understated the consequences of a conviction. First, there is the certain consequence of a year’s stand-down before joining the Air Force. In that time, the appellant is working in unskilled jobs (she is currently at the freezing works) and the start to a potential career with the Air Force is delayed, not just for a year, but also for the period of time it will take to complete 300 hours community service.
[28] While it is not certain that the appellant will fail to get into the Air Force if she is convicted, that remains a real prospect, and there is also the very real prospect that she will be precluded from overseas postings if she is convicted. That is a significant and ongoing adverse consequence of conviction.
[29] Accordingly, I agree that the consequences of conviction are disproportionate to the gravity of the offending, albeit the offending was serious.
[30] I am satisfied that the offending was a one-off event in the appellant’s life, she is otherwise of good character, and the risk of losing a career opportunity that she has been working towards for some time would be a direct consequence out of all proportion with the gravity of the offending.
[31] For these reasons, I conclude that the appeal should be allowed. The appellant is discharged without conviction and an order is made quashing the conviction and the sentence of 300 hours community work which was imposed in the District Court on 20 December 2013.
Solicitors:
B P Killelly, Barrister, Dunedin
Wilkinson Adams, Dunedin
6