Ude-Shankar v Police
[2019] NZHC 1938
•9 August 2019
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2019-406-13
[2019] NZHC 1938
BETWEEN JOSHUA UDE-SHANKAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 August 2019 Counsel:
L A Murdoch for Appellant A R Goodison for Crown
Judgment:
9 August 2019
JUDGMENT OF CHURCHMAN J
[1] The appellant, Mr Ude-Shankar, pleaded guilty in the Blenheim District Court to one charge of assault on a person in a family relationship.1 On 8 July 2019, Judge Tuohy declined his applications for discharge without conviction under s 106 of the Sentencing Act 2002 (the Act)2 and for name suppression.3 He was sentenced to nine months’ supervision.
[2] Mr Ude-Shankar appeals his conviction and sentence on the basis that the Judge:
(a)erred by taking into account irrelevant considerations and not taking into account relevant considerations; and
1 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
2 New Zealand Police v Ude-Shankar [2019] NZDC 13127.
3 New Zealand Police v Ude-Shankar [2019] NZDC 13587.
UDE-SHANKAR v NEW ZEALAND POLICE [2019] NZHC 1938 [9 August 2019]
(b)erred in his application of law.
[3] Mr Ude-Shankar appeals the refusal to grant him name suppression on the basis that the Judge:
(a)erred by not taking into account the effect on him and on the victim and her family of publication;
(b)was wrong in finding that publication would not cause him extreme hardship.
[4]The Crown opposes the appeal.
Background
[5] At the time of the offending, Mr Ude-Shankar and the victim had been in a relationship for about eight months.
[6] In the early hours of 30 March 2019, Mr Ude-Shankar and the victim got into an argument. He became aggressive and verbally abusive towards the victim. Fearing for her safety, she punched him and escaped to a nearby address.
[7] Occupants of that property accompanied the victim back to the address where they confronted Mr Ude-Shankar. He got into a fight with them while the victim went to her bedroom and tried to sleep.
[8] Mr Ude-Shankar entered the bedroom, approaching the victim where she lay in bed and punching her hard about eight times to her torso. At the first opportunity, the victim fled the house.
Fresh evidence
[9] Mr Ude-Shankar seeks leave to adduce further affidavits from himself, his partner and her mother on the basis that it is in the interests of justice for the High Court to receive this evidence and it satisfies the principles for the admission of fresh evidence.
[10] The respondent opposes the admission of the three affidavits on the basis that the evidence is not “fresh” as it could have been put before the District Court and, in fact, some of it was in the form of attachments to defence sentencing submissions.
[11] Section 335 of the Criminal Procedure Act 2011 (the CPA) provides that an appeal Court may receive new evidence in respect of an appeal against conviction or sentence. The proposed evidence must also be sufficiently fresh and credible, and cogent.4 In terms of a decision not to grant name suppression, the High Court retains an inherent jurisdiction to receive fresh evidence, such discretion to be exercised sparingly and only when the interests of justice require its admission.5
[12] It is my view that these affidavits do not contain information that was not or could not have been before the Court at sentencing and, therefore, are not sufficiently fresh to warrant admission. Indeed, similar material to some of that sought to be advanced actually was before the lower Court. This is not a case where it would be appropriate to grant leave for the filing of further evidence.
Discharge without conviction
Approach on appeal
[13] An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.6 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:7
(a)by virtue of a material error by the sentencing judge in entering a conviction; or
(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Act.
4 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2
NZLR 273 at [116]-[118]; R v Baker [1976] 1 NZLR 419 (CA).
5 R v Ratu [2013] NZHC 3085 at [24].
6 Jackson v R [2016] NZCA 627 at [6]-[16].
7 At [12].
District Court decision
[14] The Judge observed that Mr Ude-Shankar had some previous convictions, most for drink-driving but one for common assault and another for assault on Police both from 2009. He had been sentenced to a penalty as high as community detention for his last drink driving offending in 2015.8
[15] It was noted that Mr Ude-Shankar, who has a qualification in social work, had engaged in anger, violence and alcohol counselling, along with restorative justice which had been successful in that his relationship had continued and he had his partner’s support, as well as that of her family.9
[16] The Judge then considered the requirement that the Court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.10 First looking at the gravity of the offending, the Judge said:
[7] The first thing I have to say is that this is a moderately serious offence, if not a serious offence. As I said just a few minutes ago to a man I sentenced to eight months’ imprisonment for the same offence that you are facing albeit with slightly more serious facts, the community takes offending by way of violence against women very seriously and the whole of society is trying to stop it. So the offence is at a reasonably substantial level, particularly when one puts it against the fact that you have convictions already for violence.
[17]He continued:
[8] As to the direct and indirect consequences of conviction, it is said that if this event ends as a conviction that you will be barred from employment in the area in which you have a qualification. I am not satisfied that you would be barred from all employment in that field. The field of youth work and the like sometimes has people engaged in it who have been through the mill themselves.
[9] It will without doubt make it more difficult to obtain work in that area and probably will close off some employers all together. On the other hand, it is only right that people who are employing others in social work fields ought to know the background of those that they are employing. That is the major consequence which is suggested.
8 New Zealand Police v Ude-Shankar, above n 2, at [3].
9 At [4].
10 At [6].
[18] The Judge was not satisfied that the consequences of conviction would be out of all proportion to the gravity of the offending, which he considered to be serious and deserving of conviction, and accordingly did not accede to the s 106 application.11
Relevant law
[19] Section 106 of the Act provides that if a person who is charged with an offence is found 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”.
[20]The application of s 106 is guided by s 107 which provides as follows:
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.
[21] As stated by the Court of Appeal in R v Hughes, s 107 “provides a gateway through which any discharge without conviction must pass”.12 The Court noted that such an appeal is not an appeal against the discretion of the Court:13
[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 ... 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.
[22] The approach to be adopted by an appeal court in relation to s 107 has been summarised as:14
[28] An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court
11 At [10]-[11].
12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
13 At [11].
14 Denden v Police [2014] NZHC 1814 (citations omitted).
gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.
[23]More recently, the Court of Appeal, speaking of the s 107 test, said:15
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(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.
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 consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
[24] In terms of the gravity of the offence, the Court of Appeal has summarised the correct approach to take as follows:16
[W]hen 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, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[25] As to the consequences of a conviction, Randerson J in Iosefa v Police described the correct approach to assessing the consequences of conviction as follows:17
[I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if
15 Prasad v R [2018] NZCA 537 (citations omitted).
16 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).
17 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; affirmed in DC v R
[2013] NZCA 255 at [43].
the Court is satisfied that there is a real and appreciable risk that such consequences would occur.
[26]He continued:18
However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence.
[27]The Court of Appeal recently confirmed in R v Smyth that: 19
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
[28] Once the Court is satisfied the disproportionality test has been met pursuant to s 107, it may then determine whether to order the discharge.20
Discussion
[29] Counsel for Mr Ude-Shankar, Ms Murdoch, submits that the Judge made a material error when he failed to take into account all of the mitigating factors relating to the offending and to Mr Ude-Shankar personally at the first stage of assessing gravity. She contends that insufficient weight was placed on factors such as his remorse, the rehabilitative steps taken, and the victim’s views. While it is accepted that he had previous convictions, she argues that this was Mr Ude-Shankar’s first ever family violence conviction and counsel was not given the opportunity to make oral submissions on why this new family violence conviction would set him back significantly more than his existing convictions. Ms Murdoch also complains about the Judge referring to another man he had sentenced that day, submitting that it was wrong to refer to another case when assessing the gravity of the offence. She submits that the Judge erred when he assessed the gravity of the offence as “moderately serious if not serious” given these mitigating features.
18 At [35].
19 R v Smyth [2017] NZCA 530.
20 Z (CA447/2012) v R, above n 9, at [21]; R v Hughes, above n 6, at [8]-[12].
[30] It is my view that the Judge made no error in assessing the offending as moderately serious, Mr Ude-Shankar having punched the victim eight times in the torso following an argument. In arriving at this assessment, he had noted Mr Ude- Shankar’s engagement in both restorative justice and counselling and that he had the support of his partner and her family. Referring to the other man he had sentenced that day was not taking into account an irrelevant matter, but served to bring home to Mr Ude-Shankar that violence against women was an issue taken seriously by society and the charge he faced could result in a sentence of imprisonment. Mr Ude-Shankar has previous convictions, some of a violent nature and, in the Provision of Advice to Courts report his risk of harm to others was assessed as medium. These previous convictions, even if they did not occur in the context of domestic violence, were of relevance and needed also to be taken into account.
[31] Ms Murdoch also contends that the Judge erred in his evaluation of the consequences of conviction, concluding that this conviction would not bar Mr Ude- Shankar from work in social services. She argues that, while this might have been true of his previous convictions, this conviction is different due to it having occurred recently and being one for family violence. Social workers and those working with young people are often required to undergo stringent background checks and Ms Murdoch submits there was sufficient evidence before the Judge to determine that there was a real and appreciable risk that this conviction would impact on Mr Ude- Shankar’s ability to gain employment in his field of work.
[32] In this case, the Judge acknowledged that there might be some difficulty for Mr Ude-Shankar in taking up his chosen profession, although he was not satisfied that the conviction would necessarily bar him from doing so. He noted that employers of social workers had an interest in knowing the background of those they are employing. Social workers, like teachers and police officers, work with vulnerable people and it is important that they are worthy of the trust placed in them. Mr Ude-Shankar will, however, be able to discuss his conviction with potential employers, and explain to them his history and his rehabilitative efforts. This would also be the case if, in the future, he wishes to be registered as a social worker and the Social Workers’ Registration Board is required to determine whether he is a “fit and proper” person to practise.
[33] As a result of recent amendments to the Social Workers Registration Act,21 it seems that the Board can have regard to a discharge without conviction. A conviction would not automatically mean that he could not, at some point in the future, pursue a career as a social worker. In circumstances where someone who is convicted of a criminal offence is also a member of a professional body, there are a number of cases where the Courts have rejected an application under s 106 saying that the fitness of the person to be a member of the profession is a matter best left to the professional body.22
[34] While there is a real and appreciable risk that an employer would choose not to employ someone with a conviction, particularly with a family violence conviction, this is, however, an ordinary consequence of a conviction, and is not out of all proportion to the gravity of his offending. It is my view that the Judge was correct to the satisfied that the s 107 disproportionality test had not been met. There has been no miscarriage of justice.
Name suppression
Approach on appeal
[35] An appeal against a refusal to make a name suppression order is an appeal against the exercise of a discretion.23 In such an appeal, the appellant must establish that the Judge acted on some wrong principle; ignored some relevant matter; took into account an irrelevant matter; or was plainly wrong.24
District Court decision
[36] The Judge noted that it was a very late application for name suppression, Mr Ude-Shankar having already been before the Court on this matter on a number of occasions, and he determined that it did not reach the statutory threshold:25
For an offender’s name to be suppressed, it requires that extreme hardship be shown, and I do not think that publication of your name, with a conviction of
21 Social Workers Registration Act 2003, s 50.
22 See Enache v New Zealand Police [2015] NZHC 2586 at [37], R v Smyth [2017] NZCA 530.
23 R v B (CA459/06) [2008] NZCA 130, [2009] 1 NZLR 293 at [70].
24 Saggers v R [2012] NZCA 560 at [25].
25 New Zealand Police v Ude-Shankar, above n 3, at [1].
this nature, does amount to extreme hardship. If it does for you, it does for everyone, so I do not think that it qualifies.
[37] A permanent order for suppression of the complainant’s name was made, along with an interim suppression of Mr Ude-Shankar’s name pending filing of this appeal.26
Relevant Law
[38] Section 200 of the CPA, which sets out the law relating to suppression, relevantly 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
…
(c) cause undue hardship to any victim of the offence; or
…
[39] A very high level of hardship following from publication of the identity of the defendant must be established,27 something well beyond the consequences ordinarily associated with publication of the defendant’s name.28 In the context of what is now s 200(2) of the CPA, “likely” has been interpreted as an “appreciable risk”.29
[40] The Court of Appeal has confirmed that s 200 involves a two-stage analysis.30 One of the grounds in s 200(2) must first be established and only if one of the grounds
26 At [3] and [5].
27 Bond v R [2015] NZCA 488 at [33]; R v N [2012] NZHC 2042 at [21]; Robertson v Police [2015] NZCA 7 at [48].
28 DP (CA418/2015) v R [2015] NZCA 476, [2016] 2 NZLR 306 at [6].
29 R v W [1998] 1 NZLR 35 (CA) at 40.
30 Fagan v Serious Fraud Office [2013] NZCA 367 at [9]; Robertson v Police, above n 6, at [39]- [42].
is established does a Judge proceed to the second discretionary stage, where the competing interests of the public and the applicant are weighed.
Discussion
[41] Ms Murdoch submits that the Judge erred by ruling that the victim would not be impacted by Mr Ude-Shankar’s name being published, as he failed to consider her views on name suppression or how her family would be impacted if future employers saw the publication and refused Mr Ude-Shankar work on this basis. It is argued that the victim will be affected by others knowing that her partner assaulted her and it was an error for the Judge to simply grant her name suppression as she will be easily identified, as will her children.
[42] Ms Murdoch further submits that the Judge failed to consider Mr Ude- Shankar’s childhood trauma and placed too much weight on there having previously been no suppression.
[43] The threshold for extreme hardship is very high and, while some hardship would naturally follow from publication, no information from a mental health expert has been provided to support any conclusion that his childhood trauma would result in hardship that would reach the threshold. Furthermore, there has been no suggestion that Mr Ude-Shankar would lose his current employment were he to be named. That there had previously been no suppression of his name in this matter was a factor that was of relevance, and the Judge cannot be said to have attached too great a weight to that factor.
[44] As to the victim’s views, they are not determinative and, while it is acknowledged that she might suffer some embarrassment if members of the public connect her to Mr Ude-Shankar’s offending, this is not such as to reach the threshold of undue hardship. The impact on her family in terms of Mr Ude-Shankar having difficulty obtaining work in the future is, unfortunately, a difficulty faced by most families in this situation.
[45] It is my view that the Judge was correct to conclude that the threshold of extreme hardship was not made out and therefore did not err in refusing to grant name suppression to Mr Ude-Shankar.
Result
[46]For the reasons given above, this appeal is dismissed.
Churchman J
Solicitors:
O’Donoghue Webber, Nelson for Crown
Counsel:
L A Murdoch, Barrister, Blenheim for Appellant
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