W v Police HC Wellington CRI-2006-485-147
[2007] NZHC 183
•20 March 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2006-485-147
CRI-2006-485-148
BETWEEN W
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 13 March 2007
Appearances: P Knowsley for Appellant
N L K Stone for Respondent
Judgment: 20 March 2007
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the20th day of March 2007.
RESERVED JUDGMENT OF GENDALL J
[1] This is an appeal against the refusal of a District Court Judge to discharge the appellant without conviction pursuant to s106 of the Sentencing Act 2002. The appellant had pleaded guilty to three charges of breaching a protection order contrary to s19(1) of the Domestic Violence Act 1995 and was convicted and ordered to come up for sentence if called upon within eight months. But the Judge declined an application by counsel for the appellant for a discharge without conviction.
Background facts
[2] The essential facts are that on 7 July 2006 the appellant was served with a temporary protection order which had been obtained on behalf of his wife. Their
relationship had broken down. The appellant was permitted by the complainant to
W V NEW ZEALAND POLICE HC WN CRI-2006-485-147 20 March 2007
remain in the family home, she having left it, on a temporary basis until 21 July
2006. On that date the appellant telephoned the complainant requesting to meet her. She declined and verbal abuse followed. Further telephone calls followed. The complainant asked the police to remove the appellant from the property. They arrived to find the appellant gone. About two hours later the complainant returned to the home to find the appellant’s vehicle was parked outside it. She called the police. The appellant then followed her in his car down an adjacent street, as she was going to neighbours. The appellant admitted the facts but said he wanted to talk to the complainant and had returned to their home to collect a heater. He was charged with breaching a protection door through entering the premises occupied by the complainant and through telephoning her on 21 July 2006.
[3] He was remanded on bail on a number of conditions one of which was not to enter the valley in which the complainant lived. But he breached that condition. On
16 October 2006, in breach of the protection order and bail, he returned to the home, taking a number of photographs, including one of a lock to a gate. The surveillance system revealed that the appellant had been to the home and the police were notified. When interviewed, he denied being at the property but retracted that denial when shown the surveillance photographs.
[4] The appellant pleaded guilty to breaching the protection order on 16 October
2006, when he appeared on 24 October 2006, having spent four days in custody for offending whilst on bail.
[5] The appellant was a prison officer employed by the Department of Corrections. The Judge adjourned the sentencing so that a psychiatric report could be obtained. The Judge noted that repeated breaches of the protection order had caused the complainant anguish and stress and noted that the psychiatrist expressed the view that the appellant lacked any real insight into the seriousness of his actions and that he posed a small risk to his wife and children and would benefit from counselling. The Judge said the aggravating features were the offending over a three month period during which time the appellant was before the Court on a similar charge, and the Judge said:
“I am also very concerned about the reasons why you took a photograph of the lock on the gate.”
[6] The Judge took as mitigating features the pleas of guilty and the fact that the appellant was virtually a first offender. The Judge then discussed what he called the critical issue as to whether there should be a discharge without conviction and in order to do so he said he had to be satisfied that the consequences of such conviction would have been out of all proportion to the gravity of the offences themselves. The Judge then discussed what he saw to be other matters relevant to the gravity of the actions and expressed concern about the pattern displayed by the offending as a whole. He noted that the consequences of conviction turned upon potential jeopardy to the appellant’s employment. He said, however, that the Code of Conduct (which he had before him) required of officers was such that the appellant:
“was at serious risk of losing [his] employment whether [he was] convicted or not.”
[7] The Judge observed that the appellant had breached a Court order on three occasions and whilst on bail. The Judge concluded:
“In my view your employer is the person best equipped to make a decision about your future employment. The fact of conviction while a material fact for the employer to consider but it cannot be said to be a determinative fact. Your employer will undoubtedly assess all matters, including your work performance over the last two years. Your employer, for example, can have full regard to your denial of the most recent offence to the law enforcement officer investigating the matter and your breach of bail.”
[8] The Judge went on to say:
“The fact of conviction as a mark is important in this particular area of offending. The whole essence of the domestic violence legislation underpinned by the very description of the order itself, a protection order, is that it is protective in nature. It is important, in my view, that in future there be a record available of such breaches.”
[9] The Judge concluded that he was not satisfied the consequences of conviction were out of all proportion to the gravity of the offending because although the offending was towards the lower end of the scale it was not trivial and the consequences of conviction were not inevitable because the appellant might be dismissed regardless of what happened.
Counsel’s submissions
[10] Mr Knowsley, counsel for the appellant, submitted that the Judge erred in the exercise of his discretion because he failed to properly analyse what counsel said were three steps required to be undertaken in determining whether a discharge without conviction should be granted. Mr Knowsley submitted that those steps were first that the gravity of the offending had to be assessed; secondly, the direct and indirect consequences of conviction had to be identified; thirdly, a determination had to be made whether the direct and indirect consequences of a conviction would be out of proportion to the gravity of the offending. Counsel submitted that because the Judge said that the appellant might well be dismissed from his employment in any event, he failed to properly identify the direct and indirect consequences of the conviction. Counsel submitted that the fact that an appellant might be dismissed in any event because of offending, does not diminish the fact that he is likely to lose his employment if convicted. Counsel submitted that if the Judge did not get the second step in the process correct then any balancing exercise would lead to an “inaccurate result”. Counsel submitted that if there was any situation confronting a defendant where his conduct might lead to dismissal from employment, you could not ever obtain a discharge if the Judge concluded that you might lose your employment anyway.
Discussion
[11] The three-step process counsel identified arises out of the decision of Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA). That case dealt with s42 of the Criminal Justice Act 1954 which became s19 of the Criminal Justice Act 1985. To a large measure it contains provisions to the present s106 but the statutory provisions then did not include what is now s107. That 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 to the gravity of the offence.”
[12] That case was concerned with the consequences of entering a conviction in a case where forfeiture of a fishing vessel worth $65,000 was to follow upon what a
Magistrate found to be a minor breach of fisheries legislation. Richardson J (as he then was) when dealing with the approach to the then s42 said, at 241:
“Section 42 confers an unfettered discretion on the Court to give an absolute or conditional discharge without conviction in any case where a minimum penalty is not provided for. In the exercise of that discretion the Court must take all relevant considerations into account and must ignore all irrelevant considerations. The real question then is whether statutory consequences of a conviction may be taken into account and given appropriate weight as considerations relevant to the exercise of the discretion. Put in that way, there can be only one answer. In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it,
‘after inquiry into the circumstances of the case’, which must refer to all the circumstances that are relevant in the particular case before the Court. It
must have due regard to the nature of the offence and to the gravity with
which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42.”
[13] It can be seen that the present s107 may have been enacted to record or reflect that judicial pronouncement. Section 107 is expressed in the negative; that is, the Court must not discharge an offender without conviction unless satisfied as to the pre-requisite matters. The exercise of the discretion is based upon whether there are relevant circumstances, relating to the offender and the public interest, which will include whether the fact of a conviction outweighs to a large extent (is out of all proportion) the gravity of the offence. That is a matter for judgment for the sentencing Judge and provided that relevant considerations are considered and irrelevant considerations disregarded an appellate Court will not lightly interfere with the exercise of that discretion.
[14] There may be many circumstances which justify a Judge exercising his or her discretion to discharge without conviction. They may relate to the personal circumstances of an offender, their family, work considerations, past behaviour or actions, future travel or career aspirations, a trivial offence, but whatever the reasons advanced for a discharge there is a statutory prohibition from such a discharge unless the appellant can pass through the gateway that the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the
gravity of the offence. The test of the gravity offence is the effect of the conviction viewed against the gravity of the offence. When the Judge said that the consequence of loss of employment was not inevitable but was a matter for the employer he was simply stating a matter of fact. Namely, that the appellant had not persuaded the Judge that if the conviction was entered dismissal of employment would inevitably flow from that conviction. This was a case where simply by virtue of a plea of guilty, in the circumstances, which included several offences and offending whilst on bail leading to a remand in custody, that the Code of Conduct for Corrections Officers might apply.
[15] I do not accept counsel’s submission and intricate argument that the Judge erred when assessing direct and indirect consequences of a conviction, opined that loss of employment might arise in any event. Obviously, if the consequence is to follow irrespective of conviction then s107 will have no application unless there are other consequences to follow upon the conviction. What may be the consequence that follows upon conviction, it must still be out of all proportion to the gravity of the offence, to the satisfaction of the Court, before it may exercise its discretion for discharge. That discretion still remains and s107 is simply a restriction on the exercise of the discretion.
[16] Despite the semantic argument on behalf of the appellant I am satisfied the Judge was well aware of the jeopardy a conviction may have placed upon the appellant’s employment. I do not think the Judge ignored that consideration because he said that the fact of conviction was a material fact for the employer but in the circumstances of this case where there was a separate Code of Conduct which applied a conviction could not be said to be “determinative”. There is nothing wrong with that approach by the Judge. He did not regard the offending as trivial, although falling in at the lower end of culpability for breaches of protection order. But he regarded the circumstances and the pattern displayed by the offending as a whole, also whilst on bail for similar offending, as something that was of concern.
[17] I am not satisfied that the Judge erred in principle. He was cognisant of identifying what might happen even if a discharge without conviction was granted.
The Judge was entitled to decline to discharge under s106. He did so after taking into account all mitigating and aggravating features, and said:
• “I am concerned about the circumstances of the breach on 16 October, and the pattern displayed by the offending as a whole.”
• “On 16 October [the appellant] breached the protection order again. By virtue of what [he did he] also breached bail.”
• “Of concern was a photograph of a lock to a gate that [the appellant]
took.”
• “I am also very concerned about the reasons why you took a photograph of a lock on the gate.”
• “The fact of conviction as a mark is important in this particular offending….It is important, in my view, that in future there be a record available of such breaches.”
[18] The Judge’s conclusion that he was “not at all satisfied that the consequences of conviction are out of all proportion to the gravity of the offending” and that conclusion was open to him. In any event, a re-assessment by the Court of all the circumstances, and material submitted by or on behalf of the appellant, leads me to the same view. That being the case the provisions of s107 prohibit the exercise of any discretion to discharge. It follows the appeal must be dismissed.
……………………………..
Solicitors:
Surridge and Co, Porirua for AppellantCrown Solicitor, Wellington for Respondent
J W Gendall J
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