Walker v New Zealand Customs

[2021] NZHC 3380

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-157

[2021] NZHC 3380

BETWEEN

ANDREW WALKER

Appellant

AND

NEW ZEALAND CUSTOMS

Respondent

Hearing:	29 November 2021
Appearances:	M J Dyhrberg QC for Appellant J-H Kang for Respondent
Judgment:	10 December 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 December 2021 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland

WALKER v NEW ZEALAND CUSTOMS [2021] NZHC 3380 [10 December 2021]

[1]    Andrew Walker (the appellant) appeals the decision of Judge A-M J Bouchier of 10 March 20211 sitting in the District Court at Auckland convicting him of a charge of threatening a customs officer acting in the execution of his duties arising from events that occurred on 11 December 2019 during a meeting at Customhouse. 2 The appellant also appeals against Judge Bouchier’s decision of the same date declining his application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.3

Background

[2]    On the morning of 11 December 2019 the appellant who is a Director of Crawford and Walker, went to the Auckland Customhouse to discuss Customs suspension and deactivation of his company’s brokerage account and code for non- payment of $115,000 in customs duties. The appellant initially spoke with a Customs receptionist and three Customs Officers before asking to speak to someone more senior.

[3]    At around 9:30 am, Supervising Customs Officer Sun Jun (Officer Sun) and Customs Officer Earley (Officer Earley) met with the appellant in a meeting room at the side of the reception area. During the course of the meeting Officer Sun advised the appellant that the reason Customs would not reinstate the broker code was because the appellant had failed to answer questions put to him regarding unpaid customs duty. The appellant said that the suspension of his broker code was unfair, that it was ruining his business, and he started raising his voice and becoming increasingly agitated. Officer Sun then told the appellant that he was terminating the meeting, and he stood up and opened the door to enable the appellant and Officer Earley to leave the meeting room. The appellant, who had been seated, also stood up and went towards Officer Sun who was standing beside the doorway. As the appellant moved closer to Officer Sun he raised a clenched fist at him and said: “I’m going to smash you.” The appellant then followed the two Customs officers to the reception area of the building before leaving the building. Later that day he sent an email to Officer Sun which he also

1      New Zealand Customs Service v Walker [2021] NZDC 13662.

2      Customs and Excise Tax Act 2018, s 376(1)(a) and (3). Maximum period of imprisonment: 12 months’ or a fine not exceeding $15,000.

3      New Zealand Customs Service v Walker [2021] NZDC 13718.

copied to Customs Officer Earley and another Customs Officer who he had spoken to during his visit to Customs that morning, advising that he was arranging to pay the outstanding amount that day, and saying: “I apologise for my actions this morning”.

District Court Decisions

Judgment determining the whether the charge was proven

[4]    In her decision in relation to the charge, Judge Bouchier commenced by noting that as the term “threatens” as used in s 376(1)(a) of the Customs and Excise Act 2018 is not defined, she had obtained assistance from the commentary related to s 306 of the Crimes Act 1961.4

[5]    The Judge then summarised the evidence of the Customs Officers regarding their meeting with the appellant on 11 December 2019. The Judge noted the evidence of the Customs Officers who dealt with the appellant prior to his meeting with Officer Sun. She noted that Officer Wheeler gave evidence that the appellant had told her that he wanted his broker account reopened, and that when she had explained that it could only be done if payments were made and asked him when he would be making the payments, the appellant would not answer her questions. The Judge also noted that Officer Wheeler described the appellant during her conversation with him as being, “fidgety and agitated, constantly playing with his phone and pacing…”, and saying that he wanted to speak to a manager.5 Officer Wheeler then went and spoke to Officer Sun to advise him that the appellant wished to talk to him.

[6]    The Judge then summarised the evidence of the other Customs officers who spoke to and witnessed the appellant’s behaviour initially at the Customhouse reception counter, including Officer Myers and Earley who had both spoken to the appellant prior to the meeting with Officer Sun. The Judge noted that the witnesses also described the appellant as becoming agitated, pressing the numbers on his phone, his voice becoming louder and raised, asking for the Minister of Customs phone number, and asking to speak to someone more senior. The Judge noted that Officer Earley said that she had then gone and asked her senior supervising customs officer,

4      Crimes Act 1961 s 306, Threatening to kill or do grievous bodily harm.

5      New Zealand Customs Service v Walker, above n 1, at [5].

Officer Sun, to come and speak to the appellant, and that he had come to the reception area and had taken the appellant into an interview room where he and Officer Earley had sat down with the appellant to discuss the suspension of the appellant’s firm’s broker code and account.

[7]    The Judge summarised Customs Officer Earley’s evidence as to what then happened:6

[9]  …Customs Officer Sun Jun asked the questions and asked about the money from the outstanding account and then [the appellant] said to Customs Officer Sun Jun that he had received the money. He was agitated again and they were told they were ruining his life.

[10]     Then Customs Officer Sun Jun said the meeting was finished because they were not getting anywhere, the defendant was still fiddling with his phone, he was definitely agitated. Customs Officer Sun Jun went to open the door, she7 was to the side and to the rear and saw the defendant raised [sic] his fist, his right fist towards his head and he was directing it towards Customs Officer Sun Jun. She could not hear if he said anything, she only saw his fist, she was still in the room behind and he then put it down she said pretty fast. She was shocked, they left the room and Customs Officer Sun Jun said something about threatening a customs officer to the defendant. She did not really hear the defendant’s reaction to that, the defendant followed them and said he would pay. They went towards the lift, the lift opened up and they left.

[8]The Judge also summarised the evidence of Customs Officer Sun Jun:

[12]   Then I heard from Customs Officer Sun Jun who is the supervising customs officer and he said that on that day at about 10.10 that the Customs Officer Earley approached him and advised that they had been meeting with the defendant who was [at] customs [and] who was asking for reinstatement of his account and she declined and that [the appellant] had wanted to speak [to] someone more senior, that is himself, so he went down with her and met the defendant in a small meeting room.

[13]     They sat down, he said he started by advising the defendant that they were not reinstating his broker code because of failing to make a payment, quite a large amount. Customs Officer Sun Jun then said he asked [the appellant] if he had received payment for that approximately $115,000 from the customer. [The appellant] did not answer that specific question but stated that what we were doing was unfair, ruining his business and his cashflow was very tight.

[14]    The customs officer repeated the question to [the appellant] several times regarding payment, he said [the appellant]started raising his voice, he was quite agitated, fiddling with his phone, his expression was agitated and he repeated that [we] were unfair to suspend his broker code because cashflow

6      New Zealand Customs Service v Walker, above n 1.

7      Customs Officer Earley.

was tight and then he said [the appellant] was still agitated, the meeting lasted about six minutes and then Customs Officer Sun Jun said he felt that there was no point in continuing it because [the appellant] was repeating the same things and therefore he said that he was ending the meeting and after the customs officer ended the meeting, he stood up from his seat which was closest to the door, walked to the door, opened it and waited until the defendant and Customs Officer Earley went out. He said [the appellant] then stood and moved closer to him raised his arm with a clenched fist and said: “I’m gonna smash you,” or: “I’m going to smash you.” That was said at the time that [the appellant] raised his right hand with a clenched fist.

[9]    The Judge noted Officer Sun Jun said that he was surprised, shocked and uncomfortable but the appellant did not make any further physical advance towards him, and noted that Officer Sun Jun had told [the appellant] that he should consider the consequences of threatening a Customs Officer in a Customs office. The Judge recorded that the appellant had then left the Customs House premises.

[10]   The Judge also noted that the appellant gave evidence in his own defence and explained that he had gone to Customs House because his broker code had been deactivated and because he could not do any jobs as he invoices before he receives payment and needs to be paid first before he can pay Customs. Judge Bouchier noted that the appellant said that he recalled the meeting on 11 December and that he had been angry, but could not remember whether he had raised his fist, and did not recall using the words, but said that he knew that if someone threatens a customs officer that they would be in trouble. The Judge further noted the appellant’s evidence that in sending his email and apology he was only apologising for his raised voice, and that he did not think that he had made a threat.8

[11]   The Judge then went on to say that the threat must be of harm to any person and that the mens rea required is an intention that the threat be taken seriously or be taken as a threat which may be carried out. The Judge said that whether the threatener intends to carry out the threat is irrelevant, and the aim of the provision is to protect against fear and intimidation rather than against the commission of the threatened acts, and the intention must be such as to create in the mind of an objective listener the genuine fear that the threat might be carried out.9

8      New Zealand Customs Service v Walker, above n 1, at [18].

9      New Zealand Customs Service v Walker, above n 1, at [20].

[12]   The Judge noted that Customs Officer Sun Jun did feel threatened for a short period following the raising of the fist and the statement, “I’m gonna smash you”, and found the necessary elements of the offence proven beyond reasonable doubt, and convicted the appellant on the charge.

The s 106 judgment

[13]   In a separate judgment, Judge Bouchier then declined an application by the appellant to be discharged without conviction.10 The Judge outlined the orthodox approach to s 106 applications and noted that the appellant’s counsel was unable to show “in particular here any direct or indirect consequences” but instead relied on cases raising issues of conviction induced embarrassment, shame and stress.11 Brief mention is also made of the appellant’s plans for international travel when he retires and the difficulties he could face as a result of disclosing a conviction for the threatening offence, although this observation appears to have been made in the context of the shame he may experience, rather than the travel difficulties he would face. The Judge also referred to the consequences of a conviction on travel, but only in broad terms, also related to insurance declarations.

[14]The Judge concluded:12

[12]   I have considered carefully the application, taking into account I accept that this is a low level threat for short period of time, I am of the view that this does need still the fact that it occurred need[s] to be taken seriously by the entry of a conviction. I am not of the view that the consequences that the defence have referred to such as having to declare it if travelling or having to declare it when making other forms of declaration such as an insurance claim, or its other insurance issues, are such that this amounts to real and appreciable consequences that may occur and accordingly the test just simply is not met in my view.

[13]   Whilst I appreciate the issues of shame, issues of self-esteem and pride are factors that the Court can take into account here, they are not sufficient in my view in terms of the offending to show real and appreciable consequences and accordingly the application is refused. I am of the view that the prosecutor’s submission to the Court that a conviction and order to come up for sentence if called upon is the appropriate method of dealing with this matter and in my view that is the submission that I will accept and a conviction is entered in respect of [the appellant] and he is ordered to come up for

10     New Zealand Customs Service v Walker, above n 3.

11 At [6].

12     New Zealand Customs Service v Walker, above n 3.

sentence if called upon within four months should he commit any further offending and that is the sentence which I pass.

Submissions

Appellant

[15]   Ms Dyhrberg QC for the appellant submits that the conviction should be quashed and in the alternative that the appellant be granted a discharge without conviction.

[16]She advances three key propositions in support of the appeal:

(a)The Court erred in finding that the mens rea element of the offence had been satisfied;

(b)The Court erred in failing to give reasons for the finding that the threat was intended to be taken seriously; and

(c)The real and appreciable consequences of a conviction are wholly out of proportion to the gravity of the offence and consequently the appellant should be discharged pursuant to s 106.

Conviction appeal - incorrect test re intention

[17]   The first ground for the appeal against conviction is that the Judge applied the incorrect test in determining whether the mens rea requirement was met. Ms Dyhrberg says that at trial the appellant did not directly contradict the prosecution witnesses, or suggest in cross-examination that they were lying or mistaken. The primary trial issue was that of intent.

[18]   Counsel accepts that the Judge adopted the correct definition for “threatening” in referring to the use of that term in s 306 of the Crimes Act 1961 by analogy. However, Ms Dyhrberg submits that a criminal threat requires proof beyond reasonable doubt of:

(i)The actual making of a threat, being the actus reus. What constitutes a threat is a question of law to be decided on an objective standard; and

(ii)an intention that the threat be taken seriously.

[19]   Ms Dyhrberg says that whether the complainant takes the threat seriously is not an element of the offence. She submits that any subjective apprehension of a threat by a complainant is of evidential significance only.13 Counsel says that while it is accepted that the Judge did not err in her finding the actus reus was proven, she did err by treating the customs officer’s view that a threat was intended, as proof of the mental element of the offence. Ms Dyhrberg submits that by doing so, the Judge failed to focus on the real issue which was whether the appellant intended that his words and gesture be regarded by the customs officer as a genuine threat to be taken seriously.

Conviction appeal – no sufficient reasons given

[20]   As a second and alternative ground of appeal Ms Dyhrberg submits that the Judge erred by failing to give reasons for finding that the mens rea element of the charge was proven. Citing Sena v New Zealand Police14 regarding judge-alone trials, Ms Dyhrberg submits that a Judge’s failure to explain the reasons for their assessment of the evidence and to give reasons for finding the charge proven, frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c) of the Criminal Procedure Act 2011 (CPA).

[21]Ms Dyhrberg notes that in Reihana Duffy J observed: 15

Threats to kill made in a cold, clinical and detached manner may more readily suggest an intent for the threats to be taken seriously than will be the case when such threats are part of the rantings and ravings of an angry and agitated person bent on creating a major disturbance in order to have his own way. This is not to condone the latter behaviour; it is merely to question if it can of itself support an inference beyond reasonable doubt that the speaker of the threats intends them to be taken seriously.

13     Reihana v Police HC Auckland CRI-2009-404-205, 21 September 2009 at [6].

14     Sena v New Zealand Police [2019] NZSC 55 at [36].

15     Reihana v Police HC Auckland CRI-2010-404-159, 18 August 2010 at [20].

[22]   She submits that here the Judge ought to have explained why the words spoken by the appellant and the gesture he made were not of the “ranting” kind referred to by Duffy J Reihana and why she found that they were intended by the appellant to be taken seriously.

[23]   Ms Dyhrberg also submits that the Judge did not explain her reasons for finding that the appellant intended the threat to be taken seriously in terms that enabled him to understand why she had found that the mental element of the offence was proven, or conversely, why she found that the words and gesture had not occurred "in the heat of the moment" and without criminal intent.

[24]   Ms Dyhrberg accepts that if the appellant’s conviction appeal is allowed on these grounds the appropriate course would generally be for a retrial to be ordered rather than the charge being dismissed. She nevertheless submits that given the nature of the charge, the low level of gravity of the offending, and the penalty imposed, the appropriate course here, would be to adopt the approach previously taken by this court when dealing with cases of this kind, and for the appeal to be allowed without ordering a retrial.16

Conviction appeal - discharge without conviction

[25]   Ms Dyhrberg submits that in the event that the conviction appeal is dismissed, the appeal against the refusal to grant a discharge without conviction should be allowed, and an order made that the appellant be discharged pursuant to s 106 of the Sentencing Act 2002.

[26]   Ms Dyhrberg says that at the hearing in the District Court, after the Judge had determined the charge and before the appellant’s counsel applied for a discharge without conviction, the appellant’s counsel had applied for an adjournment before sentencing to enable the preparation and filing of affidavit evidence in support of an application for a discharge without conviction. The application was dismissed by the

16     Wederell v Police HC Christchurch CRI-2010-409-000033, 4 March 2010 at [15]-[16]; Reihana v Police, above n 15, at [27].

Judge who required the sentencing to proceed, and as a result the appellant was unable to place relevant evidence before the Court to support his application.

[27]   Ms Dyhrberg says that the appellant accordingly seeks leave to adduce fresh evidence for the purposes of his appeal by way of an affidavit in which he provides details of the adverse effects of a conviction on his plans for future international travel, and upon his reputation, also an affidavit by Ms Mahinarangi Tangaere who is a solicitor specialising in immigration law, regarding the likely consequences of a conviction on the appellant’s ability to travel internationally in the future. Counsel submits that in the circumstances the evidence contained in the two affidavits is both credible and fresh in that it could not, with reasonable diligence, have been obtained prior to sentencing. Ms Dyhrberg further submits that even if the evidence is not considered fresh, it is clearly credible and ought to be admitted in the interests of justice given the circumstances in which the appellant was prevented from filing evidence to support his application for discharge without conviction.

[28]   Counsel submits that the appellant’s offending as found by the Judge is at the lowest end of the spectrum in terms of gravity, and had occurred in circumstances where the appellant was already under considerable pressure by reason of cashflow difficulties his business was experiencing and the suspension of his firm’s customs code which was essential to its operation. She says that the appellant became agitated when he saw that his attempt to resolve the problem by a request to Customs for immediate reinstatement of his firm’s customs code was not going to be agreed to. Ms Dyhrberg notes that almost immediately after the alleged threat occurring in the meeting room, the appellant was “on the receiving end of some stern words” from Officer Sun Jun about the consequences of threatening a customs officer while in the reception area before the appellant left the building, and that the appellant had subsequently sent “an apology of sorts later in the day.”

[29]   Ms Dyhrberg says the appellant’s personal mitigating factors were: previous good character and at age 63 he had no prior convictions; he is “mathematically [an] insignificant risk of reoffending”; and that the comparatively low level of offending has resulted in him becoming involved in expensive legal proceedings which have taken on a life their own and which may be seen as being wholly out of proportion to

the gravity of the incident. She submits that these mitigating personal factors together with the low level gravity of the offending reflected by the sentence imposed requiring the appellant to come up for sentence if called upon within four months, provide the starting point for comparison with the consequences of conviction to be undertaken in determining whether they are out of all proportion to the gravity of the offending.

[30]   Ms Dyhrberg submits that there are two significant consequences of a conviction. First, the effect of a criminal conviction on the appellant’s ability to travel internationally in the future. Second, the stigma of a conviction.

[31]   She notes that the appellant plans to retire at age 65 and upon retirement he and his wife have long-awaited plans to travel internationally as frequently as possible. To that end he and his wife are members of a time share company which offers accommodation to its members all around the world. Although the appellant wishes to travel internationally with his wife as tourists, he also wishes to visit his brother who lives in the USA, members of his wife’s family who live in Australia and a nephew who lives in Norway.

[32]   Referring to the matters set out in Ms Tangaere’s affidavit, Ms Dyhrberg says that the appellant’s ability to undertake visa free travel will not be possible following the entry of a conviction. While it is accepted that he will still be able to apply for visas or waivers, doing so will involve relying on unpredictable discretionary decisions of immigration authorities. Ms Dyhrberg submits as a result that there will be a “real and appreciable” risk of the appellant’s visa applications being declined, particularly for entry to the USA.

[33]   Turning to the second significant consequence of conviction namely the associated stigma, Ms Dyhrberg submits that the entry of a conviction itself is a consequence to be weighted in the s 107 analysis.17 She says that the Court should be slow to enter a conviction for comparatively minor offending against a defendant of otherwise good character appearing for the first time in his sixties. She submits that the real and appreciable consequences of conviction will be out of all proportion to the

17     DC v R [2013] NZCA 255 at [44]. See also: Thomas v Police HC Auckland CRI-2011-404-242, 31 October 2011 at [22], and Tait v Police [2015] NZHC 1601 at [30].

gravity of the offending and what was a fleeting and out-of-character mistake on the appellant’s part, and which could significantly frustrate the plans of an otherwise decent and productive community member, who was hoping to enjoy his retirement years in peace without ongoing shame and embarrassment of a criminal conviction.

Respondent

[34]   Mr Kang for the respondent submits that the appeal against conviction should be dismissed as the mens rea element of the offence was made out and the Judge provided appropriate reasons to support her finding. As regards the s 106 appeal, he submits that the consequences of conviction relied on by the appellant as presenting a potential barrier to future international travel and the shame of a conviction are not out of all proportion to the gravity of offending

Approach on appeal against conviction

[35]   The appellant appeals against conviction pursuant to s 229 of the CPA. Pursuant to s 232(2)(b) of the Act, the first appeal court must allow an appeal in the case of a Judge-alone trial if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.18 A miscarriage of justice is defined as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or that has resulted in an unfair trial, or the trial was a nullity.19

[36]   The Supreme Court in Sena v New Zealand Police20 has confirmed that the approach adopted in Austin, Nichols & Co Inc v Stichting Lodestar21 in respect of civil appeals conducted by way of re-hearing is also applicable to criminal appeals under  s 232(2)(b).

18     Criminal Procedure Act 2011, s 232(2)(b).

19     Section 232(4).

20     Sena v New Zealand Police, above n 14, at [32].

21     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

Discussion

[37]   There is no real dispute as to whether the appellant spoke and addressed the words, “I am going to smash you” to Customs Officer Sun Jun while also raising his arm with a clenched fist. Two prosecution witnesses gave evidence of this occurring and of the circumstances in which it took place and that immediately prior to making the threat, the appellant had been exhibiting signs of agitation and had been raising his voice. The appellant in evidence said he did not remember what he had said or done, but accepted that he had been angry and had raised his voice, and that he had sent an email to Customs Officer Sun Yun later that day apologising for his “actions this morning.” On the basis of the evidence the Judge was undoubtedly correct to find that the facts of the alleged offending had been proved beyond reasonable doubt.

[38]    The key issue as regards this aspect of the appeal is whether the Judge correctly addressed the issue of the appellant’s intention when speaking the words and making the gesture, and specifically whether she was satisfied beyond reasonable doubt that the appellant intended that his threatening words and gesture should be taken seriously by Customs Officer Sun Jun.

[39]   In her decision the Judge identified what was required to be proven in relation to a charge brought under s 376(1)(a) of the CEA. She said:22

[19]   I then had submissions from both the Crown and the defence regarding what is a threat and as the parties have submitted to the Court that this is not defined in the Customs and Excise Act that the commentary pursuant to s 306 of the Crimes Act is of assistance to the Court. That charge of course is threatening to kill or do grievous bodily harm.

[20]  The commentary states in regard to the nature of a threat, the threat must be of harm to any person and further the mens rea required is an intention that the threat be taken seriously or to be taken as a threat which may be carried out. [Defence counsel] referred me in particular to the case of Wederell v Police that [sic] where it was said that criminalising threats whatever their impact that it cannot be shown to be intended to be taken seriously would risk catching remarks made in the heat of the moment which are not of a sufficient degree of seriousness to amount to a crime. There are other cases which state further on in the commentary that whether the threatener intends to carry out the threat is irrelevant. The aim of the provision is to protect against fear and intimidation rather that the commission of the acts threatened and the intention must be to create in the mind of an objective listener the genuine fear that the threat might be carried out.

22     New Zealand Customs Service v Walker, above n 1.

(footnotes omitted)

[40]   Having identified those principles and having accepted the evidence of the Customs Officers as to what the appellant said and did, the Judge also noted that Officer Sun Jun had taken the words and gesture seriously and had felt threatened, albeit for a short period. She then said:23

[24] Therefore looking at those factors which I accept as being proven, because what is required to be proven to the necessary standard of beyond reasonable doubt is that the factors that we have been referring to in the commentary to s 306 that there was a threat made and that it was intended to be taken seriously and that this should be looked at by an objective listener. Well as an objective listener I am satisfied that those actions do constitute a threat because I am satisfied that the gesture was made, the words were used and that for a brief period of time that Customs Officer Sun Jun felt threatened. Those facts I accept are proved to the standard of beyond reasonable doubt and accordingly as the fact that the officer is a customs officer and that he [sic] acting in the execution of his duties is not at issue, those are sufficient to prove the charge to that standard and therefore there will be a conviction entered.

[41]   Although in these concluding remarks the Judge did not specifically refer to the appellant’s intention when speaking the words and making the gesture, and referred to Customs Officer Sun Jun feeling threatened, I do not consider that shows she failed to address the issue of whether the appellant had intended his threat to be taken seriously. The Judge at [20] had correctly noted the mens rea element of the offence required proof that the defendant meant the threat to be taken seriously and having regard to her decision as a whole I am satisfied that the Judge was satisfied that that the appellant did intend his words and gesture to be taken seriously at the time he spoke the words and made the clenched fist gesture. The Judge’s reference to Officer Sun Jun’s reaction to the threat and to having felt threatened was evidence that was relevant to the issue of whether the appellant had intended his words and gesture to be taken seriously, as his intention when speaking the words and clenching his fist could be inferred not only from that tone, nature of and context of the threat, but also from the effect it had on the person it was directed to.24

[42]   A failure to expressly refer to having found that the appellant intended that his words and gesture be taken seriously does not amount to an error of law or an error in

23     New Zealand Customs Service v Walker, above n 1.

24     Reihana v Police, above n 13, at [6].

the Judge’s assessment of the evidence that requires the decision to be set aside. In my view it is implicit from the Judge having identified that the mens rea element required proof that the appellant intended the threat to be taken seriously, and her finding that she was satisfied that the elements of the offence had been proven beyond reasonable doubt, that she was satisfied that he did intend his words and gesture to be taken seriously.

[43]   I am also satisfied that the Judge did provide reasons for her conclusion that the appellant intended that his words and gesture be regarded as a threat and were intended by him to be taken seriously. The Judge explained that she accepted the evidence of the Customs Officers regarding the appellant’s increasingly agitated behaviour, his raised voice and frustration at not being able to get them to agree to reinstate his firms customs code. In this context the remarks he made could not possibly be regarded as being light hearted or jocular, and they were expressed seriously and deliberately. At [24] the Judge explained that she was satisfied that the required elements of the offence were proven, and read as a whole there can be no doubt as to the Judge’s reasoning and the evidential basis of her conclusion that the appellant intended his threatening words and gesture to be taken seriously. With the words “I’m going to smash you” being accompanied by a clearly aggressive clenched fist gesture, in the context of a meeting in which the appellant was emotive, agitated and admittedly angry, there could be no other explanation for his having made the remarks than that he intended that his threat be taken seriously.

[44]   I accordingly also reject the appellant’s ground of appeal alleging that the Judge failed to give reasons for finding that the threat was intended by him to be taken seriously. I shall therefore dismiss the appeal against conviction on the grounds alleging errors by the Judge in her assessment of the evidence and the reasons she gave for her conclusion that the elements of the charge, and specifically the element of the appellant’s intention, were proven beyond reasonable doubt.

Applicable principles on discharge without conviction appeals

[45]   I now turn to the appeal against the Judge’s decision declining the appellant’s application to be discharged without conviction.

[46]   Here the appellant must show that a miscarriage of justice has occurred as a result of a material error by judge in entering a conviction, or that a miscarriage of justice has occurred as a result of an error by the Judge applying the correct principles found in s 107 of the Sentencing Act 2002.25

106Discharge 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.

....

107Guidance 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.

[47]   In considering whether there is  jurisdiction  to  discharge an  offender under s 106, a court is required to undertake a three-stage analysis. The court must assess:

(a)first, the gravity of the offence;

(b)second, the direct and indirect consequences of a conviction; and

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

[48]   The three-stage test requires an evaluative judgment and is not a matter of discretion.26 Once the court determines that the consequences of a conviction would be out of all proportion to the gravity of the offending, the court may then consider whether to exercise its discretion to grant the discharge without conviction, but it is likely to be only in a rare case that a discharge does not follow where the jurisdiction

25     Jackson v R [2016] NZCA 627 at [12].

26     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and Blythe v R [2011] NZCA 190,

[2011] 2 NZLR 620 at [12]–[13].

to grant it is found to exist.27 The ordinary principles governing general appeals apply and this Court must reach its own conclusion on the merits.28

Discussion

[49]   In assessing whether a miscarriage of justice has occurred I must first consider the gravity of the offence. In making an assessment of this nature the Court should consider all the aggravating and mitigating factors relating to the offending and the offender.29 Judge Bouchier accepted that the threat was: “a low level threat [made] for a short period of time”.30 However, in the Judge’s view this needed to be taken seriously by the entry of a conviction.

[50]   In my view the offending in this case was at the lowest end of the scale of seriousness. The threat arose from circumstances in which the appellant was under considerable pressure because of the impact on his business of the suspension of the firm’s customs code. The threatening words were spoken, and the gesture made in circumstances where the appellant was angry and frustrated and he clearly lost his usual self-control. While he intended the threat to be taken seriously, he very soon afterwards regretted his actions and apologised in writing to the Customs Officers involved. I also consider that there are significant mitigating factors which are relevant to and inform my assessment of the gravity of the offending. The appellant at 63 years old has no previous convictions and is entitled to substantial credit and mitigation on that basis. He was himself a Customs Officer for 14 years before commencing business as a customs brokerage and clearance agency in 1992. Set against his history of compliance with Customs and his previous service as a Customs Officer himself, the appellant’s action of threatening a Customs Officer is appropriately to be seen as a temporary lapse from his well established and usual high standards. I note appellate guidance which states that:31

27     Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; citing Blythe v R, above

n 26 at [13].

28     Austin, Nichols & Co Inc v Stichting Lodestar, above n 21.

29     Z v R, above n 27, at [27], DC v R, above n 17, at [35]; Waine v R [2017] NZCA 287 at [21]; Rahim v R [2018] NZCA 182 at [15].

30     New Zealand Customs Service v Walker, above n 3, at [12].

31      R v Howe [1982] 1 NZLR 618 (CA) at 629.

Persons who have shown themselves generally law-abiding citizens of good character are usually entitled to invoke their creditable record in mitigation when they come before the Courts, even for quite serious offences.

[51]   It would be an error in principle to fail to take account of evidence of previous good character on sentencing.32 The gravity of the offence is correctly characterised as very low.

The consequences of a conviction

[52]   I accept that the evidence contained in Ms Tangaere’s affidavit is credible and fresh evidence, that could not be obtained prior to the sentencing which followed immediately after the Judge’s decision finding the charge proven and straight after the Judge had declined an application by the appellant’s counsel for an adjournment to enable evidence to be assembled and filed in support of an application for discharge without conviction. The respondent accepts that the appellant’s counsel sought an adjournment of sentencing to enable him to present evidence regarding the consequences of a conviction for the appellant. Having regard to these circumstances, I have no hesitation in granting the appellant leave to adduce the fresh evidence contained in the affidavits of the appellant himself and of Ms Tangaere.

[53]   In her affidavit Ms Tangaere, who specialises in the field of immigration law, explains that the appellant will be ineligible to travel to the USA under the “ESTA” visa-waiver programme, and will be required to declare his conviction and likely face difficulty obtaining a visa. Ms Tangaere says that the appellant will need to apply to the US Embassy for a visa, and attend an interview with a consular officer and present a copy of his criminal history report, and the officer would determine his eligibility on the basis of its contents and other eligibility criteria. Ms Tangaere says that if it was determined that the appellant’s conviction made him ineligible to travel to the USA the consular officer would then decide whether or not to submit a request for waiver of his ineligibility to the US Customs and Border Protection’s Admissibility Review Office. Ms Tangaere notes that a recommendation for a waiver is at the sole discretion of the interviewing consular officer and a decision may take six to eight months. She further explains that the US Department of Homeland Security will consider factors

32     See Manawaiti v R [2013] NZCA 88 at [15]; Rana v R [2014] NZCA 468 at [16].

such as the maximum penalty of an offence for which a conviction has been entered as well as the length of time that has elapsed since the offending occurred. She says that given the recency of the appellant’s offending and the maximum penalty for an offence under s 376(1)(a) and (3) of the Customs and Excise Act it is unlikely that he would be permitted to enter the United States in the immediate future, and his ability to travel to the US at a later date would remain uncertain. Ms Tangaere also notes that the appellant is likely to be unable to access visa free travel to Australia and be required to make a full visitor visa application to be considered for entry to Australia. It is noted that Mr Walker would also likely face difficulty in travelling to Europe.

[54]   Ordinarily, the Court is reluctant to accord much weight to tentative travel plans in the s 107 context.33 However, those cases were not decided in the context of the global COVID-19 pandemic, where plans for international travel could be readily made. In the context of the present COVID-19 restrictions on international travel from New Zealand and entry back into New Zealand, the absence of any present and firm travel arrangements does not prevent weight being attached to this factor as a being a “real and appreciable risk” of occurring, as a consequence of the conviction.

[55]   Having regard to the low level of gravity of the offending which is informed by significant personal mitigating factors, I am satisfied that the difficulties that the appellant will face in making travel arrangements and obtaining visas for international travel during his retirement years and specifically the difficulties, delays and uncertainties he would face in obtaining a visa to enable him to visit his brother in the United States and other family members and to otherwise travel internationally upon retirement as he has planned to do, is out of all proportion to the very low level of the gravity of his offending.

[56]   However I do not accept that the reputational consequences of a conviction for the appellant are any more significant that is generally the case for anyone convicted of an offence of this kind, and certainly not out of all proportion to the gravity of the offending.

33     Brunton v Police [2012] NZHC 1197 at [16].

[57]   As the Judge declined the appellant’s application for an adjournment of the sentencing and application for discharge without conviction, the detailed expert evidence contained in the affidavit of Ms Tangaere and the matters set out in the appellant’s affidavit were not before the District Court. Having considered that evidence I am satisfied that there is a real and appreciable risk of the adverse consequences identified and described in the affidavit of Ms Tangaere occurring in relation to the appellant’s ability to travel internationally in the future and that the risk of those consequences occurring is out of all proportion to the gravity of the appellant’s offending, and having reached that conclusion I find that there is no basis upon which to exercise the discretion against granting a discharge without conviction.

[58]   I am therefore satisfied that the Judge erred by declining to grant the appellant’s application for a discharge without conviction.

Result

[59]   The appeal against the decision of the District Court Judge to enter a conviction is dismissed.

[60]   The appeal against the decision of the District Court Judge to decline the appellant’s application for discharge without conviction is allowed, and the conviction entered is accordingly quashed.

[61]   I make an order pursuant to s 106(1) of the Sentencing Act 2002 that the appellant be discharged without conviction.

[62]   I also make an order pursuant to s 106(3)(a) of the Sentencing Act 2002 that the appellant pay costs to the Crown in the sum of $500.00.

Paul Davison J