W v Police

[2019] NZHC 534

W HAS NAME SUPPRESSION PURSUANT TO JUDGMENT DATED 27 MAY 2019 W v POLICE [2019] NZHC 1165.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2018-454-20

[2019] NZHC 534

BETWEEN

W

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	19 March 2019 via AVL
Counsel:	L C Ord and S W O Campbell for Appellant S P Poulton for Respondent
Judgment:	19 March 2019
Reasons:	21 March 2019

JUDGMENT OF MALLON J

Introduction

[1]    W  pleaded   guilty  to   a   charge  of   breaching  a  protection  order.1   On  18 November 2018, she was convicted and discharged in the District Court after unsuccessfully applying for a discharge without conviction.2 W now appeals against the decision to reject her application for a discharge without conviction.

[2]    After hearing from counsel, I allowed the appeal with reasons to follow. These are my reasons.

1      Domestic Violence Act 1995, ss 19(2)(c) and 49(1)(b) and (3); maximum penalty three years’ imprisonment.

2      New Zealand Police v W [2018] NZDC 20348.

W v NEW ZEALAND POLICE [2019] NZHC 534 [19 March 2019]

Summary of offending

[3]    W was married to the complainant for a year or so, until they divorced in 2011. On 21 May 2013, a final protection order was issued against W for the protection of her former husband.

[4]    A parenting order was made by the Family Court on 10 December 2014, which gave the complainant full-time care of their now ten-year-old daughter. W was allowed supervised fortnightly access to her daughter for a period of seven hours on a Saturday. There was also an allotted hour for phone calls to take place weekly on a Wednesday evening. W was also allowed overnight contact on one night during each school holiday period.

[5]    W moved to Napier in 2016 shortly after the order was made, while the complainant remained in Wellington. Subsequently, W and the complainant voluntarily arranged for W to contact her daughter by phone every Sunday in addition to the allotted hour on Wednesdays.

[6]    On 29 March 2017, W sent a number of unsolicited text messages to the complainant demanding contact with their daughter outside the agreed times. The complainant became fed up with the text messages so sent W a text message informing her of this. Despite this, W continued to send text messages to the complainant. On  7 April 2017, the complainant contacted the police. Police reminded W of the conditions of her protection order and told her to cease the unnecessary text messaging.

[7]    Contrary to the warning from police, W sent a further 38 text messages and made at least two phone calls to the complainant over the next 10 days. In some of these messages W said she was going to report the complainant to the government agency now known as Oranga Tamariki. Some of the text messages were also mildly abusive and claimed that she was mentally unstable. The complainant did not respond to the text messages and made two formal complaints to police.

[8]    When spoken to by police, W admitted sending the text messages, but said that the complainant would not allow her to talk to her daughter and that, as a mother, she was worried.

[9]    W is 41 years old and has no previous convictions. By the time of her sentencing, W had full-time care of her daughter and the complainant had moved to Australia. This followed a second parenting order made in December 2017.

Discharge without conviction

[10]   The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002, only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3

[11]   The Court of Appeal has outlined the following approach to be used to determine an application for a discharge without conviction:4

(a)First, consider all the aggravating and mitigating factors relevant to the offending and the offender.

(b)Second, identify the direct and indirect consequences of the conviction for the offender.

(c)Third, consider whether those consequences are out of all proportion to the gravity of the offence.

(d)Fourth, consider whether the Court should exercise its discretion to grant a discharge.

[12]   The first three steps are matters of fact, not discretion, which require reassessment by this Court pursuant to Austin Nichols & Co Inc v Stichting Lodestar.5 The final step is an exercise of discretion.

3      Criminal Procedure Act 2011, s 107.

4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

5      H (CA680/2011) v R [2012] NZCA 198 at [30]; and Austin Nichols & Co Inc v Stichting Lodestar

[2008] 2 NZLR 141, [2007] NZSC 103.

Basis for the application to the District Court

[13]   W filed an affidavit in support of her application for a discharge without conviction in the District Court. In this affidavit W provided further context to the events that led to the charge.

[14]   She explained that, even though she had moved to Napier, with the complainant’s agreement she had regular telephone and text contact with her daughter and she would see her on weekends and on holidays. This was arranged by text messages between her and the complainant. W says that on the evening of 25 March 2017 she received a text message from her daughter who was upset. W tried to call her but did not receive a reply. Over the next few days she sent text messages to the complainant who told her that he did not appreciate her unnecessary texting. W also contacted the police because she was worried about her daughter. The police contacted the complainant who told them W had been texting him. The police officer told her to be careful.

[15]   W accepts that she then sent another 38 texts to the complainant over the next nine days and twice tried to call him. She said she was “frantic” because she had not heard from her daughter at all and the complainant did not respond either. She sent the messages because she “desperately wanted to see and speak to [her] daughter”.

[16]   W explained that she has a personality disorder but was now in recovery. She said she now only suffered from mild anxiety. She said:

I do not want to make excuses for what I did, but I do think that my anxiety had some impact on my behaviour and I how I reacted. I did become irrational.

[17]   She also noted that, at this time, she was working full time as well as studying and this was stressful. She said this was the first time she has been charged with an offence. This made her anxious and very worried about the consequences for her of a conviction. She had attended a counselling session and had booked another.

[18]   W was due to graduate with a Bachelor of Arts in May 2018. In 2009 she wrote a short film that was produced and funded by Creative NZ. She was working on two

further screenplays. Her plan was to undertake further study including overseas post- graduate study in clinical psychology. A safety check is carried out as part of the clinical psychology programme in New Zealand. To become an intern with the New Zealand Psychologists Board she would be required to provide a record of any criminal convictions and there is a police vetting process.

[19]   W was concerned that a conviction would make it more difficult to pursue these plans. From her research about overseas study in the United States she considered she might not be eligible for a student visa or at the least the process would be more complicated and take longer. The position was similar for overseas study in the United Kingdom.

[20]   W was also concerned that a conviction would make it more difficult to get a job because it was likely that she would have to disclose it. She also considered it might tarnish her reputation as a screen-writer. At that time, she had employment in an administrative role with an IT company.

[21]   The affidavit annexed letters of support from Mr Browning, a Member of Parliament, and from her mother. Amongst other things, they were concerned that a conviction would cause a set-back for her mental health issues and a conviction would serve no positive purpose when W had already learnt from her conduct.

Victim impact statement

[22]   The complainant provided a victim impact statement. He said he found the situation very stressful and upsetting and he wanted W to stop contacting him and to go through the proper channels.

District Court decision

[23]   In considering the application for a discharge without conviction, the Judge noted the approach as follows:

[19]     The Court must consider when looking at these applications the two- stage enquiry set out in Z v R.6 The first stage is the disproportionality test

6      Z (CA447/2012) v R, above n 4.

and there are three steps in that part. Step 1 is the gravity of the offending. Step 2 is the consequence of conviction. Step 3 is the proportionality assessment. The second stage is the exercise of the residual discretion under s 106.

[24]As to step 1, he said:

[20]      Here as I have said the offending is serious because it is a breach of a protection order and the High Court requires me to approach it in the way I have earlier referred to ensure that the Court responds sternly, so it is not a minor matter.

[21]      Although to be fair to [W], the breach is not the worst. It  is at  a  low level but because of the persistence of the calls, it is at the higher of the low level at the risk of sounding contradictory.

[25]   The High Court authority referred to was Morris-Stewart v Police.7 The Judge considered that the Court was required to uphold the integrity of protection orders and to respond sternly to those who flout their force.

[26]   As to step 2, the Judge noted the application was advanced on the basis of the consequences of a conviction on her overseas post-graduate study opportunities and her future employment prospects. He noted that W had now obtained employment and had declined an opportunity to put before the Court her employer’s attitude if she was convicted. The Judge did not discuss the consequences of conviction on her future employment prospects. He said:

[22]      Looking at step 2, the consequences of a conviction. Are there going to be any is the question that presents itself to my mind. [W] by instructing Ms Anderson to not make enquiries of D****** effectively closes off the ability to have that factor from carrying much weight because there is nothing before me one way or another.

[23]      Clearly [W] was correct when she took the employment on and she did not have a conviction. What happens now is a matter for the employer once my decision is reached. Whether [W] tells the employer is a matter for

[W] whatever the outcome.

[24]      Given the cessation of the post-graduate studies, then immigration and travel really cannot be seen to be real consequences because there is no evidence to support the fact that she will be precluded from entry to any country and for that to be looked at there would have to be some evidence that there was some proposed travel.

7      Morris-Stewart v Police [2016] NZHC 1030.

[27]As to step 3, the Judge said:

[25]     Step 3 is the disproportionality assessment.  Do the consequences of  a conviction outweigh the gravity of the offence? In the absence of any real consequences able to be shown, it is difficult to get to a conclusion that, yes, the consequences are such that they do outweigh the gravity of the offence and so there is no ability for me to come to that conclusion.

[28]   When considering the residual discretion, the Judge referred to nine counselling sessions that W had by then attended but, absent information from the counsellor about the success of those sessions, he was left with a concern about whether her behaviour patterns had been modified. The Judge also took into account that W now had the care of her daughter and there had been no further offending. He referred to the usual consequences on travel and future potential employment prospects that anyone who appears in Court faces if convicted. He concluded that he was not prepared to exercise his discretion to grant the application because the integrity of the protection order should be upheld and W’s breach occurred despite a warning from the police.

Further evidence

[29]   W seeks leave to adduce a further affidavit on appeal outlining events following her sentencing in the District Court. The affidavit also contains other information about her mental health difficulties and further research she has done about the consequences of a conviction on her employment prospects. W’s counsel submits the affidavit should be admitted, primarily because it is crucial to the main issues on appeal.8 The Crown does not oppose the admission of this evidence.

[30]   The affidavit discusses W’s borderline personality disorder diagnosis and provides her medical records relating to this. It is not necessary to go into the detail of those records in this judgment. I simply note the records provide details of instances where W has been very unwell. W explains that she is “high functioning” but “can be manic at times” and that she suffers from “hyper-inflated anxiety and stress”, which causes her to “act irrationally at times when [she is] under stress”.

8      Lundy v R [2014] 2 NZLR 273, [2013] UKPC 28 at [116]–[118].

[31]   W says she was acting irrationally when she breached the protection order. She regrets doing so. Since the charge was laid she has engaged counselling and been prescribed anti-anxiety medication. She has recently made an appointment for more help with her mental health.

[32]   W explains that she resigned from her job at the IT company in the weeks following her conviction. She says she was struggling in the role due to lack of training and experience and that she mutually agreed with her employer that it was best for her to leave. She never told her employer about her conviction. She was too embarrassed to do so.

[33]She says:

Not receiving a discharge without conviction, and losing my job …, last year was quite a step back for me mentally. It makes me sick in the stomach and depressed about how this conviction will impact on my ability to get work in the future. I have always had trouble with anxiety and stress, and the conviction definitely exacerbated this, making sleeping difficult, constantly worrying, and even making me nauseous.

[34]   Since leaving her job, W has been on a benefit. She says that she is struggling financially because most of her benefit goes towards rent and the rest goes towards feeding and clothing her daughter and paying back a bank overdraft. She says that she has been going without food on occasion to ensure that her daughter is fed.

[35]   W has been looking into finding employment but is concerned about the impact her conviction will have on her ability to apply and compete for positions. Having completed her Bachelor of Arts majoring in Education at Massey University, she is currently studying towards a certificate in administration and technology at Nelson Marlborough Institute of Technology. She has provided the Court with numerous job advertisements for administrative jobs, all of which refer to the need to have a “clear criminal record” or at least to undergo a “criminal history check”. W has also provided a letter from a recruitment agency confirming that a conviction would effectively bar her from pursing any job opportunities through that agency. W says that the kinds of jobs she is interested in will require her to declare her conviction, which she is incredibly embarrassed about.

[36]   W also explains that her conviction prevents her from being able to attend school events for her daughter as a parent volunteer. She has provided the Court with a letter from her daughter’s school that explains the requirement to undergo police vetting to be a volunteer at an upcoming school camp.

[37]   W concludes by accepting that she made “an extremely poor decision” and saying that she is angry with herself. She says she is not trying to avoid responsibility for her actions but just wants to get her life back on track, so she can support her daughter as best she can and provide for her and not be dependent on the State. She is asking the Court to give her a chance to avoid conviction and says she will not be back before the Court.

My assessment of the appeal

[38]   I consider the Judge erred when assessing the gravity of the offending (step 1). It is not the case that every breach of a protection order is serious, requiring the Court to uphold its integrity by entering a conviction.9 The seriousness of a breach is circumstance-dependent. In this case the offending involved persistent texting, but from a mother distressed about her daughter’s wellbeing. There is no suggestion that the complainant was fearful of the mother and there were no physical threats made to the complainant. The offending was very much at the low end of seriousness for this kind of offence. I therefore disagree with the Judge’s assessment that this was at the higher end of a low-level breach.

[39]   Additionally, an assessment of the gravity of the offending must take into account all the aggravating and mitigating factors relevant to the offending and the offender. Here, the Judge did not discuss any of W’s personal mitigating factors when assessing the gravity of the offending. He did discuss some of them when setting out the background and in considering the residual discretion. But this is no substitute for considering them in their correct place, at step 1, which then enables the correct proportionality assessment to be made.

9      See, for example, Deeming v Police HC Whangarei CRI-2008-288-61, 24 July 2009; O’Riley v Police HC Wellington CRI-2011-485-98, 11 February 2009; and Steele v Police HC Rotorua CRI-2007-463-151, 11 February 2009.

[40]   In this case there were several personal mitigating factors. First, there was W’s immediate acceptance of the offending when spoken to by the police, her guilty plea and her remorse. Second, W had no previous convictions. Third, W’s personality disorder explains why she continued to text the complainant despite being told not to by the complainant and the police.10 Fourth, she recognised the cause of her offending (namely, her difficulties with stress and anxiety and her consequential irrationality) and took immediate steps to address this with her counselling sessions. The Judge focussed on whether it had been shown that the counselling had modified W’s behaviour, but it was also to her credit that she recognised the cause of her offending and took steps to address it. When these personal mitigating factors are taken into account, the gravity of the offending falls at the very lowest end.

[41]   Turning to step 2, I agree with the Judge that the overseas study plans were too theoretical to be given much weight. However, the consequences of a conviction on employment were entitled to some weight. This was the kind of offending that on its face appeared more serious than it was. Once the circumstances of the offending are understood, it is not the kind of offending that ought to disqualify W from the type of work for which she is suited from her training and experience. However, as the further evidence makes plain, W may well not have the opportunity to explain the circumstances of the offending to prospective employers because the requirement to disclose her conviction may well mean she is disqualified from the role or that she will be rejected in favour of other applicants who have no convictions. As she says, it is already not altogether easy for her to secure and maintain work as a person in her forties with limited work experience, and as a single parent with the care of a young daughter and with her anxiety issues.

[42]   The affidavit filed in support of the appeal also provides evidence of other consequences. It is clear from W’s affidavit that she regards a conviction as quite a setback. I accept W’s evidence that having a conviction has increased her anxiety and stress. I accept also that, as a currently unemployed single parent, it is important to her to be able to contribute as a parent to school activities and that she may be unnecessarily disqualified from doing so because of her conviction.

10     Although the Judge had less detail about W’s personality disorder than is before me, there was sufficient information for it to have been taken into account.

[43]   I therefore accept that there are material consequences for W if she is convicted. I consider these consequences are out of all proportion to the gravity of the offending, which was at the very lowest level. I therefore consider W should be discharged without conviction.

Result

[44]   The appeal is allowed. W’s conviction is quashed and her application for a discharge without conviction is granted.

Mallon J